These three personal injury actions, Walters v. The City of New York (Index No. 118030/06), Schunk v. The City of New York (Index No. 117869/06) and Khamis v. The City of New York Fire Department (Index No. 1103248/07), all arise from a collision between a taxicab and a double parked New York City Fire Department rescue truck. The taxicab slammed into the fire truck from the rear, pinning firefighters John Walters and Michael Schunk between the front of the cab and the back of the truck and crushing their legs. The driver of the cab, Mohammed A. Khamis, claims that he was also injured as a result of the accident.

Defendant the City of New York ("the City") now moves for summary judgment in each of the three cases. The motions are consolidated here for the purposes of decision.

I. Background

On July 19, 2006, plaintiffs Walters and Schunk and four other New York City Fire Department ("FDNY") firefighters were working the 6 P.M. to 9 A.M. overnight shift on "Rescue 1," a FDNY Rescue Truck. The four other crew members onboard Rescue 1 that night were firefighters Glen Bullock and Kevin Kroth, Supervising Dispatcher Richard Pressler, and Lieutenant James Carney.

Rescue 1 was returning to the fire house on Manhattan's Upper West Side after responding to an emergency call when, at approximately 11:40 p.m., the crew stopped on Columbus Avenue to buy dinner. Because there was no allotted meal break on the overnight shift, the firefighters would often stop at that location to get takeout food from the many nearby restaurants.

Not seeing a space large enough for Rescue 1 to park without blocking a crosswalk, firefighter Kroth, the vehicle's driver, double parked in the eastern-most travel lane of Columbus [*2]Avenue near the intersection with West 71st Street. Prior to parking the truck, Kroth visually scanned the immediate area for a parking space, but he did not circle the block looking for spaces. Lieutenant Carney testified at his deposition that although he was aware of a safety bulletin issued by FDNY prohibiting double parking of an FDNY vehicle in non-emergency situations, it was his practice to instruct the driver to never park immediately next to the curb. He stated that he did this out of a concern that Rescue 1 could be blocked in by another vehicle and be unable to respond in the event of an emergency call.

Rescue 1 is approximately thirty-three feet long, painted red and white, and has numerous lights and reflectors attached. It has a front-driver's cab section and a rear section where the majority of the firefighters sit. The rear section can only be accessed through a door in the center of the back of the vehicle.

After parking, the men exited Rescue 1 and went to various restaurants in the near vicinity to purchase their dinners. While purchasing their meals, the men of Rescue 1 remained in "10-8" status, indicating that they were in service but out of quarters on the street and wearing their firefighting gear. Because they were still on duty and could receive an emergency call at any time, one member of the team was required to remain with the truck to monitor for incoming calls and all the men of Rescue 1 were required to stay within close proximity of the truck and in radio contact with each other.

After buying their dinners, Walters and Schunk returned to Rescue 1 and waited at the rear of the vehicle for the other men to return. While the two firefighters were standing behind Rescue 1, and while the truck had been double parked for approximately ten minutes, a taxi driven by plaintiff Khamis struck Rescue 1 from the rear. Khamis claims that while traveling south in the center lane of Columbus Avenue, he was cut off by an unidentified vehicle and immediately after crossing 72nd Street was caused to swerve into the eastern-most travel lane. Within two seconds of swerving, Khamis' taxi collided with Rescue 1, pinning firefighters Walters and Schunk between the two vehicles. At his deposition, Khamis stated that he did not see Rescue 1 prior to crashing into it, that he was driving between twenty and twenty-five miles per hour, that he had little or no time to respond to the presence of Rescue 1, and that he did not apply his breaks or horn prior to the crash.

Walters and Schunk suffered serious injuries as a result of the accident. Each had a leg that was severely crushed, with Walter's right leg having to be amputated above the knee. They remained on medical leave after the accident until they were retired by the FDNY Medical Board upon a finding that each was permanently injured in the line of duty. Khamis alleges that he sustained injuries, primarily bulging and herniated discs, as a result of crashing into the back of fire truck.

Firefighters Walters and Schunk claim a violation by the City of General Municipal Law ("GML") § 205-a, citing Labor Law § 27-a, Vehicle Traffic Law §§ 1200, 1201, 1202, and title 34 of the Rules of the City of New York (RCNY) §§ 4-08, 4-02 as statutory or regulatory predicates for the GML § 205-a cause of action. Along with derivative claims by their wives, both also assert causes of action for general negligence against the City, Khamis, and Marcelin Papilon, the owner of the taxi. Khamis alleges that the City was negligent in double parking Rescue 1 in a traffic lane without any warnings or lights. The City now moves for summary judgment dismissing all claims and cross-claims brought against it in the three actions.

[*3]II. Motion to Dismiss the Walters and Schunk Complaints

A. GML § 205-a: "in the discharge or performance at any time or place of any duty"

The City asserts that the provisions of GML § 205-a are inapplicable to this case and thus the cause of action brought pursuant to it must be dismissed. GML § 205-a(1), often referred to as the "firefighter rule," provides firefighters with a cause of action for injuries resulting from the failure of any person or persons to comply 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" while the firefighter was "in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department." The City contends that the injuries sustained by firefighters Walters and Schunk did not occur while they were acting in the performance of a duty and that this precludes plaintiffs from recovering under GML § 205-a. Plaintiffs argue that they were acting in the performance of an imposed duty at the time of the accident and that the issue poses a question of fact for the jury.

The job of a modern firefighter in New York inherently exposes these men and women to "an unprecedented risk of death and physical injury." 1996 NY Laws 703, §3. With the risks faced by these individuals in mind, the State Legislature amended GML § 205-a to afford firefighters a cause of action for injuries sustained "regardless of whether the injury or death is caused by the violation of a provision prohibiting activities or conditions which increase the dangers inherent in the work of any officer, member, agent or employee of any firedepartment." Id. The right of firefighters to recover under this statute "is to be given a liberal construction to accomplish its salutary purpose'" so as to favor recovery by firefighters whenever possible. Tobin v. City of New York, 256 AD2d 177, 178 (1st Dept 1998)(quoting O'Connell v. Kavanagh, 231 AD2d 29 [1st Dept 1997]); see also Williams v. City of New York, 2 NY3d 352, 364 (2004). That an injury to a firefighter does not occur during the extinguishing of a fire or in responding to an emergency call does not preclude the applicability of GML § 205-a. See 1996 NY Laws 703, §3 (stating that since "firefighters are required to confront dangerous conditions under many and varied circumstances, there is a need to ensure that a right of action exists regardless of where the violation causing injury or death occurs"); Lynch v. City of New York, 14 AD3d 347, 349 (1st Dept 2005)(a firefighter's fall in a out-of-service fire station, though not the site of a fire, does not preclude the applicability of GML § 205-a).

No case is directly on point as to whether a firefighter who stops to purchase a meal, who is "in-service but out of quarters" and wearing firefighting gear, and who is limited as to how far from the vehicle he may go, is within the scope of discharge or performance of a duty for purposes of GML § 205-a. Plaintiffs, however, point the court to Haase v. City of Buffalo (255 AD 357 [4th Dept 1938])for guidance on the issue. In Hasse, an employee of the Buffalo Department of Parks struck and fatally injured an individual while the employee was driving to a restaurant "to procure an emergency meal" because "the requirements of his employment that day had prevented him from having his usual evening meal." 255 AD at 360. The court concluded that "food was necessary for the continuance of [the employee's] work" and that "he did not step out of his employment' " when he went to purchase his meal. Id.

Although Hasse did not involve firefighters or a claim under GML § 205-a, the case nevertheless supports plaintiffs' contention that a reasonable finder of fact could conclude that [*4]firefighters Walters and Schunk did not "step out" of their employment when they went to purchase dinner and returned with their food to Rescue 1. In light of the fact that the firefighters were not provided meal breaks and that they were "in service" ready to respond to a call at all times throughout their 6 P.M. to 9 A.M. shift, it could be readily found that obtaining food to bring back to Rescue 1 was a necessary component of the performance of their physically demanding duties.

The City cites Foulkes v. City of New York (261 AD2d 283 [1st Dept 1999]), a case where a firefighter who claimed he sustained lung damage due to a prolonged exposure to diesel fumes at the firehouse was denied recovery under GML § 205-a. The City suggests that a basis for the holding was that there was no nexus between what the plaintiff in that case was doing at the time he was injured (i.e., simply being in the firehouse) and the performance of his duties as a firefighter. While it is undoubtedly true that the language of GML § 205-a(1) requires that there be such a nexus, the Foulkes decision did not find a lack of such nexus. Instead, it merelyconfirmed that as a prerequisite to recovery under the 1996 amendment to GML § 205-a, a firefighter must allege that the injuries were in fact sustained during the discharge or performance of his or her duties. This was something the plaintiff in Foulkes failed to do. On the other hand, here both Walters and Schunk satisfy the prerequisite by clearly alleging that their injuries arose out of the performance of their duties as FDNY firefighters.

Although plaintiffs do not contend that they were specifically instructed by a superior officer at the scene to wait at the back of Rescue 1 for the other firefighters to return with their food, it does not follow that Walters and Schunk were not acting within the discharge of their duties as at the time of the accident. Based on the broad language of the statute allowing firefighters to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed," it can reasonably be concluded that the instruction to remain near Rescue 1 was an imposed duty.

The City has failed to meet its burden of conclusively establishing that the plaintiffs were not acting within an imposed duty at the time of the accident and as a result outside the scope of GML § 205-a, the "firefighter rule." See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (requiring the proponent of a summary judgment motion to present sufficient evidence so as to eliminate any material issues of fact from the case). Thus, the issue remains one to be determined at trial by the finder of fact.

Having found that a material issue of fact exists as to whether Walters and Schunk were injured while performing their duties and denying the City summary judgment on the issue, the court nevertheless rejects plaintiffs' argument that the City is collaterally estopped from asserting that firefighters Walters and Schunk were not acting in the performance of their duties at the time of the accident. The collateral estoppel argument is based on a determination made by the FDNY Board of Trustees that plaintiffs' injuries were a natural and proximate result of their City service and that they were eligible for a full accident disability pension pursuant to Administrative Code § 13-353. The standards for granting disability under Administrative Code § 13-353, however, differ significantly from the standards for determining liability under GML § 205-a. See Foulkes, 261 AD2d at 283-84 (finding that the City was not collaterally estopped from arguing counter to the previous findings of pension proceeding because the standards applied in the proceeding are not the same as those required under GML § 205-a). Thus, [*5]collateral estoppel does not apply.

B. Labor Law § 27-a as a Predicate for Recovery Under GML § 205-a

The City's second basis for seeking summary judgment is its assertion that Labor Law § 27-a cannot serve as a proper statutory predicate in this instance to support plaintiffs Walter's and Schunk's GML § 205-a cause of action. The City argues that although courts have recognized claims for police officers and firefighters under Labor Law § 27-a arising from the failure of their employers to provide safe equipment, the statutory provision is inapplicable here because faulty equipment was in no way involved. The City also contends that § 27-a is inapplicable since the accident did not occur at the firefighters' workplace.

Labor Law § 27-a requires a public sector employer to provide its employees with "a place of employment which [is] 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." The statute was enacted to "provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA." Hartnett v. New York City Tr. Auth., 86 NY2d 438, 442-43 (1995), citing Governor's Approval Memo, 1980 NY Legis Ann, at 285.

It is well established that a violation of Labor Law § 27-a can serve as the predicate for a claim by both firefighters under GML § 205-a and police officers under General Municipal Law § 205- e ^[FN1]. See, e.g., Fisher v. City of New York, 48 AD3d 303 (1st Dept 2008); Balsamo v. City of New York, 287 AD2d 22 (2d Dept 2001); Sciangula v. City of New York, 250 AD2d 833 (2d Dept 1998). It is also well established that the fact that a firefighter's injury does not occur at the site of a fire "does not preclude the applicability of General Municipal Law § 205-a." Lynch, 14 AD3d at 349. Thus, the mere fact that firefighters Walters and Schunk were injured while by the side of their parked FDNY rescue vehicle, as opposed to being at the actual scene of a rescue, does not mean that they were not within the confines of their "place of employment," as the term is used in Labor Law § 27-a, at the time of the accident.

The real issue, then, is whether, as the City maintains, Labor Law § 27-a is limited in its application to claims by firefighters for the failure of their employers to provide safe work equipment. The City cites to three cases which it argues limits police officers, and by extension firefighters, to causes of action predicated on Labor Law § 27-a to occurrences where deficient and unsafe equipment was the cause of the injury. In each of those cases, a police officer was provided with, and subsequently injured by, either a known disobedient and dangerous horse (Balsamo, 287 AD2d 22), a police car with a protruding and unpadded computer console (Campbell v City of New York, 31 AD3d 594 [2d Dept 2006]), or a deficiently padded police [*6]station training floor (Singleton v. City of New York, 13 Misc 3d 1173 [Sup Ct Kings County 2006]). Each of these cases recognizes a cause of action, or at least the existence of an issue of fact concerning the cause of action, under Labor Law § 27-a for the employer's failure to furnish safe equipment and thereby a safe workplace free from recognized hazards. Contrary to what the City suggests, however, none of those cases in any way limit the applicability of Labor Law § 27-a strictly to those situations where unsafe or faulty equipment was provided.

Williams v. City of New York, 2 NY3d 352, 364 (2004), on the other hand, defines the bounds of application of Labor Law § 27-a as a predicate for recovery for claims made pursuant to GML § 205-e (and thus § 205-a). In Williams, two police officers were shot and killed when a prison inmate gained access to a service gun in a police locker while the inmate was detained in a locker room that doubled as a detention area. The Court of Appeals held that Labor Law § 27-a was not applicable as it "does not cover the special risks faced by police officers because of the nature of police work." Williams, 2 NY3d at 368. The Court noted that it is highly unlikely that in enacting Labor Law § 27-a, the legislature intended it to pertain to judgments that "must be made by police supervisors in minimizing the dangers that police officers inevitably face, while at the same time protecting the public." Id. These decisions are "uniquely sensitive, difficult, and important" and "fall within the purview of police supervisors and department policy." Id.; Singleton, 13 Misc 3d at 1177. Those claims which generally arise from the risks unique to police work or firefighting, therefore, are not a valid basis for a Labor Law § 27-a violation.

In the case at hand, the risk of being struck by a car while at the back of a double parked truck cannot be deemed to be unique to firefighters based on the nature of their occupation. Every car and truck that is double parked in a travel lane is subject to the danger of being hit from behind by another vehicle driving in that same lane. At the very least there exists an issue of fact as to whether double parking a fire truck in a non-emergency situation created a recognized hazard within the meaning of Labor Law § 27-a. This is particularly so in light of FDNY Safety Bulletin No. 3. This bulletin, which was used to train fire department members on how they were to park a fire truck in a non-emergency situation, states that fire apparatus should never be double parked in a non-emergency situation.Inasmuch asthe deposition testimony of Lieutenant Carney, the commanding officer on board Rescue 1, establishes that he knew of the safety bulletin and the risks inherent with double parking, a finder of fact could reasonably conclude that the double parking of the vehicle under the circumstances presented here constituted a recognized workplace hazard under Labor Law § 27-a.

It should be noted that plaintiffs Walters and Schunk have also asserted violations of Vehicle and Traffic Laws §§ 1200 (Stopping, Standing and Parking — General Rules), 1201 (Stopping, Standing and Parking — Outside of Business or Residence Districts) and 1202 (Stopping., Standing and Parking — Prohibited in Specified Places), as well as 34 RCNY §§, 4-02 (Compliance with and Effect of Traffic Rules) and 4-08 (Parking, Stopping, Standing), as statutory or regulatory predicates in support of their cause of action under GML § 205-a. The City has not moved for summary judgment as to these alleged violations. Thus, even if it could be found at this point as a matter of law, which it cannot, that Labor Law § 27-a does not provide the requisite statutory predicate, an issue would still remain as to the other violations raised.

C. Common Law Negligence and Proximate Cause

The City's third argument in support of its motion for summary judgment is that the City [*7]cannot be liable under a theory of common law negligence for the injuries caused to either Walters, Schunk or Khamis, because Khamis, by his alleged negligent driving of the taxi, was the sole proximate cause of the accident. All three plaintiffs contend that there is an issue of fact regarding proximate cause, arguing that the double parking of Rescue 1, done in violation of traffic laws, contributed to, if not wholly caused, the accident.

i. Plaintiff Khamis

Where a vehicle is lawfully stopped in the street, a rear-end collision into the stopped car is sufficient to create a prima facie case of liability with respect to the driver of the moving vehicle. Edney v. Metropolitan Surburban Bus Auth., 178 AD2d 398, 399 (2d Dept 1991). Such a collision imposes a duty on the operator of the moving vehicle, the defendant in most cases, to present an explanation as to the cause of the accident rebutting the inference of negligence. Id. The explanation given to rebut the presumption of negligence is generally an issue of credibility for a jury to determine. Pfaffenbach v. White Plains Express Corp., 17 NY2d 132, 136 (1966).

The City claims that Khamis was solely responsible for the accident and the injuries caused by his collision into the stationary FDNY truck. While recognizing that credibility determinations are generally within the province of the trier of fact, the City argues that this court must determine as a matter of law that the deposition testimony given by Khamis regarding the facts surrounding the accident is incredible, unbelievable, manifestly untrue and physically impossible. See Loughlin v. City of New York, 186 AD2d 176, 177 (2d Dept 1992). The City also claims that Khamis' testimony is contrary to other evidence that has come to light in discovery, particularly the photographs showing that the damage to the front end of the taxi is uniform across the front. According to the City, this proves that Khamis hit Rescue 1 head-on, and refutes his contention that he had just swerved into the left lane after being cut off by another driver.

This case presents a far different situation from those where courts determined that the evidence presented was as a matter of law insufficient to reach a trier of fact as "no reasonable man could accept it and base an inference upon it." Blum v. Fresh Grown Preserve Corp., 292 NY 241, 246 (1944). Khamis' account of being cut off by another car on a busy New York City street is not so implausible as to allow this court to conclude that it is incredible as a matter of law. This is particularly so in light of the testimony of Supervising Dispatcher Pressler given at his deposition that at the time of the accident he was in Rescue 1 looking outward through the rear door and that when he first saw the taxi in the same lane as Rescue 1 it was only two or three car lengths away from the rear of the truck. Moreover, questions remain as to whether Rescue 1, double parked in the way that it was, was lawfully stopped at the time of the accident and whether the truck's warning signals and lights were on. Accordingly, issues of fact remain regarding the proximate cause of the accident, including the credibility of the account given by Khamis.. See Pfaffenbach, 17 NY2d at 136; see also Loughlin, 186 AD2d at 177.

ii. Plaintiffs Walters and Schunk

The City also argues that it is entitled to summary judgment on the common law negligence claims asserted by plaintiffs Walters and Schunk because the double parked FDNY truck merely furnished the condition for the accident, rather than being the actual cause of the collision. This argument brings about the difficult task of determining the point at which a "negligent act may be viewed as a proximate cause, as opposed to merely furnishing the occasion [*8]for [an accident]." White v. Diaz, 49 AD3d 134, 135 (1st Dept 2008).

The City relies on Sheehan v. City of New York (40 NY2d 496 [1976]) to support its contention that the fact that Rescue 1 was double parked in a traffic lane may have furnished the occasion for the accident, but it was not the cause of it. In Sheehan, a city bus gradually stopped to let passengers disembark at an intersection on East 138th Street in the Bronx when it was struck from the rear by a sanitation truck with defective breaks. The bus driver testified that he failed to stop at the curb because of parked cars blocking the bus stop. The court held that the sanitation truck's defective breaks were the sole proximate cause of the accident since the bus appeared merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop). Id. at 502. The bus, therefore, merely furnished the condition or occasion for the accident.

However, in the more factually similar case of White v. Diaz, the court held that a "reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street." 49 AD3d at 139. Although the precise manner of the accident need not be foreseeable, it is generally foreseeable that by impeding traffic by double parking a van in a traffic lane, "an inattentive, careless or distracted driver might not stop in time to avoid the van." Id. at 140. The court therefore concluded that there remained a triable issue of fact regarding proximate cause.

In this case, unlike the situation in Sheehan, the driver of Rescue 1 double parked in a traffic lane on a busy avenue in Manhattan solely because he was unable to find a nearby parking spot. And unlike the bus in Sheehan, Rescue 1 was not in the business of making frequent stops in the street, nor, pursuant to FDNYSafety Bulletin No. 3, was it even permitted to stop in a traffic lane in a non-emergency situation. Regardless of whether the truck had reflectors or flashing lights operating at the time of the crash, which is a matter in dispute, a finder of fact could reasonably conclude that by double parking in the traffic lane of Columbus Avenue the driver of Rescue 1 placed the truck in the eventual path of the taxi and thus caused the accident. See White, 49 AD3d at 139 ("where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide"). Therefore, contrary to the position put forth by the City, it cannot be determined as a matter of law that Rescue 1 merely furnished the occasion for the accident.

D. GML § 205-a and Proximate Cause

The City's final argument in support of summary judgment dismissing the common law negligence claims, that Rescue 1 merely furnished the occasion for the accident rather than being a proximate cause, also fails with regard to the GML § 205-a claims. As discussed above, a reasonable trier of fact could find that Rescue 1 was a proximate cause of the accident. Further, Walters and Schunk have stated valid GML § 205-a claims in that they have "[1] identif[ied] the statute or ordinance with which the defendant failed to comply, [2] describe[d] 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." Downey v. Beatrice Epstein Family Partnership, L.P., 48 AD3d 616, 617 (2d Dept 2008). Thus, there is no basis at this point for dismissing the GML § 205-a claims.

In light of the foregoing, it is

ORDERED that motion for summary judgment brought by the City of New York in all [*9]three cases is denied.

This constitutes the decision and order of the court.

Dated: May12, 2009ENTER:_____________________________Matthew F. Cooper, J.S.C.. See, e.g., Fisher v. City of New York, 48 AD3d 303 (1st Dept 2008); Balsamo v. City of New York, 287 AD2d 22 (2d Dept 2001); Sciangula v. City of New York, 250 AD2d 833 (2d Dept 1998). It is also well established that the fact that a firefighter's injury does not occur at the site of a fire "does not preclude the applicability of General Municipal Law § 205-a." Lynch, 14 AD3d at 349. Thus, the mere fact that firefighters Walters and Schunk were injured while by the side of their parked FDNY rescue vehicle, as opposed to being at the actual scene of a rescue, does not mean that they were not within the confines of their "place of employment," as the term is used in Labor Law § 27-a, at the time of the accident.

The real issue, then, is whether, as the City maintains, Labor Law § 27-a is limited in its application to claims by firefighters for the failure of their employers to provide safe work equipment. The City cites to three cases which it argues limits police officers, and by extension firefighters, to causes of action predicated on Labor Law § 27-a to occurrences where deficient and unsafe equipment was the cause of the injury. In each of those cases, a police officer was provided with, and subsequently injured by, either a known disobedient and dangerous horse (Balsamo, 287 AD2d 22), a police car with a protruding and unpadded computer console (Campbell v City of New York, 31 AD3d 594 [2d Dept 2006]), or a deficiently padded police [*10]station training floor (Singleton v. City of New York, 13 Misc 3d 1173 [Sup Ct Kings County 2006]). Each of these cases recognizes a cause of action, or at least the existence of an issue of fact concerning the cause of action, under Labor Law § 27-a for the employer's failure to furnish safe equipment and thereby a safe workplace free from recognized hazards. Contrary to what the City suggests, however, none of those cases in any way limit the applicability of Labor Law § 27-a strictly to those situations where unsafe or faulty equipment was provided.

Williams v. City of New York, 2 NY3d 352, 364 (2004), on the other hand, defines the bounds of application of Labor Law § 27-a as a predicate for recovery for claims made pursuant to GML § 205-e (and thus § 205-a). In Williams, two police officers were shot and killed when a prison inmate gained access to a service gun in a police locker while the inmate was detained in a locker room that doubled as a detention area. The Court of Appeals held that Labor Law § 27-a was not applicable as it "does not cover the special risks faced by police officers because of the nature of police work." Williams, 2 NY3d at 368. The Court noted that it is highly unlikely that in enacting Labor Law § 27-a, the legislature intended it to pertain to judgments that "must be made by police supervisors in minimizing the dangers that police officers inevitably face, while at the same time protecting the public." Id. These decisions are "uniquely sensitive, difficult, and important" and "fall within the purview of police supervisors and department policy." Id.; Singleton, 13 Misc 3d at 1177. Those claims which generally arise from the risks unique to police work or firefighting, therefore, are not a valid basis for a Labor Law § 27-a violation.

In the case at hand, the risk of being struck by a car while at the back of a double parked truck cannot be deemed to be unique to firefighters based on the nature of their occupation. Every car and truck that is double parked in a travel lane is subject to the danger of being hit from behind by another vehicle driving in that same lane. At the very least there exists an issue of fact as to whether double parking a fire truck in a non-emergency situation created a recognized hazard within the meaning of Labor Law § 27-a. This is particularly so in light of FDNY Safety Bulletin No. 3. This bulletin, which was used to train fire department members on how they were to park a fire truck in a non-emergency situation, states that fire apparatus should never be double parked in a non-emergency situation.Inasmuch asthe deposition testimony of Lieutenant Carney, the commanding officer on board Rescue 1, establishes that he knew of the safety bulletin and the risks inherent with double parking, a finder of fact could reasonably conclude that the double parking of the vehicle under the circumstances presented here constituted a recognized workplace hazard under Labor Law § 27-a.

It should be noted that plaintiffs Walters and Schunk have also asserted violations of Vehicle and Traffic Laws §§ 1200 (Stopping, Standing and Parking — General Rules), 1201 (Stopping, Standing and Parking — Outside of Business or Residence Districts) and 1202 (Stopping., Standing and Parking — Prohibited in Specified Places), as well as 34 RCNY §§, 4-02 (Compliance with and Effect of Traffic Rules) and 4-08 (Parking, Stopping, Standing), as statutory or regulatory predicates in support of their cause of action under GML § 205-a. The City has not moved for summary judgment as to these alleged violations. Thus, even if it could be found at this point as a matter of law, which it cannot, that Labor Law § 27-a does not provide the requisite statutory predicate, an issue would still remain as to the other violations raised.

C. Common Law Negligence and Proximate Cause

The City's third argument in support of its motion for summary judgment is that the City [*11]cannot be liable under a theory of common law negligence for the injuries caused to either Walters, Schunk or Khamis, because Khamis, by his alleged negligent driving of the taxi, was the sole proximate cause of the accident. All three plaintiffs contend that there is an issue of fact regarding proximate cause, arguing that the double parking of Rescue 1, done in violation of traffic laws, contributed to, if not wholly caused, the accident.

i. Plaintiff Khamis

Where a vehicle is lawfully stopped in the street, a rear-end collision into the stopped car is sufficient to create a prima facie case of liability with respect to the driver of the moving vehicle. Edney v. Metropolitan Surburban Bus Auth., 178 AD2d 398, 399 (2d Dept 1991). Such a collision imposes a duty on the operator of the moving vehicle, the defendant in most cases, to present an explanation as to the cause of the accident rebutting the inference of negligence. Id. The explanation given to rebut the presumption of negligence is generally an issue of credibility for a jury to determine. Pfaffenbach v. White Plains Express Corp., 17 NY2d 132, 136 (1966).

The City claims that Khamis was solely responsible for the accident and the injuries caused by his collision into the stationary FDNY truck. While recognizing that credibility determinations are generally within the province of the trier of fact, the City argues that this court must determine as a matter of law that the deposition testimony given by Khamis regarding the facts surrounding the accident is incredible, unbelievable, manifestly untrue and physically impossible. See Loughlin v. City of New York, 186 AD2d 176, 177 (2d Dept 1992). The City also claims that Khamis' testimony is contrary to other evidence that has come to light in discovery, particularly the photographs showing that the damage to the front end of the taxi is uniform across the front. According to the City, this proves that Khamis hit Rescue 1 head-on, and refutes his contention that he had just swerved into the left lane after being cut off by another driver.

This case presents a far different situation from those where courts determined that the evidence presented was as a matter of law insufficient to reach a trier of fact as "no reasonable man could accept it and base an inference upon it." Blum v. Fresh Grown Preserve Corp., 292 NY 241, 246 (1944). Khamis' account of being cut off by another car on a busy New York City street is not so implausible as to allow this court to conclude that it is incredible as a matter of law. This is particularly so in light of the testimony of Supervising Dispatcher Pressler given at his deposition that at the time of the accident he was in Rescue 1 looking outward through the rear door and that when he first saw the taxi in the same lane as Rescue 1 it was only two or three car lengths away from the rear of the truck. Moreover, questions remain as to whether Rescue 1, double parked in the way that it was, was lawfully stopped at the time of the accident and whether the truck's warning signals and lights were on. Accordingly, issues of fact remain regarding the proximate cause of the accident, including the credibility of the account given by Khamis.. See Pfaffenbach, 17 NY2d at 136; see also Loughlin, 186 AD2d at 177.

ii. Plaintiffs Walters and Schunk

The City also argues that it is entitled to summary judgment on the common law negligence claims asserted by plaintiffs Walters and Schunk because the double parked FDNY truck merely furnished the condition for the accident, rather than being the actual cause of the collision. This argument brings about the difficult task of determining the point at which a "negligent act may be viewed as a proximate cause, as opposed to merely furnishing the occasion [*12]for [an accident]." White v. Diaz, 49 AD3d 134, 135 (1st Dept 2008).

The City relies on Sheehan v. City of New York (40 NY2d 496 [1976]) to support its contention that the fact that Rescue 1 was double parked in a traffic lane may have furnished the occasion for the accident, but it was not the cause of it. In Sheehan, a city bus gradually stopped to let passengers disembark at an intersection on East 138th Street in the Bronx when it was struck from the rear by a sanitation truck with defective breaks. The bus driver testified that he failed to stop at the curb because of parked cars blocking the bus stop. The court held that the sanitation truck's defective breaks were the sole proximate cause of the accident since the bus appeared merely to have been at one point in the street where it had a right to be (the traveling lane) rather than at another point in the street where it had a right to be (the bus stop). Id. at 502. The bus, therefore, merely furnished the condition or occasion for the accident.

However, in the more factually similar case of White v. Diaz, the court held that a "reasonable jury could find that a rear-end collision is a reasonably foreseeable consequence of double parking for five minutes on a busy Manhattan street." 49 AD3d at 139. Although the precise manner of the accident need not be foreseeable, it is generally foreseeable that by impeding traffic by double parking a van in a traffic lane, "an inattentive, careless or distracted driver might not stop in time to avoid the van." Id. at 140. The court therefore concluded that there remained a triable issue of fact regarding proximate cause.

In this case, unlike the situation in Sheehan, the driver of Rescue 1 double parked in a traffic lane on a busy avenue in Manhattan solely because he was unable to find a nearby parking spot. And unlike the bus in Sheehan, Rescue 1 was not in the business of making frequent stops in the street, nor, pursuant to FDNYSafety Bulletin No. 3, was it even permitted to stop in a traffic lane in a non-emergency situation. Regardless of whether the truck had reflectors or flashing lights operating at the time of the crash, which is a matter in dispute, a finder of fact could reasonably conclude that by double parking in the traffic lane of Columbus Avenue the driver of Rescue 1 placed the truck in the eventual path of the taxi and thus caused the accident. See White, 49 AD3d at 139 ("where there is any doubt, confusion, or difficulty in deciding whether the issue ought to be decided as a matter of law, the better course is to leave the point for the jury to decide"). Therefore, contrary to the position put forth by the City, it cannot be determined as a matter of law that Rescue 1 merely furnished the occasion for the accident.

D. GML § 205-a and Proximate Cause

The City's final argument in support of summary judgment dismissing the common law negligence claims, that Rescue 1 merely furnished the occasion for the accident rather than being a proximate cause, also fails with regard to the GML § 205-a claims. As discussed above, a reasonable trier of fact could find that Rescue 1 was a proximate cause of the accident. Further, Walters and Schunk have stated valid GML § 205-a claims in that they have "[1] identif[ied] the statute or ordinance with which the defendant failed to comply, [2] describe[d] 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." Downey v. Beatrice Epstein Family Partnership, L.P., 48 AD3d 616, 617 (2d Dept 2008). Thus, there is no basis at this point for dismissing the GML § 205-a claims.

In light of the foregoing, it is

ORDERED that motion for summary judgment brought by the City of New York in all [*13]three cases is denied.

This constitutes the decision and order of the court.

Dated: May12, 2009ENTER:_____________________________Matthew F. Cooper, J.S.C.