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Gammons v. City of New York

Supreme Court of New York, Second Department

July 17, 2013

Allison Gammons, respondent-appellant,
v.
City of New York, et al., appellants-respondents. Index No. 1901/09

APPEAL by the defendants, in an action to recover damages for personal injuries, as limited by their brief, from so much of an order of the Supreme Court (Kenneth P. Sherman, J.), dated February 25, 2011, and entered in Kings County, as denied that branch of their motion which was for summary judgment dismissing the cause of action to recover damages based upon a violation of General Municipal Law § 205-e, and CROSS APPEAL by the plaintiff from so much of the same order as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence. Justice Miller has been substituted for former Justice Belen (see 22 NYCRR 670.1[c]).

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Margaret G. King, and Michael Shender of counsel), for appellants-respondents.

Oshman & Mirisola, LLP, New York, N.Y. (David L. Kremen of counsel), for respondent-appellant.

PETER B. SKELOS, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN ROBERT J. MILLER, JJ.

OPINION & ORDER

LEVENTHAL, J.

On this appeal, we consider, among other things, whether the decision of the Court of Appeals in Williams v City of New York (2 N.Y.3d 352) warrants a departure from our holding in Balsamo v City of New York (287 A.D.2d 22). Stated differently, we primarily address the issue of whether Labor Law § 27-a(3)(a)(1) constitutes a sufficient statutory predicate for a police officer's cause of action to recover damages pursuant to General Municipal Law § 205-e even though Labor Law § 27-a does not provide for a private right of action. For the reasons discussed below, we adhere to our determination in Balsamo, and conclude that Labor Law § 27-a(3)(a)(1) can constitute a sufficient statutory predicate for a police officer's cause of action to recover damages pursuant to General Municipal Law § 205-e.

The plaintiff was employed as a police officer by the New York City Police Department (hereinafter the NYPD). In September 2008, while on duty, she allegedly was injured when she fell from a police flatbed truck while loading wooden police barriers onto it. The plaintiff thereafter commenced this action against the City of New York and the NYPD to recover damages for common-law negligence and pursuant to General Municipal Law § 205-e, predicated upon a violation of Labor Law § 27-a, which sets forth safety and health standards for public employees. At her deposition, the plaintiff testified that on September 18, 2007, she was assigned to "barrier truck detail." Her duties that day were to load a police flatbed truck with wooden barriers and to take the barriers to certain locations around the city. The plaintiff and a fellow officer were positioned on the truck and received the barriers that were pushed up onto the truck by two other officers. Describing the accident, the plaintiff stated that while she was standing at the rear of the truck, holding one end of a wooden barrier with both hands, the second officer gave the beam a hard push, causing the end of the barrier to make contact with the plaintiff's chest. The plaintiff fell backwards off the rear of the truck onto the street, sustaining injuries.

The plaintiff further testified that the truck on which she was working was equipped with side railings that were approximately three feet high; however, there was no railing on the rear of the truck. She added that, at the time of the accident, the NYPD had newer flatbed trucks which were longer than the subject flatbed truck, and had a backing in the rear to enclose them. According to the plaintiff, the shorter, older flatbed truck on which she was working could not accommodate two officers and the wooden barriers because the barriers were longer than the truck's bed. However, the newer, longer flatbed trucks could accommodate two officers and the wooden barriers.

Following discovery, the defendants moved for summary judgment dismissing the complaint. The defendants argued that the so-called "firefighter rule" (see General Obligations Law § 11-106[1]) barred the common-law negligence cause of action, and that the cause of action to recover damages based upon a violation of General Municipal Law § 205-e should be dismissed because Labor Law § 27-a was not a proper statutory predicate for a General Municipal Law § 205-e cause of action. In support of their position that the General Municipal Law § 205-e cause of action should be dismissed, the defendants contended that Labor Law § 27-a did not provide a private right of action to recover damages for personal injuries. Rather, the defendants asserted that the sole remedy for an alleged Labor Law § 27-a(3)(a)(1) violation is an administrative proceeding commenced by the Commissioner of the New York State Department of Labor. In the alternative, the defendants maintained that even if Labor Law § 27-a(3)(a)(1) were a proper predicate, the truck was not a "recognized hazard" as defined by that statute, since the truck was not defective.

In opposition, the plaintiff argued that the firefighter rule did not bar her common-law negligence cause of action because she was not injured as a result of a heightened risk associated with a police function. Moreover, the plaintiff argued that Labor Law § 27-a(3)(a)(1) was a proper statutory predicate for the General Municipal Law § 205-e cause of action, and that a fall from a truck was a "recognized hazard" pursuant to that statute. Alternatively, the plaintiff argued that the defendants violated Labor Law § 27-a(3)(a)(2) and 29 CFR 1910.23(c)(1) by failing to equip the back of the truck with a railing. In addition, the plaintiff requested that the court search the record (see CPLR 3212[b]) and award her summary judgment on the issue of liability on the General Municipal Law § 205-e cause of action.

The Order Appealed From

In an order dated February 25, 2011, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for common-law negligence. The court determined that at the time of the accident, the plaintiff was engaged in an act in furtherance of a specific police function which exposed her to a heightened risk of falling off the rear of the flatbed truck, and, because of the firefighter rule, the plaintiff could not recover damages for common-law negligence. However, the court denied that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages pursuant to General Municipal Law § 205-e. The court held that based upon precedent from this Court, Labor Law § 27-a(3)(a)(1) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e.

The defendants appeal, the plaintiff ...


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