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VIOLATIONS OF ORDINANCES, ADMINISTRATIVE RULES OR REGULATIONS DO NOT CONSTITUTE NEGLIGENCE PER SE, ONLY VIOLATIONS OF STATUTES CONSTITUTE NEGLIGENCE PER SE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that defendant Delco’s motion for summary judgment dismissing the negligence per se cause of action should have been granted. Negligence per se is shown by the violation of a statute, not, as here, by the violation of local ordinances, administrative rules or regulations. Plaintiffs alleged Delco, a painting contractor, caused a fire at plaintiffs’ residence. The Second Department held there was sufficient circumstantial evidence to support the causation element of the negligence cause of action:

Delco failed to eliminate triable issues of fact as to whether it performed electrical work in the area in which the fire started. Although representatives of Delco and Chestnut asserted in their deposition testimony that Delco was not hired to, and did not, perform any electrical work on the subject premises, those averments were contradicted by the deposition testimony of some of the tenant plaintiffs, who asserted that they had observed Delco performing electrical work in the apartment where the fire occurred, and that Delco was the only entity that performed repairs and other work at the premises generally, including electrical work. The foregoing circumstantial evidence set forth sufficient facts upon which Delco’s liability could be reasonably and logically inferred … . …

However, that branch of Delco’s motion which was for summary judgment dismissing the negligence per se causes of action asserted against it by the tenant plaintiffs should have been granted. “[V]iolation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability”… . In contrast, violation of local ordinances or administrative rules and regulations constitutes only evidence of negligence … . Here, the tenant plaintiffs did not allege that Delco violated any particular State statute. Rather, they only alleged violations of local laws … . Rivera v 203 Chestnut Realty Corp., 2019 NY Slip Op 04976, Second Dept 6-19-19

 

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