Gargiso v 9519 Third Ave. Rest. Corp. (2014 NY Slip Op 50500(U))

Gargiso v 9519 Third Ave. Rest. Corp.

2014 NY Slip Op 50500(U) [43 Misc 3d 1205(A)]

Decided on March 29, 2014

Supreme Court, Kings County

Rivera, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendants Louis Rocanelli and Theresa Rocanelli's (hereinafter jointly the Rocanelli defendants) joint motion filed on July 17, 2013, under motion sequence number two, for an order granting summary judgment in their favor and dismissing the complaint and all cross claims asserted against them pursuant to CPLR 3212.

Recitation in accordance with CPLR 2219 (a) of the papers considered on 9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant's motion filed on July 19, 2013, under motion sequence number three, for an order granting summary judgment in their favor and dismissing the complaint and all cross claims asserted against them pursuant to CPLR 3212.

On November 12, 2010, the plaintiff, Michael Gargiso (hereinafter Gargiso) commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. On September 23, 2011, Gargiso filed a supplemental summons and amended verified complaint.

By answer to the amended verified complaint dated January 12, 2012, defendant 9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant joined issue. Their [*2]answer plead one cross claim against their co-defendants.

By verified answer to the amended complaint dated August 22, 2011, the Rocanelli defendants joined issue. The Rocanelli's answer plead three cross claims against their co-defendants. Defendant 9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant interposed an answer to the three cross claims asserted by their co-defendants dated October 25, 2011. On May 14, 2013, a note of issue was filed.

Gargiso's complaint, bill of particulars and deposition testimony alleges, among other things, that on November 16, 2007, while employed as a New York City firefighter, he was injured while responding to a fire that began in the basement of Embers restaurant located at 9519 Third Avenue in the Bay Ridge section of Brooklyn, New York (the subject building). While descending an internal staircase in the subject building in an attempt to extinguish the fire, Gargiso stepped on something which caused him to fall. He was unable to identify what caused him to fall on the stairs.

Louis Rocanelli's deposition testimony and affidavit allege, among other things, that at the time of Gargiso's accident, he was the president of 9519 Third Avenue Restaurant Corp. and the manager of Embers Restaurant. He was also a part owner of the subject building and leased the premises to Embers Restaurant.

The amended verified complaint, dated August 4, 2011, alleges fifty two allegations of fact in support of two causes of action. The first cause of action is against all defendants for common law negligence. The second cause of action is against all defendants pursuant to General Municipal Law § 205-a.

LAW AND APPLICATION

Timeliness of the Instant Motions

It is undisputed that the note of issue was filed on May 14, 2013. The rule for determining the time in which an act must be done is to exclude the first day and include the last day of the period (General Construction Law § 20). Therefore, measuring from the day the note of issue is filed, the sixtieth day fell on July 13, 2013. However, July 13, 2013, was a Saturday, making July 15, 2013 the latest date which the defendants could make a timely motion for summary judgment (see Wilson ex rel. Wilson v Tompkins Ave. Grocery, Inc., 26 Misc 3d 1212(A)[(NYSup Jan 19, 2010] citing Foster v Thurber, 76 NYS2d 616 [NY Sup. 1947] and General Construction Law § 20). [*3]

The affidavit of service of 9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant states that the instant motion was served on July 15, 2013 and is therefore timely made. The affidavit of service of the Rocanelli defendant's motion states that it was served on July 16, 2013 or one day late. The Rocanelli defendants did not seek leave to make a late summary judgment motion or demonstrate good cause for the delay (see CPLR 3212 [a] Brill v City of New York, 2 NY3d 648 [2004]).

The affirmation of the Rocanelli defendants' counsel affirmatively states that they rely on the exhibits, arguments and legal reasoning advanced by 9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant in their motion for summary judgment. The court may properly consider an untimely summary judgment motion, provided the late motion is based on nearly identical grounds as a timely motion(Das v Sun Wah Restaurant, 99 AD3d 752, 754 [2nd Dept 2012]).

However, since neither defendant offered any legal argument or cited legal authority for their respective motions, the court cannot find that the defendants' respective motions for summary judgment dismissing the cross claims asserted by their co-defendants are based on identical grounds. Therefore, that branch of the Rocanelli defendants' motion which seeks dismissal of the cross claims against them is denied as untimely and the balance of their late motion will be considered on the merits.

Merits of the Instant Summary Judgment Motions

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2nd Dept 2010]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).

As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" (see Mennerich v Esposito, 4 AD3d 399 [2nd Dept 2004] ). An exception to the general rule is when the plaintiff is unable to identify the cause of his fall. In such a case, plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation (DeForte v Greenwood Cemetery, 2014 NY Slip Op 00958[2nd Dept 2014] DiLorenzo v S.I.J. Realty Co., LLC, —- NYS2d ——, 2014 WL 943024 (2nd Dept 2014) citing Deputron v A & J Tours, Inc., 106 AD3d 944, 945, 964 NYS2d 670; Izaguirre v New York City Tr. Auth., 106 AD3d 878, 878, 966 NYS2d 122; Racines v Lebowitz, 105 AD3d 934, 934, 963 NYS2d 348; Patrick v Costco Wholesale Corp., 77 AD3d [*4]810, 810).

On its motion for summary judgment, the defendant is required to make a prima facie showing affirmatively establishing that the defendant neither created nor had actual or constructive notice of the dangerous condition that caused the plaintiff's accident (Mitchell v Consolidated Edison, 27 AD3d 430 [2nd Dept 2006], citing Curzio v Tancredi, 8 AD3d 608 [2nd Dept 2004] see also, Baines v G & D Venturs, Inc., 64 AD3d 528 [2nd Dept 2009]). A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected (Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035 [2nd Dept 2010], quoting Hayden v Waldbaum, Inc., 63 AD3d 679, 679 [2nd Dept 2009]). In order to disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence (Feola v City of New York, 102 AD3d 827 [2nd Dept 2013]).

The first cause of action for common law negligence

The defendants contend that the first cause of action for common law negligence is barred by the principle referred to as of "the firefighter's rule" because plaintiff's injuries were caused by the natural hazard of his job as a fireman responding to a fire.

Traditionally, firefighters were prohibited from recovery in negligence for injuries sustained by a firefighter in the line of duty, that prohibition was commonly known as "the firefighter's rule" and was a complete affirmative defense to negligence actions brought by firefighters (see Santangelo v State of New York, 71 NY2d 393, 397 [1988]). The rational behind the rule was premised on the concept that firefighters were licensees who took the property as they found it, that the firefighters assumed the risk of injuries that are attendant to thier professions and that as a matter of public policy firefighters should not be permitted to recover for injuries sustained by the very situations which create a need for the firefighters' services (see Giuffida v Citibank, Corp., 100 NY2d 72 [2003]).

However, the firefighter's rule has been significantly modified and partially abrogated by statute (General Obligations Law § 11-106; see General Municipal Law § 205—a; Giuffida v Citibank, Corp., 100 NY2d 72 [2003]).

General Obligations Law § 11—106 largely abolished the firefighter's rule by giving firefighters and police officers a cause of action in negligence for injuries suffered while in the line of duty (Giuffida v Citibank, Corp., 100 NY2d 72 [2003]). It should be noted that the firefighter's rule is still applicable to actions against municipal employers and fellow workers, unless the cause of the injury was wholly unrelated to the assumed risks of the firefighter's duties (Delio v City of New York, 8 AD3d 325 [2nd Dept 2004]). In actions brought under General Obligations Law § 11—106 general common law negligence standards apply.

In the instant matter, the common law cause of action asserted by all defendants is based on premise liability. Gargiso alleges that the defendants negligently maintained the premises by allowing a dangerous condition to be present on the stairs leading to the basement. However, the defendants established their entitlement to judgment as a matter of law by submitting Gargiso's deposition testimony which demonstrated that he could not identify the cause of his fall without resorting to speculation (DeForte v Greenwood Cemetery, 2014 NY Slip Op 00958 [2nd Dept 2014]). As plaintiff's inability to identify the cause of the fall is fatal to a claim of negligence [*5]the defendant is not required to establish lack of notice nor that they did not cause or create a dangerous condition (see DiLorenzo v S.I.J. Realty Co., LLC, —- NYS2d ——, 2014 WL 943024 [2nd Dept 2014]). Furthermore, in opposition the plaintiff failed to raise a triable issue of fact. Accordingly, the first cause of action for common law negligence is dismissed against all defendants.

The second cause of action pursuant to General Municipal Law § 205-a

General Municipal Law § 205—a was also enacted to "mitigate the harshness of the firefighter's rule by creating a cause of action where none previously existed, and encourage compliance with relevant statutes and ordinances by exposing violators to liability for injuries resulting directly or indirectly from noncompliance" (Giuffida v Citibank, Corp., 100 NY2d 72 [2003]). General Municipal Law § 205-a provides that firefighters or representatives of deceased firefighters have a right of action in situations where the "negligence of any person. . . in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state . . . or [local] governments directly or indirectly' causes the firefighter's injury or death during the discharge of his or her duties" (Giuffida v Citibank, Corp., 100 NY2d 72 [2003] see also General Municipal Law § 205—a [1]). In other words, General Municipal Law § 205-a provides protection to a firefighter injured as a result of a building code violation that caused plaintiff's injuries by failing to prevent the fire or by exacerbating it (Id.).

To make out a claim under section 205—a, a plaintiff need only establish a "practical or reasonable connection" between the statutory or regulatory violation and the claimed injury and is not required to show the same degree of proximate cause as is required in a common-law negligence action (see Mullen v Zoebe, Inc., 86 NY2d 135, 140 [1995] Zanghi, 85 NY2d at 441).

To make out a valid claim under General Municipal Law § 205-a, which 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 or regulations, 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.

In the instant action the plaintiff alleges that the defendants violated New York City Administrative Codes §§ 27-4272; 27-4008; 310.7 and that the violations of those codes directly or indirectly caused harm to the plaintiff. New York City Administrative Code § 27-4272 provides for the proper discarding of lighted matches, cigars, and cigarettes. Administrative Code § 27-4008 provides that it is unlawful to "smoke, carry a lighted cigar, cigarette, pipe or match within any room or enclosed place, or in any cellar or basement, or in any part of any premises in which an explosive or highly combustible or flammable material is manufactured, stored or kept for use or sale." New York City Administrative Code § 310.7 provides that burning objects shall not be discarded in a manner that could cause ignition of other combustible material.

Plaintiff's allegations regarding the aforementioned violations of the New York City Administrative Codes are based on the fire incident report of Michael Farrell, the Fire Marshall that investigated the fire and his deposition transcript. Farrell noted in his affidavit and deposition an admission by Louis Rocanelli that the waiters working at Embers smoked [*6]cigarettes in the basement. He also noted in his fire incident report that the staff was known to smoke and to store on a shelf boxes of matches and other combustible material in the basement.

A defendant moving for summary judgment to dismiss claims under General Municipal Law § 205—a must show "either that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff's injuries" (Giuffida v Citibank, Corp., 100 NY2d 72 [2003]).

In support of the motion the defendants submit the deposition transcripts of Gargiso, Louis Rocanelli, and Farrell, as well as, the Fire Incident Report prepared by Farrell. Defendants also submit an affidavit of Louis Rocannelli disavowing any knowledge as to whether the waiters smoked in the basement and denying the statements attributed to him by Farrell in regards to his staff smoking in the basement.

Defendants contend that because Farrell did not conclusively establish that the fire was caused by the improper discarding of cigarettes or other lighted materials or by violation of one of the New York City Administrative Codes, that the plaintiff cannot sustain a cause of action under General Municipal Law § 205-a.

Contrary to the defendants assertions the plaintiff is not obligated at this stage in the litigation to establish a direct causal link between the claimed violations and the injuries. It is the defendants' burden on their summary judgment motions to establish that there was no violation or that there was no direct or indirect causation between the violation and the harm to the firefighter. As the submissions themselves raise a triable issue of fact as to whether there was smoking in the basement of the premises, as well as, possible improper storage of combustible materials, in violation of the New York City Administrative Code, the defendants have not met their burden under the General Municipal Law § 205-a cause of action. As the defendants failed to meet their burden the Court need not review the sufficiency of the opposition (Sablo v Westbrook, —- NYS2d ——, 2014 WL 944310 [2nd Dept 2014]:cf. see Cotter v Pal & Lee, Inc., 86 AD3d 463 [1st Dept 2001]). In the Cooter case the defendant met the burden to establish that there was no direct or indirect causal link to the firefighter's injury, however, the plaintiff in that case had alleged general building code violations that did not rise to a standard of care for the prevention of starting or exacerbating fires.

The Motion to Dismiss Cross Claims

9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant have moved pursuant to CPLR 3212 for an order dismissing the cross claims asserted by their co-defendants against them. However, contrary to the requirements of CPLR 2214, they submitted no argument or legal authority for the relief requested. Consequently, in the interests of judicial economy, this branch of their motion must be denied. The denial is without prejudice.

CONCLUSION

9519 Third Avenue Restaurant Corp. individually and d/b/a Embers Restaurant's motion for an order pursuant to CPLR 3212 dismissing the complaint is granted as to the first cause of action and denied as to the second cause of action.

9519 Third Avenue Restaurant Corp. Individually and d/b/a Embers Restaurant's motion for an order pursuant to CPLR 3212 dismissing Louis Rocanelli and Theresa Rocanelli's cross claims asserted against them is denied without prejudice.

Louis Rocanelli and Theresa Rocanelli's motions for an order pursuant to CPLR 3212 [*7]dismissing the complaint is granted as to the first cause of action and denied as to the second cause of action.

Louis Rocanelli and Theresa Rocanelli's motion for summary judgment dismissing their co-defendants' cross claims asserted against them is denied as untimely and without prejudice to seek leave to make a late summary judgment motion.

The foregoing constitutes the decision and order of this Court.

Enter:March 29, 2014