Before the Court is the plaintiff's motion for summary judgment and defendant City of Buffalo's (hereafter "City") cross-motion for summary judgment relating to the cause of action asserted by the estate of Jason Arno (sometimes referred to as "decedent plaintiff" or "firefighter Arno") who died during the performance of his duties for the City while inside the scene of a horrific blaze at a Main Street commercial building on March 1, 2023 (sometimes referred to as the "fire" or the "incident"). The cause of action brought against the City is premised on the statutory right of firefighters under General Municipal Law Section 205-a to pursue recovery for injuries and/or death sustained during the performance of their duties.^[FN1]

The full submissions of all papers in support of and in opposition to the aforesaid motions are filed and numerically designated in the NYSCEF Docket as follows:

1. Plaintiff's motion (Dkt. No. 56) and supporting affirmations of counsel and expert witnesses (former supervisory members of the BFD) with accompanying exhibits (Dkt. Nos. 57-70 and 86-91 [the last numerically referenced filings being reply papers to the opposing and cross-motion papers filed by the City]); and

2. Defendant City's cross-motion (Dkt. No. 71) and supporting affirmations of counsel and members of the BFD (supervisory co-workers of firefighter Arno) who commanded the BFD's response to the fire, including the orders issued to enter and exit the fire scene (Dkt. Nos. 72-85).

The underlying facts relating to the timeline associated with the fire and the Buffalo Fire Department's ("BFD") response beginning with the initial emergency call to the BFD up through the time firefighter Arno's body was recovered from the fire scene are not in dispute. See Dkt. No. 57, Affirmation of plaintiff's counsel, paragraphs, 10, 11 and 17 ^[FN2] and Dkt. No. 73, Affirmation of defendant's counsel, para. 13 (incorporates by reference all the exhibits submitted and filed by plaintiff in support of her motion). The essence of the events leading up to firefighter Arno's fateful exposure to the fire stems from the actions undertaken by the BFD for approximately 20 minutes from the time of initial arrival at the fire scene until the time decedent plaintiff was determined to have become a victim of the fire relative to, (i) the initial examination of the fire scene to assess and determine the course of responsive action to be taken, (ii) the supervisory oversight of the execution of the response relative to the ordering of entry and exiting of the fire in accordance with national regulatory and BFD policies, practices and procedures, and (iii) the course of actions and communications between firefighter Arno and the outside command officers before the tragic ending of this incident.

There are several defenses to elements of the claim(s) raised in the pleadings and advocated in the motions that fall within the scope of the substantive and procedural status of the action which should be addressed preliminarily.

The "Eighth Defense" alleges (and its companion section of the cross-motion, Dkt. No. 72, captioned as Section VII, para. 147) argues that the plaintiff, Sarah-Elizabeth L. Tierney, as Administratrix of the Estate of Jason D. Arno, "lacks standing to assert the alleged claims and not a proper party to this action," on the grounds that the marriage certificate issued to the plaintiff and firefighter Arno by the "Universal Life Church" did not comply with Domestic [*2]Relations Law Section 11. In reply, plaintiff filed a copy of the Decree and Letters of Administration issued to the plaintiff by the Erie County Surrogate's Court (Dkt. No. 91). The defense and motion are misplaced, moot as a matter of law, and denied/dismissed. Regardless of the marital status between the plaintiff and firefighter Arno, the plaintiff was a legally eligible party to file a petition for the administration of firefighter Arno's estate (SCPA § 1002) and found by the Surrogate's Court to be entitled to the issuance of the Decree and Letters affirmatively empowering and authorizing her to pursue "any wrongful death and related action(s) or proceeding(s)," subject to the conditions set forth therein. Additionally, even if the marital status issue was applicable, the facial factual sufficiency and legitimacy of the marital relationship was adequately shown, and the City's motion to dismiss on those grounds would be denied. See Oswald v. Oswald, 107 AD3d 45 (3rd Dept. 2013), declining to follow the Second Department's holding in Ranieri v. Ranieri, 146 AD2d 34 (2nd Dept. 1989); see also, L.F. v. M.A., 83 Misc 3d 1287 (Sup Ct, NY Cnty 2024) (unique religious marriage ceremony held to be validly solemnized without license).

The "Twelfth Defense" alleges that plaintiff "failed" to comply with a condition precedent to the commencement of this action under Article Four of the General Municipal Law (i.e., filing of a timely and sufficiently composed [in form and content] notice of claim pursuant to GML § 50-e, et seq). In its cross-motion the City contends that the notice of claim failed to include any reference to a violation of Labor Law § 27-a as one of the predicate grounds in support of the plaintiff's cause of action under GML § 205-a. Dkt. No. 72, Section III (ii), para. 86. In response, plaintiff recited that Labor Law § 27-a was included in the notice of claim in support of the predicate liability claim made therein under GML § 205-a. The notice of claim (Dkt. No. 58) does in fact include a specific reference to Labor Law § 27-a (infra, para.5). Defendant City's motion on this defense is denied and dismissed.

The "Sixteenth Defense" alleges failure to name a necessary party (not raised or advanced as grounds in opposition to plaintiff's motion or in support of defendant's cross-motion) nor otherwise ascertainable as having any applicability and thus is deemed waived and dismissed.

The "Eighteenth Defense" alleges (and its companion section of the cross-motion, miscaptioned as duplicate Section VII, para. 148) argues, that the Buffalo Fire Department is an administrative arm of the City and not a proper party to the action. This issue has been recently addressed and conclusively ruled upon by the Appellate Division, Fourth Department on the City's behalf, and the motion is GRANTED, to the extent that the "Buffalo Fire Department" as a separate stand-alone defendant from the defendant City is dismissed and removed from the caption of this action. Taylor v. City of Buffalo, 229 AD3d 1125 (4th Dept. 2024).

Plaintiff's claim against the City is the 10th cause of action set forth in the amended complaint. It is straightforward and entirely presented pursuant to General Municipal Law section 205-a, supra Fn 2, which was adopted by the Legislature to overrule the preclusion of any work-related injuries or death claims sustained by firefighters, commonly known as the "firefighter's rule." Santangelo v State, 71 NY2d 393 (1988). The fundamental essence of a section 205-a cause of action is a showing "of any neglect, omission, willful or culpable [*3]negligence . . . in failing 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 . . . " See Cusumano v City of New York, 15 NY3d 319 (2010). To sustain the cause of action there must be proof of negligent non-compliance of an underlying (nee predicate) "well-developed body of law or regulation." Williams v City of New York, 2 NY3d 352 (2004).

Though well-known and already operatively recited by the parties in their papers it is necessary to set forth the requisite legal threshold that must be shown and met to satisfy the burden of proof by each movant on a motion for summary judgment. The black letter law on a motion for summary judgment is plain, direct and clear. The moving party must submit sufficient evidence in admissible form to eliminate all questions of material fact in favor of showing its prima facie entitlement to judgment as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320 (1986); Winegrad v New York Univ. Med. Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853)." Alvarez at 324. See also, Keem v Ford Motor Company, et al, 227 AD3d 1526 (4th Dept. 2024). On a motion for summary judgment the threshold principle imposed on the court is to respect that "issue identification/finding, not issue resolution" is the first order of business and "(t)his drastic remedy should not be granted where there is any doubt as to the existence of such issues," Sillman v Twentieth Century-Fox Film Corp. at 404, and the accompanying dominant directive to the Court is that it must view the record evidence in the light most favorable to the nonmoving party. ("On a motion for summary judgment, facts must be viewed "in the light most favorable to the non-moving party [internal citation omitted]," Vega v Restani Const. Corp., 18 NY3d 499, 503, 965 N.E.2d 240, 242 [2012]); accord Thygesen v North Bailey Volunteer Fire Company, Inc., 151 AD3d 1708 [4th Dept. 2017]).

The bulk of the remaining extensive and sweepingly dissected factual record and exemplary legal arguments made by both parties in their respective submissions centers on the sustainability of plaintiff's claim that the defendant City vis-à-vis the alleged negligent non-compliance of any applicable national, state and/or local policies, procedures and related standards of firefighting protocol by its management and supervisory staff of the BFD leading up to and during the incident on March 1, 2023 can be found liable as contended by the plaintiff, or alternatively determined to be free from any and all liability as contended by the defendant City, under GML § 205-a as a matter of law.

The plaintiff made a significant submission of papers in admissible form to satisfy its prima facie burden of proof in support of her § 205-a cause of action against the City. The submissions made on plaintiff's behalf qualitatively established the viability of a negligence claim against the BFD (as an agency arm of the defendant City) under GML § 205-a based on threshold proof of breaches of Labor Law § 27-a, Civil Service Law § 61 (2), and multiple federal rules and regulations under the Code of Federal Regulations ("CFR"), most dominantly on the [*4]alleged violation of the "two-in, two-out" rule (29 CFR 1910.134 [g] [4) (i]) relating to the standard practice and protocol requiring the employer (here the BFD) to deploy "[a]t least two employees (to) enter the IDLH (an interior structural fire) atmosphere and remain in visual or voice contact with another at all times." The other federal and state rules (29 CFR 2910.156 [c][1] and 19 NYCRR 426.7) were also sufficiently presented for consideration as predicate violation(s) to maintain a GML § 27-a cause of action.

Extensive and well-digested case law supports a showing of an alleged violation of Labor Law § 27-a as providing a sufficient predicate to maintain a cause of action under GML § 205-a. In Gammons v. City of New York, 24 NY3d 562 (2014), the Court of Appeals set forth an exhaustive and thorough historical summary of the legislative evolution establishing the adoption and recognition of a violation of Labor Law 27-a as a predicate for a cause of action by a police officer under General Municipal Law §205-e (the companion to the firefighters injury claim provision under General Municipal 205-a); and the authority of Gammons has been expressly adopted in firefighter cases. See; Shea v New York City Economic Development Corp., 161 AD3d 803, 805 (1st Dept 2018) ("(t)his statute [Labor Law 27-a] may serve as a predicate for a cause of action alleging a violation of General Municipal Law § 205-a" (citing Gammons); accord Stolowski v 234 East 174th Street, LLC and City of New York, 129 AD3d 512, 513 (1st Dept 2015), reaffirming that "Labor Law §27-a [3] [a] [1], is sufficient (to support a GML 205-a cause of action) since it is a requirement found in a well-developed body of law and regulation that imposes clear duties" citing and quoting Williams v City of New York, 2 NY3d 352, 364 (internal quotation marks omitted).

The same applies for the showing of an alleged violation of state and/or federal regulations being recognized as a "well-developed body of law" to serve as a predicate to maintain a § 205-a cause of action. Fisher v City of New York, 48 AD3d 303 (1st Dept 2008); Donna Prince L. v Waters, 48 AD3d 1137 (4th Dept 2008); McGovern v City of New York, 294 AD2d 148 (2002).

The applicable law and the proof proffered by the plaintiff, including the submission of two "expert affirmations" from former members of the BFD ^[FN3] create a sustainable threshold of [*5]prima facie sufficiency in favor of plaintiff's claim. The defendant City's opposing papers, however, create genuine questions of material fact on all the underlying predicate bases for liability (regulatory and statutory), both in the form of layperson and comparable "expert" witness testimonial proof from the defendant's professional personnel. It is well-established that viewing the facts in the light most favorable to the nonmoving party (in this case that travels in both directions), if any material issue of fact, or a credibility assessment of the conflicting witness testimony is in play and open to being heard and determined by the finder of fact at trial, the motion fails. Vega v. Restani Constr. Corp., id.

The compendium of moving and opposing papers going in both directions forecloses summary judgment on this issue.^[FN4] The same analysis applies to the dispositional treatment that must be given to the strenuously contended claim and defense raised with respect to the alleged violation of Civil Service Law § 61 (2) as a predicate for plaintiff's Labor Law § 205-a cause of action. See Caruso v Mayor of the Village of South Glens Falls, 278 AD2d 608 [3rd Dept 2000], holding that a "de facto out-of-work" assignment could be viewed as constituting a violation of Civil Service Law § 61 (2), and City of Newburgh v Potter, 168 AD2d 779 (3rd Dept 1990), holding that certain provisions within the terms and conditions of the collective bargaining agreement between the plaintiff city and the defendant firefighters union violated the "clear imperative of Civil Service Law § 61 (2)." Accordingly, the motions made by each party with respect to these issues being decided as a matter of law are denied.

In addition to the 8th, 12th, and 16th defenses which the Court preliminarily treated and DISMISSED, the record further dictates the following defenses to be found as inapposite and/or [*6]abjectly inapplicable or deficiently supportable as a matter of law to the facts and circumstances at the heart of this action and should be DISMISSED as follows:

(i) The "special relationship" doctrine (pleaded as the "Thirteenth Defense"). Based on the full-time employment relationship of the decedent plaintiff with the defendant City, there is a distinct "special relationship" between the parties that negates the City's defense under the theory that municipalities are immunized from liability alleged to arise from an incident/occurrence that a recognized (nee "protected") class of claimant(s) alleges the municipality assumed a duty or should have reasonably assumed a duty to perform, intervene and/or pre-emptively prevent the incident/occurrence from happening. As noted by defendant City, "[t]his special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation, Tara N.P. v. W. Suffolk Bd. of Co-op. Educ. Servs., 131 AD3d 517, 519 (2nd Dept., 2015)." See Dkt. No. 72, para. 136. In the present case, plaintiff's status as a statutorily protected employee of the City indisputably satisfies prong one of the actionable standards for liability to be claimed against the City on the decedent plaintiff's behalf.^[FN5]

(ii) The "emergency doctrine" (pleaded as the "Seventeenth Defense"). The entire essence of all the known, expected and fundamental work, duties and services performed by all fire departments and their dedicated and courageous members is incontrovertibly entwined in knowing the risks of responding to certain regrettable catastrophes of daily life with the community at large. The type of occasion and occurrence arising from when "an actor is faced with a sudden and unexpected circumstance" (which is at the heart of the application of the "emergency doctrine" see, Galit v Nelk, 240 AD3d 1286, 4th Dept decided 7/25/2025), is entirely lacking here. Going to and responding to a fire is the type of known and expected event that firefighters accept as their public duty with the correlating expectation that the overarching and supervisory services being directed and overseen by those in charge of commanding the performance of their services are being properly performed in accordance with well-established rules, policies, practices and procedures. This is not an "emergency doctrine" case.

(iii) For the reasons set forth above in furtherance of the denial of defendant City's cross-motion to dismiss the plaintiff's cause of action pursuant to GML § 205-a as a matter of pure statutory nonviability based on the "fireman's rule" (pleaded as the "Twentieth Defense") and the Twenty-First Defense pleading the application of General Obligations Law § 11-106 are dismissed. See Galapo v. City of New York, 95 NY2d 568 (2000).^[FN6]

(iv) The defense of General Municipal Law § 207 (pleaded as the "Sixth Defense") as an exclusive remedy and bar to plaintiff's right to bring this action based on defendant City's claim of decedent plaintiff's receipt of worker's compensation benefits or any other disability benefits must also be dismissed. Firstly, there is no submission in the record of any proof whatsoever that firefighter Arno received any workers' compensation or other disability benefits (indeed it is incomprehensible that any such benefits were ever available to be paid in the first instance under the circumstances of this case because there was no "disability" at all), and plaintiff's undisputed representation to the Court that the City does not provide workers' compensation benefits to its firefighters stands undenied on the record (see Dkt. No. 91, para 14). Therefore, the City's postulating basis for the defense is factually non-existent and [*7]vitiates defendant City's reliance on the ruling issued by the Court of Appeals in Weiner v. City of New York, 19 NY3d 852 (2012). Moreover, GML § 207-c (the companion provision to the one adopted for firefighters under GML § 207-a) has been found by the Court of Appeals to be inapplicable to a police officer's on-duty injury claim under GML § 205-e (the companion provision to GML §205-a) when the municipal employer has not provided coverage pursuant to the Workers' Compensation Law. Matter of Diegelman v City of Buffalo, 28 NY3d 231 (2016), and the issue under Diegelman was applied to a firefighter claim for on-duty injury in Lockwood v City of Yonkers, 57 Misc 3d 728 (Sup Ct Westchester Cnty, 2017), rev'd on other grounds, 179 AD3d 688 (2nd Dept 2020).

The totality of the record placed before the Court, including the conflicting affirmations and sworn deposition testimony of proponents and opponents from each side of the action, including expert witnesses, creates conflict on multiple issues of material fact in evaluating the underlayment of events that forms the basis for the plaintiff's claims of negligence under the statutory right to seek compensatory redress and the City's remaining defenses in opposition thereto. Accordingly, the motions for summary judgment made by both parties on the remaining grounds raised in the pleadings and motion filings must be and hereby are collectively DENIED.

Submit order accordingly on notice pursuant to Uniform Rule 202.48.