Opinion
105858/08.
Decided March 9, 2010.
David L. Kremen, Oshman MIrisola, LLP, New York, NY, for the plaintiff.
Michael A. Cardozo, Corporation Counsel, New York, NY, By: Ashley Hale, for the defendant.
Plaintiff, a New York City police officer, commenced the instant action to recover damages for personal injuries she allegedly sustained when a desk drawer fell on her knee at her place of employment. Defendants now move for summary judgment dismissing the complaint and all cross-claims against them. For the reasons set for the below, defendants' motion is granted.
The relevant facts are as follows. Plaintiff was sitting at her desk on May 3, 2007, when a drawer fell on her left knee. She screamed, pushed her chair back, and in doing so struck her left shoulder on the desk of another employee. She testified at her 50-h hearing that she had never had any problems with the drawer but testified at her deposition that the drawer had been hard to open in the past because it was overly full. However, at both hearings, she testified that she had never had a prior problem with the drawer being loose, off its tracks or falling.
Plaintiff brings two causes of action, one pursuant to General Municipal Law ("GML") § 205-e and one pursuant to common-law. The court will address each of these in turn.
General Municipal Law § 205-e provides that:
In addition to any other right of action or recovery under any other provision of law, in the event any accident causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, 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 the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable. . .
This provision creates an exception to the common-law rule which barred recovery for injuries sustained in the line of duty, the risks of which police officers are expected to assume as part of their job. See Galapo v City of New York, 95 NY2d 568, 573 (2000). GML § 205-e provides a cause of action for police officers where injury results from negligent failure to comply with laws, regulations and other provisions. There is a nearly identical provision which applies to firefighters, GML § 205-a and, to the extent practical, the analysis of one is applicable to the other. See Desmond v City of New York, 88 NY2d 455, 463 (2000). The Court of Appeals has held that, despite the expansive nature of GML § 205-e, a plaintiff must show noncompliance with a requirement found in a "well-developed body of law and regulation" that imposes "clear duties." See id. at 463-64.
In the instance case, plaintiff properly cites Labor Law § 27-a, the Public Employee Safety and Health Act (PESHA, the New York State equivalent of OSHA), which mandates 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. . ." as a predicate for her GML § 205-e claim. See Campbell v City of New York , 31 AD3d 594 (2nd Dept 2006) (Labor Law § 27-a a proper predicate); Balsamo v City of New York, 287 AD2d 22 (2nd Dept 2001) (same); see also Fisher v City of New York , 48 AD3d 303 (1st Dept 2008); (Labor Law § 27-a is a proper predicate); but see Link v City of New York , 34 AD3d 757 (2nd Dept 2006) (Labor Law § 27-a not a proper predicate).
The arguments made by defendants as to why Labor Law § 27-a cannot be a proper predicate for a GML § 205-e claim are without merit. Courts have repeatedly held that Labor Law § 27-a is a proper predicate and rejected the argument that it is too general a provision. See Fisher, 48 AD3d 303 (1st Dept 2008); Campbell, 31 AD3d 594; Balsamo, 287 AD2d 22; but see Link, 34 AD3d 757. The decision relied upon by defendants, Misicki v Caradonna , 12 NY3d 511 (2009), is inapposite in that in Misicki, the court addresses what statutes are proper predicates for Labor law § 241(6) claims, not GML § 205 claims. Similarly, defendants' argument that Labor Law § 27-a cannot be a predicate for a GML § 205-e claim because Labor Law § 27-a does not provide for a private right of action is unavailing because courts have repeatedly found, despite this fact, that Labor Law § 27-a can be a proper predicate for a GML § 205-e claim. See Fisher, 48 AD3d 303 (1st Dept 2008); Campbell, 31 AD3d 594; Balsamo, 287 AD2d 22; but see Link, 34 AD3d 757.
Although plaintiff has a proper statutory predicate for her GML § 205-e claim, her claim is still insufficient as a matter of law as she cannot establish notice. The First Department has held that notice of the statutory or regulatory violation is a prerequisite for recovery under GML § 205-e. See Lusenskas v Axelrod, 183 AD2d 244, 248-49 (1st Dept 1992). "Where . . . a defendant could not have known of the existence of a condition which constitutes a violation of a statute or regulation concerning the safety of the premises, the requisite culpability for the applicable violation is lacking, and plaintiff has not met his burden for the recovery of statutory damages." Lusenskas, 183 AD2d at 248-49. In the instance case, defendants could not have known that the desk drawer was off its tracks or was likely to fall. Plaintiff herself had never had any prior problems with the desk drawer being loose or off its tracks and no one had ever reported any problems with the drawer. Defendants have shown that they had no notice, actual or constructive, of any problem with the desk drawer that could lead it to fall and plaintiff has failed to raise a triable issue of fact in response. Accordingly, defendants are entitled to summary judgment dismissing plaintiff's GML § 205-e claim.
The court now turns to plaintiff's common-law negligence claim. Although a police officer's common-law negligence claim is barred by the "firefighter's rule" when his injuries occurred because of his duties, such a claim is not barred if those duties "merely furnished the occasion for his accident but did not heighten the risk of injury." Braxton v City of Yonkers, 278 AD2d 265 (2nd Dept 2000); See Zanghi v Niagara Frontier Transportation Commission, 85 NY2d 423 (1995). In the instant case, plaintiff was not injured while chasing a suspect or engaging in any other work specific to her duties as a police officer. She was injured while at her desk at her office. This type of accident is akin to any accident in which an employee is injured at his place of employment. In this case, plaintiff's duties as a police officer did not heighten the risk to her of being injured by a falling desk drawer.
To make out a prima facie case of negligence in cases involving a defective condition, a plaintiff must demonstrate either that the defendant created the alleged hazardous condition or that the defendant had actual or constructive notice of the defective condition and failed to correct it. See Kesselman, 29 AD3d 302. As noted above, plaintiff has failed to raise a triable issue of fact as to whether defendants had notice of any defect with the drawer. Moreover, plaintiff does not argue that defendants created any problem with the drawer.
However, plaintiff also argues that the theory of res ipsa loquitur applies. To demonstrate res ipsa loquitur, the plaintiff must establish that "(1) the accident is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality causing the accident was within defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution by plaintiff." Pavon v Rudin, 254 AD2d 143 (1st Dept 1998). In Pavon, the First Department held that plaintiff established that res ipsa loquitur applied when a door fell because of a problem with the door hinge. The Pavon court held that, although the public used the door at issue, "the appropriate target of inquiry is whether the broken component itself was generally handled by the public." Id. at 146. Because the door hinge at issue could not be easily reached, the court found that it was highly unlikely that an employee or member of the public could have touched it. See id.
In the instant case, plaintiff fails to establish the first two prongs of this test. A drawer can slide off its tracks as someone is opening it normally, in the absence of negligence. In addition, the drawer was not exclusively within the defendant's control. It was actually primarily within plaintiff's control, as it was a drawer in her desk. Moreover, unlike in Pavon where the public and other employees were unlikely to have had access to a door hinge which was hard to reach, the desk drawer in this case could easily have been handled by other employees and even members of the public. Thus, res ipsa loquitur does not apply. Because plaintiff fails to raise an issue of triable fact as to whether defendants had notice of any problem with the drawer and fails to show that the theory of res ipsa loquitur applies, defendants are entitled to have plaintiff's common-law negligence claim dismissed.
Accordingly, defendants' motion for summary judgment is granted and plaintiff's complaint is dismissed. This constitutes the decision and order of the court.