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Mulham v. City of New York

Supreme Court of New York, Second Department

October 16, 2013

Donald Mulham, appellant,
v.
City of New York, respondent. Index No. 101754/09

Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y. (Joseph L. Decolator of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. Kristin M. Helmers and Janet L. Zaleon of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages pursuant to General Municipal Law § 205-e, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), entered June 11, 2012, as granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action pursuant to General Municipal Law § 205-e insofar as predicated on a violation of New York City Health Code (24 RCNY) § 153.19.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the cause of action pursuant to General Municipal Law § 205-e insofar as predicated on a violation of New York City Health Code (24 RCNY) § 153.19 is denied.

The plaintiff, a sergeant in the New York City Police Department, pursued a suspect on foot into a wooded, vacant lot owned by the City of New York. The lot was strewn with debris such as radios, stereos, and hundreds of red-colored crates. There was also a structure with a base measuring five feet by five feet fashioned out of, among other things, wood, sticks, fabrics, and crates. Thinking that the suspect was hiding inside the structure, the plaintiff "kind of jumped" on a flat-lying piece of plywood that formed the foundation of the structure. His right foot went through that piece of plywood, and he sustained injuries to his right knee and right shoulder. The plaintiff was later separated from his employment, having been placed on disability leave.

The plaintiff commenced this action alleging, inter alia, a cause of action pursuant to General Municipal Law § 205-e, which he predicated on a violation of New York City Health Code (24 RCNY) § 153.19. The City moved for summary judgment dismissing that cause of action on the ground, inter alia, that New York City Health Code § 153.19 could not form a predicate for such a cause of action. The Supreme Court granted that branch of the motion, holding that § 153.19 was a "sanitation provision, " and that a General Municipal Law § 205-e cause of action had to be predicated on some form of "safety consideration."

To support a cause of action under General Municipal Law § 205-e, a plaintiff law enforcement officer, inter alia, must identify the statute or ordinance with which the defendant failed to comply (see Williams v. City of New York, 2 N.Y.3d 352, 363-364; Byrne v. Nicosia, 104 A.D.3d 717, 719). Liability pursuant General Municipal Law § 205-e will exist where there is negligent noncompliance with "any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus" (General Municipal Law § 205-e), provided that the statute, ordinance, rule, order or requirement cited is found in a "well-developed bod[y] of law and regulation" that "impose[s] clear duties" (Desmond v. City of New York, 88 N.Y.2d 455, 464 [internal quotation marks and emphasis omitted]). Section 205-e must be applied " expansively' so as to favor recovery by police officers whenever possible" (Williams v. City of New York, 2 N.Y.3d at 364; see Gonzalez v. Iocovello, 93 N.Y.2d 539, 548).

New York City Health Code § 153.19 provides that "[t]he owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping... the premises free from obstructions and nuisances and for keeping... the... lot clean and free from garbage, refuse, rubbish, litter, other offensive matter or accumulation of water." Contrary to the Supreme Court's conclusion, this provision constitutes a well-developed body of law (see Donna Prince L. v. Waters, 48 A.D.3d 1137, 1138-1139; cf. Galapo v. City of New York, 95 N.Y.2d 568, 575; Desmond v. City of New York, 88 N.Y.2d at 464; Vosilla v. City of New York, 77 A.D.3d 649; Shelton v. City of New York, 256 A.D.2d 611). Further, it imposes clear duties (see Cosgriff v. City of New York, 93 N.Y.2d 539, 552). Indeed, the failure to comply with section 153.19 can result in criminal sanctions, including incarceration for up to one year (see NY City Charter § 558[e]; People v. Eisen, 77 Misc.2d 1044). Where criminal liability may be imposed, we would be "hard put to find a more well-developed body of law and regulation that imposes clear duties" (Williams v. City of New York, 2 N.Y.3d at 365).

Although, as the Supreme Court concluded, prohibitions against littering may be primarily directed toward aesthetic and health considerations, they also serve the purpose of keeping sidewalks and lots free of refuse that may present a tripping hazard. In any event, General Municipal Law § 205-e includes no exceptions; indeed, its language is broad, referring to any of the statutes, ordinances, rules, orders and requirements of virtually any governmental division, which are limited only to the extent that those provisions are well-developed and impose clear duties. The Legislature has frowned upon judicially crafted exceptions and defenses to General Municipal Law § 205-e, expressing its clear intent through subsequent amendments designed "to eradicate apparent confusion in the courts regarding the scope of [the statute] to ensure [that it is] applied in accordance with the original legislative intent to provide an umbrella of protection for police officers... who, in the course of their many and varied duties, are injured... by any tortfeasor who violates any relevant statute, ordinance, code, rule, regulation or requirement" (Senate Mem in Support, L 1996, ch 703, at 2634). Thus, it was error for the Supreme Court, relying on Shepherd v. Werwaiss (947 F.Supp. 71 [ED NY]) for support, to conclude that New York City Health Code § 153.19 could not form the basis for a General Municipal Law § 205-e claim because it is a "sanitation provision." Consequently, the defendant failed to satisfy its prima facie burden establishing its entitlement to judgment as a matter of law dismissing the General Municipal Law § 205-e cause of action on the basis that § 153.19 could not sufficiently support it.

The defendant also failed to satisfy its prima facie burden on the issue of notice. Recovery under General Municipal Law § 205-e "does not require proof of such notice as would be necessary to a claim in common-law negligence" (Terranova v. New York City Tr. Auth., 49 A.D.3d 10, 17 [applying this rule to a claim by a firefighter pursuant to the similarly worded General Municipal Law § 205-a]; see Alexander v. City of New York, 82 A.D.3d 1022, 1024). Rather, the plaintiff must only establish that the circumstances surrounding the violation indicate that it was a result of neglect, omission, or willful or culpable negligence on the defendant's part (see Alexander v. City of New York, 82 A.D.3d at 1024; Terranova v. New York City Tr. Auth., 49 A.D.3d at 17-18). As the owner of the subject lot, the City failed to demonstrate that the plaintiff's injury was not the result of its alleged neglect of its property.

The City's remaining contention is unpreserved for appellate review.

Accordingly, the Supreme Court should have denied that branch of the City's motion which was for summary judgment dismissing the cause of action pursuant to General Municipal Law § 205-e insofar as predicated on a violation of New York City Health Code § 153.19.

MASTRO, J.P., DILLON, ANGIOLILLO and CHAMBERS, JJ., concur.


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