The following papers numbered 1 through 47 were read on the motion by defendant/third party plaintiff Capra Re Inc. ("Capra") [Mot. Seq. 1], made pursuant to CPLR 3212, seeking summary judgment dismissing the complaint, the motion of defendant/third party defendant La Fontanella Restaurant ("La Fontanella") [Mot. Seq. 2], made pursuant to CPLR 3212, seeking summary judgment dismissing the complaint and cross-claims, and the cross-motion of Vincent Bucaj ("plaintiff") [Mot. Seq. 3], seeking sanctions against defendants pursuant to 22 NYCRR § 130-1.1:

This is an action for personal injuries. On March 16, 2012 at approximately 3:00 p.m., plaintiff, a Village of Pelham firefighter, responded to a fire in the basement of La Fontanella restaurant at 115 Wolfs Lane, Pelham, New York. The ground floor and basement area of the premises are occupied by La Fontanella, which leases these areas from Capra. The premises contain apartments above the first floor restaurant. In addition to the use of the basement by the restaurant for storage and office, the basement contains heating and other mechanical equipment which services the apartments.

Plaintiff states in his deposition he was poking the ceiling in order to determine if the fire was above him in the ceiling or what is called "pocket fires or hidden fires." While doing so, a section of the ceiling he described as approximately 4' x 4' dropped and came down across the left side of his upper body and hit him on the left shoulder, left arm, and head area resulting in his injuries. According to the Westchester County [*2]Arson Task Force Investigation Summary Report, the investigation reached no conclusion, but merely stated, "cannot eliminate electrical or smoking" as the cause of the fire. The fire was determined to have started in the basement office of the restaurant.

La Fontanella's manager, Fadil Rugova, in his deposition testimony and affidavit, states that he may have smoked a cigarette while taking a break in his basement office. The smoke was discovered in the basement when he returned downstairs approximately ten minutes after his break ended to see whether a circuit breaker had been triggered after it was reported to him that the telephone was not working.

Plaintiff alleges two causes of action against defendants predicated on common-law negligence and General Municipal Law (GML) § 205-a. Defendants argue there is no common law negligence since plaintiff's injuries resulted from the increased risk inherent in his employment as a fire fighter. Defendants further argue that plaintiff has not demonstrated that a violation of law has occurred such that GML § 205-a can be applied. Capra additionally argues that as an out-of-possession landlord, it was not negligent in any way and is entitled to summary judgment for both common law and contractual indemnification.

Plaintiff's first cause of action is brought under GML 205-(a)(1) which permits a firefighter to recover for personal injuries incurred in the course of the discharge of his firefighting duties where the injuries occur:

"Directly or indirectly as a result of any negligent, omission, willful or culpable negligence of any person or persons in failing to comply with the requirement of any of the statutes, ordinances, rules, orders and requirements of any of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus..."

To establish a cause of action under the statute, a plaintiff must: "1) identify the statute or ordinance with which the defendants 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 [2004], quoting Giuffrida v Citibank Corp., 100 NY2d 72, 79 [2003]. An "indirect cause" is "simply a factor that — though not a primary cause — plays a part in producing the result." Giuffrida v Citibank Corp, supra at 80.

In the Bill of Particulars, ¶9, plaintiff alleges defendants violated the following local and state statutes:

1. New York Clean Indoor Air Act, Public Health Law ("PHL") § 1399-n, et seq;

2. Westchester County Smoke-Free Worksite Law [Westchester County Sanitary Code Art. XX; Chapter 534 of the Laws of Westchester County];

3. Westchester County Department of Health § 873.2001 et seq.; and

4. Local Law 3 of 2012 of the Village of Pelham Code §§ 34-1 to 34-25

For purposes of a GML 205-a cause of action, the plaintiff is not required to show the same degree of proximate cause as is required in a common law negligence action. Giuffrida v Citibank Corp, supra; Paolicelli v Fieldbridge Associates, LLC, 120 AD3d 643, 646 [2d Dept 2014]. The plaintiff need only establish a "practical or reasonable connection between the statutory or regulatory violation and the claimed injury," Giuffrida v Citibank Corp, supra. The statute or ordinance identified must be part of a "well-developed body of law and regulation" that imposes "clear legal duties" or mandates the "performance or nonperformance of specific acts," Paolicelli v Fieldbridge Associates, LLC, supra; Gammons v City of New York, 109 AD3d 189 [2d Dept 2013], aff'd 24 NY3d 562 [2014]; Vosilla v City of New York, 77 AD3d 649, 650 [2d Dept 2010].

A. PHL Article 13-E. Regulation of Smoking in Certain Public Areas

The Clean Indoor Air Act [amended, L. 2003, ch. 13] prohibits smoking in indoor places in New York State where people work or socialize.

As relevant to this case, PHL § 1399-n defines the following for the purposes of the statute:

1. "Employer" means any person, partnership, association, limited liability company, corporation or nonprofit entity which employs one or more persons...;

3. "Food service establishment" means any area, including outdoor seating areas....in which the business is the sale of food for on-premises consumption; and

5. "Places of employment" means any indoor area or portion thereof under the control of an employer in which employees of the employer perform services, and shall include, but not be limited to offices...warehouses... lounges...rooms or areas containing photocopying equipment or other office equipment used in common..."

PHL § 1399-o[1] provides, in pertinent part, that smoking shall not be permitted and no person shall smoke in places of employment or food service establishments.

PHL § 1399-p requires the posting of "smoking" or "no smoking" signs where smoking is regulated by this Article, by the owner, operator, manager or other person having control of the area.

PHL § 1399-r [1] provides that the owner or manager of a place covered by this article has the right to designate the entire place, or any part thereof, as a nonsmoking area;

PHL § 1399-r[3] states, "Smoking may not be permitted where prohibited by any other law, rule, or regulation of any state agency or any political subdivision of the state. Nothing herein shall be construed to restrict the power of any county, city, town, or village to adopt and enforce additional local law, ordinances, or regulations which comply with at least the minimum applicable standards set forth in this article."

PHL § 1399-s[1] provides, inter alia, an affirmative defense that during the relevant time period actual control of the area was not exercised by the respondent, but rather by a lessee, the sublessee or any other person.^[FN3]

PHL § 1399-s[3] provides that the failure to abide by 1399-o constitutes a violation and that "it shall be unlawful for any person to smoke in any area where smoking is prohibited or restricted under PHL § 1399-o."

Rugova's deposition testimony regarding whether he smoked a cigarette in the basement office shortly before the fire is that he "thinks he did" [Deft. Ex. N, p. 62] and his affidavit states he "may have smoked a cigarette but cannot say for sure if I smoked that day." [Rugova Aff., Ex. O, ¶ 5]. It remains unresolved, and not for this court to determine, whether Rugova was smoking in the office area, and if so, whether he extinguished his cigarette, or it was an unextinguished cigarette that caused the fire.

It is undisputed in the record that the basement office was used by Rugova for the management of the restaurant and was part of his place of employment. In Rugova's words, "the office was private and not utilized by other employees in connection with the operation of the business", but he admits "it was utilized as my private office since I began managing the restaurant.......it was equipped with a desk and chairs along with shelving where various office supplies were located. The office also had a phone and copier/fax machine." [Rugova Aff., Ex. O, ¶ 3]. La Fontanella's contends in its motion papers that Rugova was smoking in a private office that was neither a "place of employment" nor a "food service establishment", and thereby permissible. The court finds this is a triable issue of fact.

Defendant La Fontanella further argues that even if Rugova's act of smoking in his office violated one or more of the ordinances alleged by plaintiff, it cannot be said that such violation(s) caused plaintiff's injuries either "directly or indirectly." Downey v Beatrice Epstein Family Partnership, L.P., 48 AD3d 616 [2d Dept], lv. den. 11 NY3d [*3]702 [2008]. Whether Rugova's alleged noncompliance with a statutory smoking prohibition directly or indirectly caused plaintiff's line-of-duty injuries is similarly for the factfinder. Paolicelli v Fieldbridge Associates, LLC, supra.

As to Capra, there is no dispute that the fire was located in the office area occupied solely by La Fontanella. Capra was not an employer of Rugova, as defined in PHL § 1399-0[2], and therefore, not responsible, pursuant to PHL § 1399-o[4], for the "place of employment" under the control of an employer. Additionally, the lease between Capra, as landlord, and 115 Wolfs Lane Restaurant Corp, as tenant, indemnified Capra for any loss or damage arising from any fault or negligence by the tenant. [Def. Ex. K, Lease, Article 8.0, page 5]; Alnashmi v Certfied Analytical Group, Inc., 89 AD3d 10 [2d Dept 2011].

In view of the foregoing, the court finds triable issues of fact as to La Fontanella's liability, but no liability as to Capra under PHL § 1399.

B. Chapter 534 of the Laws of Westchester County - Westchester County Smoke-Free Worksite Law

The preamble to the Westchester Smoke-Free Worksite Law states it was enacted to ameliorate the effects of secondary and tertiary smoke that pose a threat to the health, safety and well-being of the citizens of the county who do not smoke.

Sec. 534.02 [Definitions] identifies who is an employee and an employer and what is a place of employment. In the other sections of this Chapter, unlike the PHL, there is no provision for the employer to designate areas where smoking is permitted. La Fontanella is an employer in that it has more than one employee, and it operates an indoor enclosed area. "Places of employment" is defined as "any indoor or outdoor enclosed area located within the County of Westchester under the control of a public or private employer which employees normally used during the course of employment." Section 534.02(3). Mr. Rugova, a manager-employee of the restaurant, used the office during the course of his employment. There remain disputed issues of fact as to what employee or employees had access to the basement office during the course of employment, or were ever present in the office, and whether the County's Smoke-Free Worksite Law was violated.

As to Capra, the court finds there can be no liability ascribed, in that the Code sections speak only of employers and employees, of which Capra is neither. Thus, as to Capra, the court finds that Chapter 534 of the Laws of Westchester County does not apply.

C. Westchester County Department of Health § 873.2001, et. seq. (ArticleXX)

Once again, the preamble speaks of the dangers of second hand smoke in [*4]enclosed areas [§ 873.2001]. The restrictions against smoking in enclosed areas apply to employers of more than one employee [§ 873.2011(5)] of a food service establishment for the sale of food on-premises [§ 873.2001(7)]. Place of employment is defined as an indoor area or portion thereof under the control of an employer in which employees of the employer perform services but which is not generally accessible to the public [§ 873.2011(9)]. Smoking area means an enclosed indoor area in which smoking is permitted. Such smoking area shall be clearly designated and separate from an area in which smoking is not permitted. In a place of employment, the smoking area shall be separated from the effects of smoke-free work area by walls or some other means, equally effective in reducing the effects of smoke on the smoke-free work area, other than ventilation systems or air cleaning devices [§ 873.2011(13)]. The Code provides that the owner, operator of manager of the indoor area open to the public, subject to per se prohibited areas, may designate a smoking area or areas [§ 873.2021(3)]. An employer may set aside a work area for smoking if all employees assigned to the work area agree to the designation [§873.2021(6)(B)]. An employer may designate a separate enclosed room or rooms not open to the public for use as a smoking area [§ 873.2021(6)(F)]. Here, whether the basement office was sufficiently designated and separated from the area in the restaurant where smoking was not permitted are triable issues of fact,

§ 873.2101 ["Limitations of Causes of Action"] provides that an employer, owner or operator of a food service establishment, or place of employment regulated by this article who complies or fails to comply with the provisions of this article shall not be subject to any legal liability or action solely as result of such compliance or noncompliance except as provided in section § 873.2091. That section specifically deals with the imposition of penalties.

As to La Fontanella, it is for the jury to determine whether the basement office falls within the exception of a permissible smoking area. However, the court finds that Capra cannot be held responsible under these Code sections as it is not an employer subject to these provisions. Notwithstanding the last cited section, 873.2101, as to the limitation on liability, the court finds that the County legislation, as a matter of preemption, cannot abrogate the protection afforded firefighters under GML § 205-a. Sunrise Check Cashing and Payroll Services, Inc. v Town of Hempstead, 91 AD3d 126 [2d Dept 2011]. As already stated, it is for the jury to determine whether the no-smoking provisions, if proved, are a direct or indirect cause of the line-of-duty injuries that plaintiff allegedly suffered.

D. Village of Pelham Village Code, Article 34

The court finds and determines the Pelham Village Code provisions are inapplicable to the subject matter of this action. There is no allegation that the electrical system, recognized by the fire inspector as a potential cause of the fire, was other than code compliant at the time. Thus, the provisions of the Village Code which deal with the office of the building inspector, his duties, and the duties of property owners in relation [*5]to his office, all of which is included in Article 34 of the Village Code, are not relevant.

In sum, on plaintiff's first cause of action under GML 205-a, the court concludes that triable issues of fact exist as to whether defendant LaFontanella or its employees violated the "particularized mandates or clear legal duties" imposed by the New York Clean Indoor Air Act, Public Health Law § 1399-n, et seq, the Westchester County Sanitary Code Art. XX; Chapter 534 of the Laws of Westchester County [Westchester County Smoke-Free Worksite Law]; and the Westchester County Department of Health § 873.2001 et seq.; and whether the alleged statutory or regulatory violations by defendants directly or indirectly caused plaintiff's claimed injuries. Giuffrida v Citibank Corp, supra.

The firefighter rule provides that "police and firefighters may not recover in common-law negligence for the line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment," Wadler v City of New York, 14 NY3d 192,194 [2010]. The rule bars a police officer's or firefighter's recovery "where the performance of his or her duties increased the risk of the injury happening and did not merely furnish the occasion for the injury. Zanghi v Niagara Frontier Transportation Commission, 85 NY2d 423, 436 [1995]. In Zanghi, the Court provided guidance in determining when a common-law claim may properly be asserted:

"For example, if a police officer who is simply walking on foot patrol is injured by a flower pot that fortuitously falls from an apartment window, the officer can recover damages because nothing in the acts undertaken in the performance of police duties placed him or her at increased risk for that accident to happen. On the other hand, if an officer is injured by a suspect who struggles to avoid an arrest, the rule precludes recovery in tort because the officer is specially trained and compensated to confront such dangers." Id at 440.

Here, the injuries claimed to have been sustained by plaintiff were proximately caused during the course of his carrying out his official duties as a firefighter, and as such, were an anticipated risk associated with his profession. The emergent circumstances exposed him to the risk of injury, as when a firefighter is injured due to a collapse of a burning building, a particular risk firefighters are asked to brave by their employment. Zanghi v Niagara Frontier Transportation Commission, supra, at 440.

Accordingly, the court concludes, as a matter of law, that the second cause of action alleging common-law negligence, as against both Capra and La Fontanella, is dismissed. Kelly v City of New York, 134 AD3d 676 [2d Dept 2015]; Moore v City of New York, 126 AD3d 679 [2d Dept 2015].

Plaintiff moves for sanctions on the grounds that defendants have asserted a baseless legal position when arguing that the "firefighter's rule" bars the common-law negligence cause of action. While defendant's sweeping assertion failed to recognize the harsh effects of the firefighter's rule have been abated to a great extent by GOL § 11-106, which allows the firefighter to sue for common-law negligence [Giuffrida, supra at 77-78], the creation of that cause of action still requires this court to review the facts in this case, and the applicable law, such that the court has dismissed that common-law negligence cause of action against Capra and La Fontanella. Hence, there was merit to defendants' motions in this regard, and at least, their position in this case cannot be viewed as frivolous as that term is defined in 22 NYCRR § 130.1.1. Therefore, plaintiff's cross-motion for the imposition of sanctions is denied.

Accordingly, it is hereby

ORDERED that the motion of Capra Re Inc., defendant/third party plaintiff, made pursuant to CPLR 3212 (Seq. #1), to dismiss the complaint, is granted; and it is further

ORDERED that the motion of La Fontanella Restaurant, defendant/third party defendant, made pursuant to CPLR 3212 (Seq. #2), is denied as to the first cause of action alleging violation of GML § 205-a, and granted as to the second cause of action alleging common-law negligence; and it is further

ORDERED that plaintiff's motion (Seq. #3) for the imposition of sanctions pursuant to 22 NYCRR § 130.1-1 is denied; and it is further

The remaining parties are directed to appear in the Settlement Conference Part of this Court, Room 1600, on June 14, 2016 at 9:15 a.m.

The foregoing constitutes the Decision/Order of the court.