Upon the foregoing papers, the motions (Nos. 002 and 678) for summary judgment of defendants the City of New York (hereafter "the City") and Health Metrics Inc.(hereafter "Health Metrics"), are granted, in part, and denied, in part, as herein provided.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff, an on-duty Captain in the New York City Police Department, on March 9, 2004, when she claims to have been ordered to appear at the Cromwell Center in Staten Island, New York ( a facility owned and operated by the City) for the purpose of participating in a "physical standards test" (City's Exhibit "F", p 10). To the extent relevant, it is undisputed that the City had hired co-defendant Health Metrics, a private physical performance consultant, to conduct a fitness study for the Police Department. In her complaint, plaintiff alleges that she got her foot stuck on duct tape which was affixed to the gym floor while performing the agility test; got "hung up" on the tape as she attempted to pivot; and injured her knee (id., at 29-30). According to plaintiff, she did not observe any problem with the duct tape prior to her fall (id. at 84).

That branch of the motion by defendant Health Metrics which seeks the dismissal of plaintiff's causes of action against it under General Municipal Law §205-e is granted as unopposed. As a matter of law, the statutes upon which plaintiff purports to rely do not apply to this defendant.

In support of that further branch of its motion which is to dismiss plaintiff's action for common-law negligence, Health Metrics asserts that plaintiff's trip and fall was not caused by any dangerous or defective condition, but rather the presence of duct tape, which was an open and obvious condition that was readily observable by the use of one's senses (see Meagher-Cox v. Winarski, 32 AD3d 379). In further support of their position, defendants have annexed the affidavit of Bernard P. Lorenz, P.E., a licensed engineer, who states that he performed "coefficient of friction" testing at various locations in the subject gym, both with and without duct tape. As a result, Lorenz was able to conclude with a reasonable degree of engineering certainty that "the presence of duct tape on the floor at the time of plaintiff's injury did not constitute a defective, hazardous, or unsafe condition."

In opposition to the motion by Health Metrics, plaintiff has submitted the expert affidavit of Thomas W. Bowler, a certified playground consultant. While defendants question the relevance of Mr. Bowler's expertise, it is well settled that the determination of a witness' qualification to testify as an expert rests in the sound discretion of the court (see Meiselman v Crown Hgts. Hosp., 285 NY 389; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572; [*2]Karasik v Bird, 98 AD2d 359; see also Pignataro v Galarzia, 303 AD2d 667; Dimond v Heinz Pet Prods. Co., 298 AD2d 426; Goldman v County of Nassau, 170 AD2d 648). "No precise rule has been formulated and applied as to the exact manner in which such skill and experience must be acquired" (Meiselman v Crown Hgts. Hosp., 285 NY at 398). Thus, a witness may be qualified as an expert based upon "[l]ong observation, actual experience and/or study" (McLamb v Metropolitan Suburban Bus Auth., 139

AD2d at 573). For the purposes of this motion, this Court finds plaintiff's expert to be qualified to render an opinion as to the use of duct tape.

After reviewing all of the records and physically examining the gym, Mr. Bowler concluded with a reasonable degree of professional certainty that the application of duct tape to the gym floor created a dangerous condition which proximately caused plaintiff's injury. In this regard, Mr. Bowler noted that duct tape is not universally accepted in the industry as a floor-marking tape, and that vinyl tape and magic marker are viable alternatives to the use of duct tape for the demarcation of lines on a gym floor. According to the affidavit, in his forty years as a physical education professional, he has never seen duct tape used for floor-marking in physical fitness testing. Moreover, plaintiff at bar testified unequivocally "that the accident occurred when I planted my foot to pivot. It slipped on the tape and got hung up on the tape. So it was almost like it was stuck" (Plaintiff's Exhibit "2" pp. 25,26). Thus, this is not a case where plaintiff is unsure of what caused her to fall (cf. Christopher v. New York City Tr. Auth., 300 AD2d 336).

On this evidence, since the Court's function on a motion for summary judgment is issue-

finding rather than issue-determination and matters of credibility are reserved for the jury, so much of the summary judgment motion of defendant Health Metrics as is to dismiss plaintiff's cause of action sounding in common-law negligence is denied.

Turning to the City's motion to dismiss plaintiff's cause of action for common-law negligence, it is argued that such a claim is precluded by the so-called "firefighters rule", which bars an action in common-law negligence where a firefighter or police officer is injured while performing "some act taken in furtherance of a specific police or firefighting function which exposed the officer to a heightened risk of sustaining the particular injury" (Carter v. City of New York, 272 AD2d 498, 498 quoting Zanghi v. Niagara Frontier Transp Comm, 85 NY2d 423,439 [internal quotation marks omitted]). According to the City, since plaintiff's injuries occurred during her participation in NYPD agility testing, her purported common-law negligence cause of action must be dismissed.

In opposition plaintiff argues that the firefighter's rule does not apply where the injuries sustained are not a direct result of the peculiar risks inherent in police work (see Santangelo v. State of New York, 71 NY2d 393, 397). Rather, the common-law cause of action remains viable where the officer's injuries are unrelated to such risks, e.g., where being on duty merely furnished the occasion for the injury, but did not heighten the risk of sustaining it (see Delio v. City of New York, 8 AD3d 325). According to plaintiff, her participation in the timed agility test was not "police work" within the meaning of the firefighter's rule, and therefore her common-law cause of action is not precluded. [*3]

Under the circumstances of this case, the Court agrees with plaintiff that triable issues of fact exist as to the connection, if any, between plaintiff's injuries and a hazard associated with the performance of her official duties (see Cooper v. City of New York, 81 NY2d 584, 589-590).

General Municipal Law §205-e was enacted to provide a statutory remedy to police officers who are injured in the line-of-duty "resulting from [a third party's] 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 [internal quotation marks omitted]). To make out a valid claim under General Municipal Law § 205-e, a plaintiff must (1) "identify the statute or ordinance with which the defendant failed to comply, (2) describe the manner in which he or she 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" (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d at 441). On a motion for summary judgment to dismiss such a claim, defendant bears the initial burden of showing either that it did not negligently violate any relevant regulatory provision or, if it did, that the violation did not directly or indirectly cause plaintiff's injuries. Only if defendant sustains this burden must plaintiff raise a triable issue of fact as to whether the alleged violation directly or indirectly caused the injury (see Giuffrida v. Citibank Corp., 100 NY2d 72, 82).

While all of the parties seem to agree that the alleged violations of New York City Administrative Code §§27-127 and 27-128 are sufficient predicates for a cause of action under General Municipal Law §205-e (see Farrington v. City of New York, 240 AD2d 697), in the opinion of this Court, neither provision is applicable to the facts of this case. To the extent relevant, Administrative Code §27-127 requires that buildings and their parts be maintained safely, while section 27-128 establishes the owner's responsibility for such maintenance (see Williams v. City of New York, 304 AD2d 562, 564 affd. 2 NY3d 352). As construed, these sections have consistently been applied to structural or design defects (see e.g.Beck v. Woodward Affiliates, 226 AD2d 328, 330), and since the application of duct tape to a gym floor is not of this ilk, it is clear that no violation of either section can be shown to underpin plaintiff's General Municipal Law §205-e cause of action (cf. Chery v. Exotic Realty, 34 AD3d 412). Nevertheless, plaintiff has pleaded a legally sufficient independent basis for a claim under General Municipal Law §205-e.

Section 27-a (3)(a) of the Labor Law provides, in relevant part, that "[e]very employer shall: (1) 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". Here, there is a difference in expert opinion as to whether or not the use of the duct tape to control plaintiff's movements on the gym floor during agility testing constituted a

"recognized hazard" within the meaning of that statute. Thus, so much of plaintiff's statutory cause of action as is predicated upon the purported violation of Labor Law §27-a cannot be determined without a trial (see Balsamo v. City of New York, 287 AD2d 22; cf.Williams v. City of New York, 304 AD2d 564-565; see also Singleton v. City of New York, 13 Misc 3d 1173 [SCT Kings Co 2006]).

Accordingly, it is hereby [*4]

ORDERED that the motion for summary judgment of defendant Health Metrics Inc. is granted as to plaintiff's General Municipal Law §205-e cause(s) of action; and it is further

ORDERED that said cause(s) of action are severed and dismissed; and it is further

ORDERED that the motion for summary judgment of defendant the City of New York is granted as to that branch of plaintiff's General Municipal Law §205-e cause of action as is predicated upon alleged violations of the New York City Administrative Code; and it is further

ORDERED that said cause of action is severed and dismissed; and it is further

ORDERED that the balance of the motions are denied; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

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

DATED: 8/27/07/s/

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

8/27/07

LA PIETRA & KRIEGER, ESQS.

ATT: ROSEMARY CARROLL, ESQ.

30 GLENN STREET

WHITE PLAINS, NY 10603

MICHAEL A. CARDOZO

CORPORATION COUNSEL OF THE

CITY OF NEW YORK

ATT: JENNIFER M. MARCUS, ESQ.

60 BAY STREET

STATEN ISLAND, NY 10301

RIVKIN RADLER, LLP

ATT: JOHN M. COMISKEY, ESQ.

926 EAB PLAZA

UNIONDALE, NY 11556-0111