Plaintiff Albert Siciliano (hereinafter "plaintiff"), a New York City Police Officer, was physically injured when he tripped and fell on a pothole while walking to his official vehicle after being ordered onto patrol by his supervisor on the evening of June 16, 2002. According to plaintiff's deposition testimony, "[t]his day we had a lot of heavy workload and the bosses were adamant about us going out as quickly as possible. [In fact,] they used the term forthwith" (City's Exhibit F, p 10). Plaintiff further testified that it was "in the interest of saving a little bit of time" that he decided "to go out with [his] partner...to retrieve the car" instead of waiting in front of the building to be picked up (id.). It appears undisputed that the patrol car was parked in a lot leased by defendant the City of New York (hereinafter "the City") from co-defendant IPC Commercial Properties, Inc. (hereinafter "IPC"). To the extent relevant, the complaint alleges causes of action sounding in both common-law negligence and the statutory right of action set forth in §205-e of [*2]the General Municipal Law. In sum and substance, plaintiff alleges that his injury was the product of defendants' failure to maintain the parking lot in a reasonably safe condition, as well as violation of New York City Administrative Code §§27-127, 27-128 and Labor Law §27-a..

Section 205-e of the General Municipal Law creates a statutory cause of action in favor of every police officer injured in the line-of-duty by the failure of others "to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or any and all their departments, divisions and bureaus" (General Municipal Law §205-e[1]). Although broadly phrased and expansively interpreted (see Gonzalez v. Iocovello, 93 NY2d 539, 548), it is well understood that §205-e "cannot reasonably be applied literally....Rather, as a prerequisite to recovery, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties" (Galapo v. City of New York, 95 NY2d 568, 574 [emphasis added]). Thus, actual or constructive notice and a reasonable time to cure the alleged violation of the underlying "statutes, ordinances, rules [and] orders" is generally a key element in a cause of action under General Municipal Law §205-e (see DeGiacomo v. Westchester Co. Healthcare Corp., 295 AD2d 395; Rabinowitz v. City of New York, 286 AD2d 724; accord Garcia v. Northcrest Apts. Corp., 24 AD3d 208).

In moving for leave to renew the denial of his motion for summary judgment on the issue of liability under General Municipal Law §205-e, plaintiff argues, inter alia, that photographs of the pothole subsequently authenticated during pretrial discovery are sufficient to demonstrate prima facie defendants' alleged violation of the cited sections of the Administrative Code, as well as Labor Law §27-a. The Court disagrees.

Assuming for the sake of argument that the photographs in question constitute competent evidence on the issue of constructive notice (see e.g. DeGiacomo v. Westchester Co. Healthcare Corp., 295 AD2d at 395), they are not sufficient to compel the conclusion that the limited vegetative growth and miscellaneous debris depicted therein could only have accumulated over such an extended period of time that knowledge of the hazard should have been acquired by defendants in the exercise of reasonable care (cf. Rosabella v. Metropolitan Transp. Auth., 23 AD3d 365 [defendants' demonstrable failure "over an extended period of time" to maintain a staircase in compliance with state building code said to raise a triable issue of fact]; DeGiacomo v. Westchester Co. Healthcare Corp., 295 AD2d at 395 [photographs of a dirt hole on defendant's premises said to present a triable issue of fact on constructive notice]). At a minimum, any such conclusion of law seemingly would have to rest (in all but the most extreme of cases) on expert evidence regarding, e.g., the growth patterns of the species of plant(s) depicted in said photographs or other visible indicia of age (cf. Garcia v. Northcrest Apts. Corp., 24 AD3d at 209) [mere appearance of rust on a fence pole held insufficient to establish constructive notice of its alleged defective condition; expert evidence of a per se "hazard" rejected as speculative]; Rabinowitz v. City of New York, 286 AD2d at 724 [trial evidence of an oily patch and/or sand in defendant's parking lot held insufficient to prove constructive notice of a hazardous condition]). As a result, while plaintiffs' motion for leave to renew their motion for partial summary judgment on the issue of liability is granted, upon renewal, the motion is denied.

Turning to the cross motions for summary judgment dismissing the complaint as against the City and IPC, it is well established that the so-called "firefighter's" rule bars police officers and firefighters from asserting a cause of action to recover damages in common-law negligence "where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury" (Zanghi v. Niagra Frontier Transp. [*3]Commn., 85 NY2d 423, 439; accord Williams v. City of New York, 2 NY3d 352). In this regard, it has been held in consonance with the "expansive interpretation" of General Municipal Law §205-e (see Gonzalez

v. Iocovello, 93 NY2d at 548) that prosaic pursuits such as writing a parking ticket or escorting a witness can qualify as acts taken in "furtherance of a specific police...function [which] expose [an officer] to a heightened risk of falling" (Zanghi v. Niagra Frontier Transp. Commn, 85 NY2d at 439; see Carter v. City of New York, 272 AD2d 498 [trip-and-fall on a sidewalk defect while issuing a parking ticket]; Simons v. City of New York, 252 AD2d 451 [trip-and-fall due to a roadway defect while escorting an eyewitness to the subway]; cf. Olson v. City of New York 233 AD2d 488 [firefighter's rule held no bar to an action in common-law negligence by firefighter who stepped into a pothole upon returning to the fire station after responding to an alarm; act producing the injury said to fall outside the realm of firefighting duties that exposed plaintiff to an increased risk of injury]). Here, it is the opinion of this Court that defendants have failed to carry their burden of establishing as a matter of law that plaintiff's injury was sustained in the furtherance of "a specific police...function [that] exposed him to a heightened risk of sustained [this] particular injury" (Zanghi v. Frontier Transp. Commn., 85 NY2d at 439). Accordingly, the cross motions to dismiss plaintiff's common-law negligence cause(s) of action must be denied.

It is well settled that the firefighter's rule bars only those claims of negligence that arise out of the specific dangers associated with police work (see Delio v City o New York, 8 AD3d 325). However, where injuries sustained in the line-of-duty "are wholly unrelated to the assured risks of police duty", the common-law recovery remains viable (Cooper v City of New York, 81 NY2d 584, 591). A "common-law negligence cause of action is not barred by the firefighter's rule [where plaintiff's] duties merely furnished the occasion for [the] accident but did not heighten the risk of injury" (Braxton v City of New York, 278 AD2d 265, 265). In this case, plaintiff was injured when he tripped and fell in a pothole while walking to his police car. Thus viewed, his injury is analogous to that sustained in Tighe v City of Yonkers (284 AD2d 325). In Tighe an officer was injured when he tripped over a raised steel plate in the street while walking to his patrol car after moving a wooden barricade known as a "traffic horse". Under these circumstances, the Court agreed with plaintiff that his injury was unrelated to the assumed risks of police duty, and that the firefighter's rule did not bar a common-law recovery. Likewise, the common-law cause of action in this case is not subject to summary dismissal.

The contrary is true of so much of the complaint as seeks to predicate a recovery against the City on purported violations of Administrative Code §§27-127 and 27-128. As was recently re-affirmed in the case of Zvinys v. Richmond Invest. Co. (25 AD3d 358), these Code provisions are inapplicable to lessees such as the City (Beck v. Woodward Affiliates, 226 AD2d 328)^[FN1].

Plaintiffs' alternate predicate for a §205-e claim against the City is its purported violation of §27-a of the Labor Law. To the extent applicable, that section provides that "[e]very employer shall...furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees....In applying this paragraph, fundamental distinctions between private and public employment shall be recognized" (Labor Law §27-a [3][a][1]). Otherwise known as [*4]the Public Employee Safety and Health Act (PESHA), §27-a of the Labor Law was enacted to provide public

employees with the same or greater workplace protections provided to private sector employees under OSHA (see Hartnett v. New York City Tr. Auth., 86 NY2d 438, 442). Nevertheless, PESHA has been held to be inapplicable to the "special risks faced [e.g.] by police officers because of the nature of police work" (Williams v. City of New York, 2 NY3d at 368). Thus, it is not every line-of-duty injury that will give rise to a violation of Labor Law §27-a (see e.g. Williams v. City of New York, 2 NY3d at 367-368; Forster v. City of New York, 309 AD2d 578).

In moving to dismiss this aspect of plaintiffs' §205-e cause of action, both the City and IPC argue that the City's alleged violation of the general safety standard codified in Labor Law §27-a will not support a cause of action under General Municipal Law §205-e. In this respect, the moving defendants place principal reliance on the November 28, 2006 decision of the Appellate Division, Second Department in Link v. City of New York (34 AD3d 757).

Defendants are correct in noting that the Second Department stated in Link that "[n]either the general public safety standard codified in Labor Law §27-a nor the requirements of the New York City Police Department Patrol Guide are adequate [predicates] for [a cause of action under General Municipal Law §205-e]" (34 AD3d at 758). However, none of the underlying facts were recited by the Court in Link, and the panel's citation of the Court of Appeal's decision in the Williams case suggests that there as in Williams the injury was the product of one of the special risks inherent in police work to which Labor Law § 27-a is inapplicable (see 2 NY3d at 367-368). Moreover, this same Court had previously held that the City's "fail[ure] to furnish [a police officer with ] employment that was free from recognized hazards...[in] violat[ion of] Labor Law §27-a(3)(a)(1)" was sufficient to sustain a plaintiff's verdict under General Municipal Law §205-e (Campbell v City of New York, 31 AD3d 595 [decided July 18, 2006]; see also Balsamo v. City of New York, 287 AD2d 22, 28 [2d Dept 2001]). Under these circumstances, it is unlikely that the cited language in Link should be taken at face value. In any event, it must be noted that the Court of Appeals in Williams never held that a violation of Labor Law §27-a could not support a §205-e cause of action. Rather, the Court held that plaintiffs, the widows of police officers who had been shot and killed by a prisoner who managed to obtain possession of another officer's service revolver, could not rely upon a purported violation of this section of the Labor Law to support their General Municipal Law § 205-e causes of action because that provision was never intended to cover "the special risks faced by police officers because of the nature of police work" (2 NY3d at 368)^[FN2].

Here, there is little doubt that plaintiff's trip-and-fall did not arise out of the proscribed "special risks" faced by police officers because of the nature of their work and to which §27-a of the Labor Law does not apply (cf. Forster v. City of New York, 309 AD2d at 579 [Labor Law §27-a does not apply to a police officer run down in the open highway]; Sciangula v. City of New York, 250 AD2d 833 [Labor Law §27-a has no application to an officer injured in an attack by a prisoner]). To the contrary, the occupational injury at bar can best be seen as one bearing no real [*5]nexus to the kinds of risks unique to policing (cf. Campbell v City of New York, 31 AD3d at 595 [dangerous police horse knowingly sent out on patrol with mounted officer]; Balsamo v. City of New York, 287

AD2d at 27-28 [officer injured in impact with an unpadded console in a patrol car]; cf. Williams v. City of New York, 2 NY3d at 368). Nor should the protection that the Labor Law affords to police officers be limited, as the City has suggested, to injuries caused by unsafe equipment. "Labor Law §27-a is applicable to the uniformed services and the safety or protective equipment provided to them" (Balsamo v. City of New York, 287 AD2d at 28 [emphasis added]).

Finally, it cannot be seriously doubted that the duty to provide workers with a place of employment that is reasonably free from tripping hazards devolves from "a well-developed body of law containing particularized mandates or imposing a clear legal duty" (Link v. City of New York, 34 AD3d at 758, quoting Abbadessa v. City of New York, 269 AD2d 341, 341-342 [internal quotation marks omitted]).

In view of all of the above, plaintiff's claim of a tripping hazard in the parking lot furnished by his employer can be seen to present multiple issues of fact under Labor Law §27-a (cf. Campbell v. City of New York, 31 AD3d at 595; Balsamo v. City of New York, 287 AD2d at 28; see also Singleton v. City of New York, 13 Misc 3d 1173 [SCt Kings Co. 2006]). Therefore, summary judgment dismissing so much of plaintiffs' General Municipal Law §205-e cause of action as is predicated upon the alleged violation of the foregoing statute must be denied.

Accordingly, it is

ORDERED that plaintiffs' motion for leave to renew is granted; and it is further

ORDERED that, upon renewal, plaintiffs' motion for partial summary judgment on the issue of liability under §205-e of the General Municipal Law is denied; and it is further

ORDERED that so much of the cross motion of defendant the City of New York as is for the dismissal of so much of plaintiff's statutory cause of action against it as is based on the City's purported violation of New York City Administrative Code §§27-127 and 27-128 is granted; and it is further

ORDERED that no such violation may be asserted against the City at trial; and it is further

ORDERED that the balance of the cross motions are denied.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of this Decision/Order.

DATED: 8/24/07/s/

HON. THOMAS P. ALIOTTA, J.S.C.