Upon the foregoing papers in this personal injury action, defendant 42 Lee Avenue Corp. moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiffs Kevin C. Dolan and Eileen Dolan.^[FN1] 23

On December 29, 2001, plaintiff, a fire marshal, was injured during the course of his employment while investigating a fire on the third floor of a four-story brick building at 42 Lee Avenue in Brooklyn (hereinafter, "the premises"). The building, which was owned, managed and maintained by defendant, contained a store on the first level and apartments on the second and third levels. The third-floor extended to the fourth floor.

According to his deposition testimony, plaintiff arrived at the third floor apartment, along with fellow fire marshal, John Deprizio, after the fire had been extinguished, and proceeded to assess the amount and location of fire damage in the kitchen. Plaintiff testified that, as he stepped on a refrigerator that was lying on its side, the plaster ceiling came down, striking him in the head and shoulders, knocking him onto the ground and causing injuries to his left shoulder, head and back.

Mr. DePrizio subsequently prepared the Bureau of Fire Investigation Report (the report) and an interview sheet. According to the report, the fire originated in the rear of the kitchen in the immediate vicinity of a fluorescent light fixture. He noted that "several extension cords [were] found plugged into one another running from outlet, over door way, over window, behind stove, under cabinet and wiring of what appeared to be [the] light fixture in question." The report indicated that the cause of the fire was "not fully [*2]ascertained" and "probably heat from electrical equipment." In addition, the interview sheet contained statements made by tenants Esther and Sara Weitzner, who stated that they witnessed a fire in the light fixture under the kitchen cabinets. Neither Esther nor Sara Weitzner reported hearing a smoke detector alarm.

On May 24, 2004, plaintiffs commenced this action against defendant, alleging statutory negligence pursuant to General Municipal Law § 205-a and common-law negligence. Plaintiffs claim that defendant was negligent in its maintenance and control of the premises by, inter alia, failing to equip the premises with working smoke detectors, violating the certificate of occupancy, failing to have adequate fire-stopping in the premises, failing to equip the doors with self-closing devices, and failing to inspect the tenancies for safety and fire hazards. Plaintiff allege that defendant violated various rules, regulations, ordinances and codes, including New York City Administrative Code §§ 27-127, 27-128, 27-371, 27-979, 27-2044 and 27-2045; and New York State Executive Law §§ 1193.2 and 1193.3.

In support of its summary judgment motion, defendant refers to the testimony of Isacher Ostreicher, its secretary. Mr. Ostreicher testified that, prior to defendant's purchase of the premises, defendant hired an engineer to conduct an inspection. According to Mr. Ostreicher, the engineer reported that there was a smoke detector on every floor of the premises and two smoke detectors in the building stairwells. Mr. Ostreicher also testified that the door to the third floor was self-closing and he never received any complaints about, or made repairs to, the smoke detector, the ceiling or the electrical outlets in the kitchen. Mr. Ostreicher further testified that he did not recall seeing any extension cords or power strips in the kitchen during the inspection.

In moving for summary judgment, defendant argues that plaintiff's injuries were not the proximate result of any statutory or code violation attributable to defendant. Defendant asserts that it did not receive any complaints concerning the smoke detector, the ceiling or electrical outlets in the kitchen, and had not made any repairs to them prior to the fire. In addition, defendant maintains that it did not have notice of the tenants' use of extension cords near the light fixture. Lastly, defendant asserts that, at the time of the accident, the ceiling's structural integrity was significantly compromised due to the fire and to the numerous holes that the fire marshals were required to make in the plaster ceiling.

In opposition to the motion, plaintiffs contend that defendant did not have operable smoke detectors, which omission caused a delay in the response of the Fire Department and the department's control of the fire. Plaintiffs also argue that defendant did not have self-closing doors on the third floor, which caused the fire to intensify and spread more quickly from the third to the fourth floor. As a result of such violations, plaintiffs allege that the rapidly spreading fire required excessive amounts of water, and firefighters had to poke numerous holes in the ceilings and walls to locate pockets of fire, which resulted in the compromise of the structural stability of the kitchen ceiling. Plaintiffs submit the affidavits of Michael F. Cronin, an expert in the field of firefighting and safety, and of Eugene West, an expert in the field of fire safety, fire investigation and building code compliance, who both [*3]opine that defendant's violations compromised the structural integrity of the ceiling, thereby causing plaintiff's injuries. Mr. Cronin avers that a smoke detector and self-closing door on the third floor would have significantly limited the size and damage of the fire and fire wardens would not have been required to poke holes into the ceiling to find possible pockets of fire. Mr. Cronin also notes that the tenants' use of numerous electric cords in place of permanent wiring violated Executive Law 9 NYCRR § 1163. Mr. West states that the third floor public hallway did not have a self-closing door as required under statute and, as a result, the hallway acted as a chimney or internal flue for the fire and caused its immediate extension to the fourth floor. Lastly, Mr. West states that the premises was configured as a three-family multiple dwelling, even though the third and fourth floors were occupied by members of a single family as a "two-family duplex." Plaintiffs also assert that defendant was both aware of, and negligently permitted, the tenants' use of several extension cords plugged into one another in the same outlet near the light fixture. They allege that defendant knew that Esther and Sara Weitzner were Sabbath observers and would leave the kitchen light fixture and stove on, unattended.

In response to the affidavits of Mr. Cronin and Mr. West, defendant submits the affidavit of Edward J. Cuyar, an expert in the field of fire cause and origin, who physically inspected the premises approximately one week after the fire. Mr. Cuyar avers that the fire did not extend into the public hallway via an open doorway on the third floor of the apartment. Mr. Cuyar's inspection disclosed that the public third - floor staircase, the public hallway and front door of the apartment exhibited only moderate smoke staining. He noted that charring in the third floor interior hall which led to the fourth floor indicated that the fire extended horizontally from the kitchen into the interior hallway and then vertically to the fourth floor via an interior staircase. Accordingly, defendant contends that the duplex apartment contained interior stairs leading from the third floor to the fourth floor and that the apartment was not, therefore, required to have a self-closing door. Lastly, Mr. Cuyar states that the absence of a smoke detector after a fire does not necessarily mean that a detector was not present before the fire since it could have been knocked down, melted or otherwise destroyed during the fire.

Summary judgment should only be granted where there are no triable issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v Di Benedetto, 189 AD2d 757, 759 [1993]; Zarr v Piccio, 180 AD2d 734, 735 [1992]). Once the movant has established its prima facie case, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Romano v St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470 [1991]; Tessier v New York City Health & Hospitals Corp., 177 AD2d 626 [1991]). The evidence presented on summary judgment must be scrutinized in the light most favorable to [*4]the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Since summary judgment deprives a party of his or her day in court (Henderson v City of New York, 178 AD2d 129 [1991]), it is a drastic remedy that will only be awarded when there is no triable issue of fact and the court can render a decision as a matter of law (Barclay v Denckla, 182 AD2d 658 [1992]).

Additionally, "[i]t is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of defendant is established as a matter of law" (Chahales v Garber, 195 AD2d 585, 586 [1993]). Summary judgment is appropriate, however, even in negligence cases, where the movant satisfies his or her initial burden of proof and the nonmovant's opposition is "entirely conjectural and there is no genuine issue [of fact] to be resolved" (Cassidy v Valenti, 211 AD2d 876, 877 [1995]).

General Municipal Law § 205-a (1) provides a firefighter with a right of action where the "negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state . . . or city governments" "directly or indirectly" causes the firefighter's injury or death during the discharge of his or her duties. General Municipal Law § 205-a "creates a cause of action for firefighters who suffer line-of-duty injuries directly or indirectly caused by a defendant's violation of relevant statutes and regulations" (Giuffrida v Citibank Corp., 100 NY2d 72, 75 [2003]). To assert a valid General Municipal Law § 205-a claim, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the firefighter was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm to the firefighter'" (id. at 79, quoting Zanghi v Niagara Frontier Transp. Comn., 85 NY2d 423, 441 [1995]). To make out a claim under § 205-a the plaintiff is also required to establish a "reasonable connection between the statutory or regulatory violation and the claimed injury" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003][internal citations omitted]).

Here, plaintiff identified numerous alleged statutory violations by defendants, including Administrative Code §§ 27-127 and 27-128. Administrative Code § 27-127 provides:

"Maintenance requirements. All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provision of this code or other applicable laws or regulations that are required in a building by the provisions of this code or other laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order."

Administrative Code § 27-128 provides:

"Owner responsibility. The owner shall be responsible at all times for the safe maintenance of the building and its facilities." [*5]

Sections 27-127 and 27-128 may form the predicate for a claim under General Municipal Law § 205-a (see Giuffrida, 100 NY2d at 80 n 4).

The court finds several questions of fact that preclude summary judgment, including, but not limited to, whether an operational smoke detector was installed, and, if it wasn't, whether the absence of the device caused the uncontrolled spread of the fire and caused plaintiff's injuries. In light of the deposition testimony and affidavit evidence proffered by the parties, it is unclear from the record whether a smoke detector was installed or working and summary judgment is therefore inappropriate (see Baker v Riverhouse Realty Co., Inc., 300 AD2d 214 [2005; Fasolino v Sear Co., 179 AD2d 738 [1992]). Moreover, there is also a question of fact regarding whether there was a requisite self-closing door on the third floor to a public hallway and, if there wasn't, whether the lack of the device contributed to the extent and intensity of the fire and caused plaintiff's injuries. While Mr. DePrizio's affidavit indicates that the fire spread to the fourth floor through the open door, Mr. Cuyar's affidavit indicates that the third and fourth floors operated together as a duplex apartment and that the fire traveled along the duplex's interior staircase. Accordingly, there is a question of fact as to whether the fire spread up interior, as opposed to public, stairs, as well as whether a self-closing door was required for the area. Under the circumstances, the court finds an issue of fact regarding whether there is a connection between the statutory violations alleged and the injuries sustained by plaintiff.

The court also denies defendant's summary judgment motion with respect to the common law negligence claim because questions of fact exist regarding whether the defendant's statutory violations proximately caused plaintiff's injuries. For example, plaintiff cites Mr. Ostreicher's admission that defendant knew of the tenants' "practice" of leaving the stove and light fixture on and unattended, thus creating an issue of fact as to whether defendant was aware of the dangerous condition. The court has considered defendant's remaining arguments and finds them to be without merit.

For the foregoing reasons, the motion by defendants is, in all respects, denied.

This constitutes the order and decision of the court.

E N T E R,

J. S. C.