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Question of Fact Whether Failure to Provide Personal Ropes to Firefighters Gave Rise to a Claim Under General Municipal Law 205-a and Labor Law 27-a

The First Department, recalling and vacating its decision and order dated March 3, 2015, determined the defendants’ motion for summary judgment dismissing the plaintiff-firefighter’s action based upon General Municipal Law 205-a and Labor Law 27-a was properly denied. The action alleged the city failed to provide firefighters with personal ropes and, as a result, firefighters were forced to jump from windows without ropes (resulting in injury and death). Labor Law 27-a requires employers to provide a place of employment free from recognized hazards. A question of fact was raised whether the failure to issue personal ropes resulted from the city’s discretionary decision-making, and therefore is not subject to government-function immunity:

The motion court properly declined to dismiss the portion of plaintiffs’ General Municipal Law (GML) § 205-a claims predicated on an alleged violation of Labor Law § 27-a(3)(a)(1). The City unavailingly contends that Labor Law § 27-a(3)(a)(1) cannot provide a valid predicate for any General Municipal Law § 205-a claim. However, the statute, known as the Public Employee Safety and Health Act (PESHA), which imposes a general duty on an employer to provide employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees” (Labor Law § 27-a[3][a][1]), is sufficient since it is “a requirement found in a well-developed body of law and regulation that imposes clear duties” … .

Moreover, the City failed to “show that it did not negligently violate any relevant government provision or that, if it did, the violation did not directly or indirectly cause plaintiff’s injuries” … . There is evidence, including testimony and an investigative report, that the failure to issue personal ropes to the firefighters contributed to the injuries and deaths suffered when the firefighters jumped from windows using either no safety devices or a single rope that had been independently purchased by one of the firefighters. The City is also not entitled to dismissal of these claims pursuant to governmental function immunity, since the evidence concerning the removal of existing personal ropes in 2000, and the failure to provide new ropes in the period of more than four years from then until the fire giving rise to these claims, raises issues of fact concerning whether the absence of ropes “actually resulted from discretionary decision-making — i.e., the exercise of reasoned judgment which could typically produce different acceptable results” … . Stolowski v 234 E. 178th St. LLC, 2015 NY Slip Op 05099, 1st Dept 6-16-15

 

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