Pursuant to CPLR 2219 (a), the following papers were read on this motion: NYSCEF Doc Nos. 31-58.

Plaintiff Heath Blackwell brought this action for personal injuries, allegedly sustained while exiting his apartment during a fire, as well as for property damage. Plaintiff was a tenant at the building located at 1276 Broadway, Brooklyn, New York, where the fire occurred. The building was owned by defendant Triangle Square Corp. and managed by defendant Joseph Felix Reality (together "defendants").

Plaintiff claims that defendants were negligent in, among other things, failing to install and maintain a working smoke detector in his room, within the apartment that he shared. Defendants move for summary judgment dismissing the action, arguing, inter alia, that they were not negligent as they had installed smoke detectors in plaintiff's apartment, though not in his individual room.

The building at issue is mixed-use, with a commercial space on the first floor, a basement area, and a second floor consisting of two residential apartments. Plaintiff lived in one of those apartments with two other cotenants, where they shared a common hallway, bathroom and kitchen. Plaintiff's bedroom was the furthest from the apartment's entrance. In the common hallway outside of their rooms, each occupant had their own closet.

On December 24, 2019, a fire started in one of plaintiff's cotenants' closet. Upon discovering the fire, plaintiff did not immediately attempt to leave the apartment. Instead, plaintiff attempted to extinguish the fire, first with a pot of water he filled from the kitchen sink, and when that was unsuccessful, by attempting to use water from the bathroom. When the lights went out, plaintiff returned to his room to dress before exiting the apartment. However, at the time plaintiff attempted to exit, the hallway was engulfed in flames, and plaintiff was injured.

Two days after the fire, a Fire Marshal inspected the apartment. The Fire Marshal determined that the fire had originated from an outlet in a cotenant's closet. The parties have provided no evidence as to what condition specifically caused the fire. It is also undisputed that there were two smoke detectors installed in the apartment, located in the hallway and in a cotenant's bedroom, but none in plaintiff's bedroom. Plaintiff stated that he did not hear the [*2]smoke detectors sound. Rather, he was alerted to the fire when he saw smoke coming through his bedroom door.

Summary judgment is a drastic remedy that should not be granted where there exists a triable issue of fact (T. Mina Supply, Inc. v Clemente Bros. Contr. Corp., 194 AD3d 879, 880 [2d Dept 2021]; Marino v Jamison, 189 AD3d 1021 [2d Dept 2020]; Integrated Logistics Consultants v Fidata Corp., 131 AD2d 338 [1st Dept 1987]; Ratner v Elovitz, 198 AD2d 184 [1st Dept 1993]). This burden is a heavy one, and all facts must be viewed in a light most favorable to the non-moving party (Jennack Estate Appraisers and Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; Cach, LLC v Khan, 188 AD3d 1135, 1136 [2d Dept 2020]; Marino, 189 AD3d at 1022; Rodriguez v. Parkchester South Condominium Inc., 178 AD2d 231 [1st Dept 1991]). The moving party must establish a prima facie case showing that it is entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Idi Jewels, Inc. v Abramov, 193 AD3d 699 [2d Dept 2021]).

The proponent of a summary judgment motion makes a prima facie showing by tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Kao v Folan, 202 AD3d 878 [2d Dept 2022]). Once the moving party has demonstrated its prima facie showing, the burden then shifts to the non-moving party to demonstrate by admissible evidence the existence of a triable issue of fact necessitating a trial (Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824, 833 [2014]; Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendants argue that by installing a smoke detector in the apartment, they had fulfilled their duty to the residents of the apartment, including plaintiff. They contend that once a smoke detector was installed, the apartment residents (including plaintiff) had the responsibility for the smoke detectors' maintenance and repair (Administrative Code of City of NY § 27-2045 [b] [1]). Defendants also argue that when the smoke detectors were tested by the Fire Marshal two days after the fire, the smoke detectors were operational.

The plaintiff's apartment was used as a permanent residence and contained three bedrooms, classifying it as a Class A multiple dwelling unit under Administrative Code of the City of New York § 27-2004 (a) (8) (a). As such, the landlord was required to "[p]rovide and install one or more approved and operational smoke detecting devices in each dwelling unit in accordance with section 907.2 of the New York city building code or sections 27-978, 27-979, 27-980 and 27-981 of the 1968 building code . . ." (id. § 27-2045 [b][1][a]). Thus, the smoke detectors installed in the hallway and plaintiff's cotenant's bedroom satisfied this regulation.

However, under the NYC Building Code, the apartment was a R-2 occupancy (New York City Bldg Code [Administrative Code of City of NY, title 28, ch 7] § BC 310.4), and such a dwelling is required to also have a smoke detector in each room that is used for sleeping purposes (id. § BC 907.2.11.1). Defendants admit that they did not provide a smoke detector in plaintiff's sleeping unit, and so it is undisputed that they were not in compliance with the Building Code's requirement. Therefore, whether plaintiff (or his cotenants) maintained the smoke detectors installed in other parts of the apartment is irrelevant to defendants' failure to install the required smoke detector in plaintiff's room. Similarly, whether or not the smoke detector installed in the living room was working two days later has no bearing as to defendants' [*3]failure to install the required smoke detector in plaintiff's room.^[FN1]

As a rule, where a statute that was passed by the State legislature imposes a specific duty, the violation of that duty constitutes negligence per se (Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481 [2012]; Elliott v City of NY, 95 NY2d 730, 734 [2001]). In contrast, the violation of a municipal ordinance does not constitute negligence per se and is only evidence of possible negligence (Yenem Corp., 18 NY3d at 489; Elliot, 95 NY2d at 734; Aponte v NY City Hous. Auth., 197 AD3d 1283 [2d Dept 2021]; Rivera v 203 Chestnut Realty Corp., 173 AD3d 1085 [2d Dept 2019]).

The rationale for this distinction is twofold: First, elevating the violation of an ordinance, administrative rule or regulation to be negligence per se would substantially change the common law of the State, which should be left to the Legislature, and not to a subordinate body such as a local government or regulatory agency. Second, while an act of the Legislature is required to amend or repeal a statute, local ordinances, and administrative rules or regulations are too easily modified by small bodies such as local boards, commissions or even individuals. (Elliot 95 NY2d 730, citing Major v Waverly & Ogden, Inc., 7 NY2d 332 [1960].)

Thus, the violation a local ordinance such as the NYC Building Code would ordinarily not constitute negligence per se and would only be evidence of possible negligence. However, the Administrative Code of the City of New York, including the NYC Building Code, require further analysis. In contrast to other local ordinances, administrative rules or regulations, some of the provisions of the Administrative Code originated as statutes passed by the state Legislature, and were later recodified into the Administrative Code. These provisions may be accorded statutory treatment in tort cases, particularly when their language and purpose remain identical to the relevant state law predecessor (Yenem Corp., 18 NY3d at 490, Elliot 18 NY3d at 733). "Thus, '[i]n analyzing whether a violation of [an] Administrative Code section should be viewed as negligence per se or as some evidence of negligence, we consider the origin of [the] provision'" (Yenem Corp. 18 NY3d at 489 [2012], quoting Elliot 18 NY3d at 733).

In this case, § 907.1 of the New York City Building Code was enacted by the New York City Council in 2007 (Local Law 33 [2007] of City of NY § 11). This was part of a comprehensive overhaul of the entire Building Code, done for the first time since 1968, and included substantive changes to smoke detector requirements (Id., cf. 1968 Building Code of City of NY [Administrative Code of City of NY] 310-90 BCR [last rev 1991]). This general overhaul, including the revised smoke detector requirements, were solely an action of a local city government, and did not originate with the state Legislature. Therefore, § 907.2.11.1 of the Building Code is not accorded statutory treatment that would create per se negligence.^[FN2] [*4]However it does provide evidence of possible negligence.

Accordingly, summary judgment dismissing the action for a lack negligence by defendants would be inappropriate here, as questions of fact remain as to whether defendants were negligent. Further, there are questions of fact as to whether defendants' actions were the proximate cause of plaintiff's injuries. After review, the Court finds that defendants' remaining arguments are without merit.

As the defendants have failed to establish that there remain no material issues of fact with respect to their negligence, the motion for summary judgment is DENIED.

This constitutes the decision and order of the Court.