A New York appeals court has held that a New York City Police Department officer injured when pursuing a suspect on foot across City land can proceed with his line-of-duty injury lawsuit against The City of New York, the owner of the land.
Sergeant Donald Mulham was chasing a suspect across a vacant City lot strewn with debris including crates, wood, sticks, and radios, when he sought to traverse a piece of plywood on the ground. His foot pierced through the plywood, causing career-ending injuries to his right knee and shoulder. Reversing the decision of the Richmond County Supreme Court, the Appellate Division, Second Department, held on October 16, 2013 that a violation of a city health code provision was sufficient basis for the lawsuit.
Mulham brought his claim against the City pursuant to General Municipal Law §205-e which allows for a cause of action for a police officer injured in the line-of-duty by another’s failure to follow “any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments.”
Sergeant Mulham claimed the City, as a landowner, had violated New York City Health Code (24 RCNY) §153.19, which requires buildings or lots be kept “free from obstructions and nuisances…and free from garbage, refuse, rubbish, litter, other offensive matter.” The City sought to have the case dismissed on summary judgment, which was initially granted by Justice Thomas Aliotta in Staten Island, saying the §205-e claim was flawed because it had to be based on a “safety consideration,” not a violation of a “sanitation provision.”
But in Mulham v. City of New York, the Second Department reversed, stating that “although, as the Supreme Court concluded, 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.” Given that the City failed to demonstrate that the plaintiff’s injury was not the result of its alleged neglect of its property, the City lost the summary judgment application on appeal.
This decision is another instance where a first responder injured in the line-of-duty has been found to be able to proceed with a claim for damages against a land owner. Though the first responder in this instance was a police officer, this rule could be equally applied to a claim by a firefighter pursuant to the similarly worded General Municipal Law § 205-a.
Mulham v City of New York, 2013 NY Slip Op 06666. Decided on October 16, 2013.