The following papers numbered 1 to 21 were read on (Seq. No. 1) plaintiff’s motion for leave to amend his complaint and bill of particulars, and (Seq. No. 2) defendant’s cross-motion to dismiss the complaint pursuant to CPLR 3211: PAPERS NUMBERED Notice of Motion / Affirmation (Del Vecchio) / Exhibits A — K 1-13 Notice of Cross-Motion / Affirmation (Estrada) / Exhibits A — D / Memorandum of Law 14-20 Affirmation in Opposition and in Further Support (Del Vecchio) 21 Reply Memorandum 221 DECISION AND ORDER Upon the foregoing papers, both motions are granted in part and denied in part. This action for personal injuries arises out of an accident that occurred on January 16, 2019 while plaintiff, a police officer, was at a Department of Public Works (DPW) garage to refuel his police vehicle. While waiting for his vehicle to be refueled, plaintiff left the vehicle to speak with another police officer who was present at the location. As he moved to speak with the other officer, plaintiff leaned against an inverted 55-gallon yellow plastic drum, which slid forward, causing plaintiff to lose his balance. As he attempted to regain his balance, plaintiff stepped forward with his left foot, and his left leg fell into an uncovered manhole, causing his right foot to slide out behind him and causing plaintiff to land on his hands. Plaintiff testified at his deposition that the date of the incident was the first time he had seen this yellow drum present in the vicinity of the fuel pumps, and he did not have any understanding as to why the drum was there (Exh. H at 30-31). Gerald Norman, a DPW employee, testified at his deposition that there was “a manhole cover that needed work done to it and that barrel was used as a barricade” (Exh. I at 10). Plaintiff commenced the action by filing a Summons and Verified Complaint on May 26, 2020, asserting causes of action for common law negligence and violations of Labor Law §§200, 240 and 241. After the completion of discovery, Note of Issue was filed on September 25, 2023. By Notice of Motion filed on May 15, 2024, plaintiff seeks an order pursuant to CPLR 3025(b) granting leave to amend the complaint to add causes of action pursuant to General Municipal Law §205-e and General Obligations Law §11-106, and to amend his bill of particulars to assert the predicate violations of the Property Maintenance Code in support of the GML §205-e claim. Defendant opposes the motion and, by Notice of Cross-Motion filed on June 3, 2024, seeks an order dismissing the complaint pursuant to CPLR 3211(a)(7). Plaintiff contends that leave to amend should be granted, as the proposed amendments are not palpably insufficient or patently devoid of merit, and the proposed amendments will not cause any surprise or prejudice to defendant, as they are based on the same facts pleaded in the original complaint. Plaintiff submits that his proposed amendment states a viable GML §205-e claim based on alleged violations of the Property Maintenance Code in connection with the uncovered manhole (Del Veccho Aff. at 32). Plaintiff further submits that his proposed amendment states a viable GOL §11-106 claim, which is a codification of the common law negligence claim providing a statutory cause of action for police officers. Defendant does not claim any surprise or prejudice, but contends that the proposed amendments are palpably insufficient and patently devoid of merit, and thus that leave to amend should be denied. Specifically, defendant asserts that the GML §205-e claim is not viable because plaintiff failed to plead facts from which it may be inferred that defendant’s negligence directly or indirectly caused his injuries. Defendant submits that plaintiff’s pleadings indicate that plaintiff’s own action in leaning against the plastic drum was the sole proximate cause of the accident, and fail to establish that the presence of the plastic drum constituted a hazardous condition in violation of the Property Maintenance Code. Defendant contends that the proposed GOL §11-106 claim is palpably insufficient, as that section does not permit suits against a police officer’s employer. Defendant further contends that the complaint should be dismissed, as plaintiff’s common law negligence claim is barred by the firefighter doctrine, which bars recovery for injuries suffered in the line of duty “resulting from risks associated with the particular dangers inherent in that type of employment” (Defendant’s Memorandum of Law at 7, quoting Spence v. City of New York, 202 AD3d 1124, 1125 [2d Dept 2022]). Defendant further contends that plaintiff’s Labor Law claims must be dismissed because plaintiff does not fall under the class of persons entitled to protection, as he was not working on a “building or structure” at the time of the accident (id. at 8, quoting Auriemma v. Brooklyn Hosp. Ctr., 204 AD3d 969, 970 [2d Dept 2022]). Plaintiff does not oppose the branch of the cross-motion seeking dismissal of his Labor Law Claims. However, plaintiff submits that the balance of the cross-motion should be denied. Plaintiff asserts that the firefighter doctrine does not apply to his common law negligence claim because his accident did not arise from a risk inherent in his employment. Plaintiff contends that the accident, which occurred when he stepped into an uncovered and improperly guarded manhole, “was not one of the inherent risks of police work” and that his presence at the DPW garage “merely furnished the occasion for his injury” (Del Vecchio Aff. in Opp. at 21). The Court has fully considered the submissions of the parties. Leave to Amend The branch of the motion seeking leave to amend the complaint to assert a cause of action pursuant to GML §205-e is granted. “A party may amend his or her pleading…at any time by leave of court…. Leave shall be freely given upon such terms as may be just….” (CPLR 3025[b]). “A court hearing a motion for leave to amend will not examine the merits of the proposed amendment ‘unless the insufficiency or lack of merit is clear and free from doubt…In cases where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied” (Ricca v. Valenti, 24 AD3d 647, 648 [2d Dept 2005], quoting Norman v. Ferrara, 107 AD2d 739, 740 [2d Dept 1985]). A police officer injured as a direct or indirect result of “any neglect, omission, willful or culpable negligence of any person or persons 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” may assert a claim for damages pursuant to GML §205-e. Plaintiff’s proposed 205-e cause of action is based on defendant’s alleged failure to comply with provisions of the Property Maintenance Code requiring sidewalks, walkways, driveways, parking spaces and similar spaces to be kept free from hazardous conditions. Defendant’s contention that the presence of the inverted plastic drum over an otherwise open manhole does not constitute a hazardous condition, and the assertion that plaintiff’s act of leaning against the drum was the sole proximate cause of the accident, are unavailing for the purpose of opposing a motion for leave to amend. “No evidentiary showing of merit is required under CPLR 3025(b)” (Lucido v. Mancuso, 49 AD3d 220, 229 [2d Dept 2008]). Whether the placement of a plastic drum over an open manhole constitutes a hazardous condition and whether plaintiff’s act in leaning against the drum was the sole proximate cause of the accident are evidentiary matters to be determined by the trier of fact. The allegations in the proposed amendment are sufficient to state a cause of action pursuant to GML §205-e, and defendant has not asserted any surprise or prejudice (see Sclafani v. City of New York, 271 AD2d 430 [2d Dept 2000]. Accordingly, the branch of the motion seeking leave to amend the complaint to add a cause of action pursuant to GML §205-e is granted. However, the branch of the motion seeking leave to amend the complaint to add a cause of action pursuant to GOL §11-106 is denied, as the proposed amendment is patently devoid of merit. Although GOL §11-106 “allows police officers to bring tort claims for most work injuries that occur in the line of duty,” that section “maintains the common-law bar on tort claims against the police officer’s…employer” (Rodriguez v. County of Rockland, 43 AD3d 1026, 1028 [2d Dept 2007] [internal quotation marks and citations omitted]). As it is undisputed that defendant was plaintiff’s employer at the time of the accident, a GOL §11-106 claim is not viable. Cross-Motion to Dismiss The branch of the cross-motion seeking dismissal of plaintiff’s Labor Law claims is granted as unopposed. The Court notes that plaintiff’s proposed amended complaint, submitted on the motion for leave to amend (Plaintiff Exh. A, NYSCEF Doc. # 25) omits such claims. The branch of the cross-motion seeking dismissal of plaintiff’s common law negligence claim on the ground that it is barred by the firefighter rule is denied.2 “The firefighter rule provides that police and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment” (Spence v. City of New York, 202 AD3d 1124, 1125 [2d Dept 2022]). Contrary to defendant’s contention, the subject accident was not related to the dangers inherent in police work. Rather, plaintiff’s duties, which included having his police vehicle refueled at the end of his shift, “merely furnished the occasion for his accident but did not heighten the risk of injury” (Delio v. City of New York, 8 AD3d 325, 326 [2d Dept 2004] [injuries sustained when fellow officer closed door of patrol car on plaintiff's hand during traffic stop]; see also Olson v. City of New York, 233 AD2d 488 [2d Dept 1996] [injuries sustained when firefighter returning to firehouse from alarm stepped off fire truck and fell into pothole in firehouse driveway]). Accordingly, it is hereby ORDERED that the branch of plaintiff’s motion (Seq. No. 1) seeking leave to amend the complaint to assert a cause of action pursuant to General Municipal Law §205-e is granted; and it is further ORDERED that the branch of plaintiff’s motion (Seq. No. 1) seeking leave to amend the complaint to assert a cause of action pursuant to General Obligations Law §11-106 is denied, and the proposed Amended Verified Complaint annexed to plaintiff’s papers as Exhibit A (NYSCEF Doc. # 25) be and hereby is deemed modified accordingly to remove therefrom the Third Cause of Action; and it is further ORDERED that the proposed Amended Verified Complaint, annexed to plaintiff’s moving papers as Exhibit A (NYSCEF Doc. # 25), as so modified, be and hereby is deemed filed and duly served upon the defendant as of the date of entry of this Decision and Order; and it is further ORDERED that the branch of defendant’s cross-motion (Seq. No. 2) seeking dismissal of plaintiff’s claims pursuant to Labor Law §§200, 240(1) and 241(6) is granted; and it is further ORDERED that the branch of defendant’s cross-motion (Seq. No. 2) seeking dismissal of plaintiff’s common law negligence cause of action is denied; and it is further ORDERED that, within ten (10) days of the date hereof, plaintiff shall serve a copy of this Decision and Order, with notice of entry, upon defendant, and shall file proof of said service via NYSCEF; and it is further ORDERED that the parties shall appear for settlement conference on October 9, 2024 at 10:00 a.m. in Courtroom 1601. The foregoing constitutes the Decision and Order of the Court. Dated: September 9, 2024
