Gilbert v. Symons Corp. — 206 A.D.2d 908

Majority

p. 908

Tracy M. Gilbert, Appellant, v Symons Corporation et al., Respondents.

[614 NYS2d 838]

Order unanimously affirmed without costs. Memorandum: Plaintiff, an Ontario County Deputy Sheriff, was injured when she attempted to climb over a chain link fence while responding to a burglary alarm at defendants’ premises. We agree with Supreme Court that defendants’ motion for summary judgment dismissing the complaint seeking recovery based on common-law negligence should have been granted, but for a different reason. The negligence cause of action was barred by the firefighter’s rule (see, Cooper v City of New York, 81 NY2d 584 ).

The court properly denied plaintiff’s cross motion for partial summary judgment pursuant to General Municipal Law § 205-e. The complaint does not include the essential allegation that defendants failed to comply with a statute, ordinance, rule or regulation (see, Maisch v City of New York, 181 AD2d 467 , 469). Further, the court did not abuse its discretion in denying

p. 909

plaintiffs motion for leave to amend the complaint to assert that statutory cause of action. Neither the standard specifications of the State Department of Transportation nor section 609.1 of the State Uniform Fire Prevention and Building Code (9 NYCRR 609.1) applies to plaintiff’s assertion that defendants negligently designed, installed or maintained a fence gate that lacked an anchor or other device to prevent the gate from moving. (Appeal from Order of Supreme Court, Monroe County, Galloway, J.—Summary Judgment.) Present—Den-man, P. J., Green, Balio, Wesley and Davis, JJ.

Cases cited

Cooper v. City of New York 81 NY2d 584 N.Y. 1993-06-15 p. 908
Maisch v. City of New York 181 AD2d 467 N.Y. App. Div. 1992-03-10 at 469 p. 908

Statutes and regulations cited

General Municipal Law p. 908