Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

PapersNumbered

Notice of Motion and Affidavits Annexed................... 1-2

Opposing Affidavits/Affirmations................................3

Reply Affidavits/Affirmations.......................................4 [*2]

Sur-Reply............................................................. ..........

Upon the foregoing papers, in this action by plaintiff Allison Gammons (plaintiff) to recover damages for personal injuries allegedly sustained by her, defendants the City of New York (the City) and the New York City Police Department (the NYPD) (collectively, defendants) move, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint as against them, which consists of a first cause of action for common-law negligence and a second cause of action for a violation of General Municipal Law § 205-e.

On September 18, 2007, plaintiff was a police officer for the NYPD. Plaintiff's assignment that day was barrier section detail, which consisted of plaintiff and four other officers, namely, Officer DeSimone, Officer Anthony Antonellis, Officer Pattason, and Officer Lisa Chapman, taking a flatbed truck from the NYPD barrier section in Long Island City in Queens, and going to predetermined locations to load the truck with wooden barriers. At that time, there were older trucks and newer trucks in use at the NYPD. The newer trucks were four to five feet longer than the older trucks and they had a backing on them which closed. The truck which these police officers were given that day was an older truck. The truck's flatbed was approximately five to six feet above the ground with railings on the sides. The truck was open with no railing or gate running along the backside of the flatbed.

At the first location, which was in the vicinity of 14th Street and Wythe Avenue, in Brooklyn, Officer DeSimone stayed in the truck in order to "inch" it forward as the other police officers gathered the barriers that were previously placed on the sidewalk. In order to perform the assigned task, plaintiff and Officer Antonellis got up onto the flatbed portion of the truck and Officer Chapman and Officer Pattason remained on the ground to gather the barrier components and pass them up to plaintiff and Officer Antonellis. The barriers, which were made of wood, consisted of two "A" frames and a long wood beam. The long wood beam would be passed from the police officers on the ground up and over the side of the flatbed to plaintiff and Officer Antonellis. The wood beams would then be placed by plaintiff and Officer Antonellis lengthwise along the side of the flatbed, and each beam would be placed next to a previously placed beam and two wooden pieces on the exterior of the beam would be interlocked into place with these pieces on the other beam. The "A" frames would then be passed up and stacked in the center of the flatbed.

After about 20 barriers were placed onto the flatbed in this manner, plaintiff was proceeding to stack another beam into place by interlocking it, and she was standing with her back to the rear of the truck and Officer Antonellis was standing closer to the cab. Plaintiff was holding one end of the wooden beam with Officer Antonellis holding the other end when Officer Antonellis pushed his end of the beam forward toward plaintiff, and, according to plaintiff, Officer Antonellils struck her in the chest with the beam. This [*3]caused plaintiff to lose her balance and she fell backward off the end of the truck and on the ground. Plaintiff allegedly sustained injuries to her right shoulder and cervical spine due to her fall.

Consequently, on January 27, 2009, plaintiff filed this action against defendants. Plaintiff's complaint contains two causes of action. Plaintiff's first cause of action alleges that defendants were negligent in the ownership, operation, maintenance, management, and supervision of the truck, and that such negligence caused her accident. Plaintiff's second cause of action alleges that defendants violated General Municipal Law § 205-e by failing to comply with Labor Law § 27-a.

Defendants, in support of their motion insofar as it seeks dismissal of plaintiff's first cause of action, argues that the firefighter's rule precludes plaintiff from asserting a common-law negligence cause of action against them. Pursuant to the firefighter's rule, "police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment" (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 436 [1995]). Since 1996, the firefighter's rule has been applicable only in actions against a "police officer's or firefighter's employer or co-employee" (General Obligations Law § 11-106 [1]).

The requisite connection between a plaintiff's injury and the special hazards associated with his or her police duties exists "where the performance of the police officer's . . . duties increased the risk of the injury happening and did not merely furnish the occasion for the injury" (Zanghi, 85 NY2d at 439; see also Wadler v City of New York,14 NY3d 192, 194-195 [2010]). "In other words, where some act taken in furtherance of a specific police . . . function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common-law negligence" (Zanghi, 85 NY2d at 439). "By contrast, a common-law negligence claim may proceed where an officer is injured in the line of duty merely because he or she happened to be present in a given location, but was not engaged in any specific duty that increased the risk of receiving that injury" (Id. at 439-440).

Plaintiff argues that the firefighter's rule does not apply to bar her common-law negligence cause of action because the accident was caused by a mundane risk and not the heightened risks associated with the particular dangers inherent in police work. Plaintiff asserts that her injuries were sustained doing work no different than the work that would be performed by private and municipal workers, and that she was not exposed to any heightened risk that is special to police work.

Plaintiff's argument must be rejected. The firefighter's rule has been held to bar common-law negligence actions arising from injuries that were sustained in circumstances occurring under non-exigent conditions; injuries need not occur during activities as exigent as making arrests, pursuing suspects, or responding to emergencies for the firefighter's rule to apply (see e.g. Wadler,14 NY3d at 195; Norman v City of New York, 60 AD3d 830, 831 [2009]; Sexton v City of New York, 32 AD3d 535, 536 [2006]; Brady v City of New Rochelle, 296 AD2d 365, 366 [2002]; Bloch v City of New York, 278 AD2d 351, 351 [2000]; Carter v City of New York, 272 AD2d 498, 499 [2000]; Melendez v City of New York, 271 AD2d 416, 417 [2000]; Petendree v City of Yonkers, 270 AD2d 403, 403 [2000]; Simons v City [*4]of New York, 252 AD2d 451, 452 [1998]; Byrnes v City of New York, 249 AD2d 352, 352-353 [1998]; Smith v Count of Erie, 210 AD2d 933, 933 [1994]). The determining factor is not the exigency of the situation giving rise to the injury, but the fact that the risk-inducing situation arose from the plaintiff's work.

Here, plaintiff was engaged in the specific police function of NYPD barrier detail, which involved gathering and loading police department barriers that were used for the purpose of regulating traffic. Thus, plaintiff was engaged in an act in furtherance of a specific police function, which exposed her to a heightened risk of falling off the rear of the flatbed truck. Consequently, pursuant to the firefighter's rule, plaintiff may not recover damages for common-law negligence (see Ferriolo v City of New York,72 AD3d 490, 490-491 [2010]; Foley v City of New York, 43 AD3d 702, 704 [2007]).

Plaintiff additionally argues that defendants waived the affirmative defense of the firefighter's rule by failing to assert it in their answer. Although it is true that defendants failed to plead the firefighter's rule as an affirmative defense in their answer (see CPLR 3018 [b]), the waiver of an unpleaded affirmative defense may be retracted by its assertion in connection with a summary judgment motion, and such unpleaded affirmative defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party so long as the opposing party has had a full opportunity to respond (see Sullivan v American Airlines, Inc.,AD3d, 2011 NY Slip Op 00215, *2 [2011]; Lerwick v Kelsey, 24 AD3d 918, 919 [2005]; Sheils v County of Fulton, 14 AD3d 919, 921 [2005]; Allen v Matthews, 266 AD2d 782, 784 [1999]; Adsit v Quantum Chem. Corp.,199 AD2d 899, 900 [1993]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 832 [1980], affd 54 NY2d 883 [1981]). Here, there is no surprise or prejudice to plaintiff, and plaintiff has had a full opportunity to address this defense in her opposition papers. Thus, summary judgment dismissing plaintiff's first cause of action is mandated (see CPLR 3212 [b]).

In support of their motion insofar as it seeks summary judgment dismissing plaintiff's second cause of action, defendants argue that plaintiff cannot maintain a General Municipal Law § 205-e claim. 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 the [police officer] 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"'" (Williams v City of New York, 2 NY3d 352, 363 [2003], quoting Giuffrida v Citibank Corp.,100 NY2d 72, 79 [2003], quoting Zanghi, 85 NY2d at 441).

General Municipal Law § 205-e (1) "creates a statutory cause of action where a police officer is injured by another's failure 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 of any and all their departments, divisions and bureaus'" (emphasis added). "While this language is seemingly limitless, it is well settled that the statute cannot reasonably be applied literally in accordance with its broad language . . . 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'" (Williams, 2 NY3d at 364, quoting Galapo v City [*5]of New York, 95 NY2d 568, 574 [2000] [internal quotation marks omitted]; see also Desmond v City of New York, 88 NY2d 455, 464 [1996]).

As a predicate for her General Municipal Law § 205-e claim, plaintiff relies upon Labor Law § 27-a (3) (a) (1),^[FN1] the Public Employee Safety and Health Act (PESHA, the New York State equivalent of OSHA), which mandates, in its "general duty" clause, that every employer shall provide its employees "a place of employment which [is] free from recognized hazards that are causing or are likely to cause . . . serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees."

Defendants contend that Labor Law § 27-a is not a proper statutory predicate for a General Municipal Law § 205-e cause of action because it creates solely an administratively enforceable standard and no private right of action. This contention is devoid of merit. It has been expressly held that Labor Law § 27-a may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e (see Norman, 60 AD3d at 831; Campbell v City of New York, 31 AD3d 594, 595 [2006]; Balsamo v City of New York, 287 AD2d 22, 27-28 [2001]).

Defendants further contend that there was no "recognized hazard" sufficient to serve as a statutory predicate to plaintiff's General Municipal Law § 205-e cause of action. Plaintiff, in opposition, asserts that falling from a height or from a flatbed truck in particular is a known hazard. Plaintiff contends that the flatbed truck from which she fell should have had barricades or a railing on the rear of the flatbed. Plaintiff points out that the newer longer flatbed trucks in use by defendants at the time had a backing on their rear which closed. Plaintiff also asserts that the use of this shorter flatbed truck did not provide a safe place to work because there was little room to maneuver. Specifically, plaintiff points out that the wood barriers were twice the length of shorter metal barriers which were also used by the NYPD, and that these wood barriers were too long to fit completely on the flatbed of the older shorter trucks and that they, therefore, hung off the end of the truck, providing less space to work for the police officers on the flatbed.

Defendants argue that the short length of the flatbed truck and the absence of a railing on its rear did not render the truck inherently physically dangerous or defective. Defendants assert that plaintiff's theory of liability is merely that the assignment and use to which the truck was put was improper for the performance of the barrier detail. Defendants contend that Labor Law § 27-a (3) encompasses only "physical and environmental hazards in the workplace," and not the practice or use to which the truck was put. Defendants maintain that putting something to an improper use or an improper [*6]practice cannot constitute a physical or environmental hazard under Labor Law § 27-a (3), and that the improper use or assignment of the truck is not the type of hazard encompassed by Labor Law § 27-a (3).

Defendants' argument must be rejected. Contrary to defendants' argument, plaintiff's allegations do not merely implicate the policies and procedures of the NYPD utilized to manage the inherent dangers of police work (compare Williams, 2 NY3d at 368). Rather, plaintiff's claim is that the flatbed truck itself was unsafe for loading the wooden barriers because it was too short and lacked a rear railing, and that defendants failed to provide her with a safe truck to ameliorate the recognized risk of falling from it due to its inadequacy for the assigned task (see Singleton v City of New York, 13 Misc 3d 1173, 1177 [2006]). Thus, Labor Law § 27-a (3) (a) (1) provides a proper predicate for plaintiff's General Municipal Law § 205-e claim (see Campbell, 31 AD3d at 595; Balsamo, 287 AD2d at 28; Walters v City of New York, 23 Misc 3d 1127 [A], 2009 NY Slip Op 50975 [U], *5-6 [Sup Ct, NY County 2009]).

Defendants further argue that plaintiff has not set forth facts from which it may be inferred that their negligence directly or indirectly caused her injuries (see Link v City of New York, 34 AD3d 757, 758 [2006]). Defendants assert that plaintiff cannot prove that the truck itself was a direct or indirect cause of the accident. Defendants contend that the sole cause of the accident was Officer Antonellis' act of pushing the wooden beam towards plaintiff, thereby causing her to fall.

In this regard, it is noted that in order to sustain a claim under General Municipal Law § 205-e, a "plaintiff is not required to show the same degree of proximate cause as is required in a common-law negligence action" (Giuffrida, 100 NY2d at 81 [internal quotation marks and citation omitted]). Rather, "a plaintiff need only establish a practical or reasonable connection' between the statutory or regulatory violation and the claimed injury" (id., quoting Mullen v Zoebe, Inc., 86 NY2d 135, 140 [1995]; see also Zanghi, 85 NY2d at 441).

Moreover, plaintiff, in response to defendants' argument, disputes that Officer Antonellis' conduct in pushing the wooden beam towards her was the sole cause of her accident. In any event, there is a material and triable issue of fact as to whether the failure by defendants to provide plaintiff with a longer truck or railings on the rear of the flatbed of the truck were substantial factors in causing plaintiff's accident regardless of whether plaintiff was caused to move backward by the conduct of a coworker. Consequently, summary judgment dismissing plaintiff's second cause of action must be denied.

Accordingly, defendants' motion for summary judgment is granted insofar as it seeks dismissal of plaintiff's first cause of action, and is denied insofar as it seeks dismissal of plaintiff's second cause of action.

This constitutes the decision and order of the court.

_____________________

February 25, 2011Kenneth P. Sherman [*7]

Justice Supreme Court