In Mulham v. City of New York, the Appellate Division, Second Department, reversed an order dismissing an NYPD Officer’s injury claim under General Municipal Law § 205-e that was predicated on a violation of New York City Health Code (24 RCNY) § 153.19.
The facts:
The plaintiff, a sergeant in the New York City Police Department, pursued a suspect on foot into a wooded, vacant lot owned by the City of New York. The lot was strewn with debris such as radios, stereos, and hundreds of red-colored crates. There was also a structure with a base measuring five feet by five feet fashioned out of, among other things, wood, sticks, fabrics, and crates. Thinking that the suspect was hiding inside the structure, the plaintiff “kind of jumped” on a flat-lying piece of plywood that formed the foundation of the structure. His right foot went through that piece of plywood, and he sustained injuries to his right knee and right shoulder. The plaintiff was later separated from his employment, having been placed on disability leave.
To support a claim under General Municipal Law § 205-e, a plaintiff law enforcement officer must identify a “statute or ordinance with which the defendant failed to comply.” Only specific statutes and ordinances, however, will trigger liability. Specifically:
To support a cause of action under General Municipal Law § 205-e, a plaintiff law enforcement officer, inter alia, must identify the statute or ordinance with which the defendant failed to comply. Liability pursuant General Municipal Law § 205-e will exist where there is negligent noncompliance with “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” (General Municipal Law § 205-e), provided that the statute, ordinance, rule, order or requirement cited is found in a “well-developed bod[y] of law and regulation” that “impose[s] clear duties”. Section 205-e must be applied ” expansively’ so as to favor recovery by police officers whenever possible”
New York City Health Code § 153.19 provides that
[t]he owner, agent, lessee, tenant, occupant or other person who manages or controls a building or lot shall be jointly and severally responsible for keeping … the premises free from obstructions and nuisances and for keeping … the … lot clean and free from garbage, refuse, rubbish, litter, other offensive matter or accumulation of water.
Defendant argued that a violation of Health Code § 153.19 could not trigger liability under General Municipal Law § 205-e, because it was a “sanitation provision” and that the cause of action must be predicated on a “safety consideration”.
The court disagreed:
Although … prohibitions against littering may be primarily directed toward aesthetic and health considerations, they also serve the purpose of keeping sidewalks and lots free of refuse that may present a tripping hazard. In any event, General Municipal Law § 205-e includes no exceptions; indeed, its language is broad, referring to any of the statutes, ordinances, rules, orders and requirements of virtually any governmental division, which are limited only to the extent that those provisions are well-developed and impose clear duties. The Legislature has frowned upon judicially crafted exceptions and defenses to General Municipal Law § 205-e, expressing its clear intent through subsequent amendments designed “to eradicate apparent confusion in the courts regarding the scope of [the statute] to ensure [that it is] applied in accordance with the original legislative intent to provide an umbrella of protection for police officers … who, in the course of their many and varied duties, are injured … by any tortfeasor who violates any relevant statute, ordinance, code, rule, regulation or requirement”. Thus, it was error for the Supreme Court … to conclude that New York City Health Code § 153.19 could not form the basis for a General Municipal Law § 205-e claim because it is a “sanitation provision.”
Therefore, “defendant failed to satisfy its prima facie burden establishing its entitlement to judgment as a matter of law dismissing the General Municipal Law § 205-e cause of action on the basis that § 153.19 could not sufficiently support it.”