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Williams v. City of New York

2 N.Y. 352 Court N.Y. Decision date 2004-05-11 English

Delivered by Read, J.

Contents

Majority

p. 352
[811 NE2d 1103, 779 NYS2d 449]
Bertha Williams, Individually and as Mother and Natural Guardian of Tennille Williams, an Infant, et al., Appellants, v City of New York, Respondent, et al., Defendants. Elizabeth M. McCormick, Individually and as Executrix of John F. McCormick, Deceased, Appellant, v City of New York et al., Respondents.
Argued March 30, 2004;
decided May 11, 2004
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POINTS OF COUNSEL
Queller Fisher Dienst Serrins Washor & Kool LLP, New York City (Richard A. Dienst and Barry Washor of counsel), and Seligson Rothman & Rothman (Martin S. Rothman and Alyne
I. Diamond of counsel), for appellants in the first above-entitled action. I. The City of New York’s radical alteration of the locker room into a makeshift detention cell gravely increased and aggravated the “recognized hazards” in decedents’ “employment and [ ] place of employment” and failed to “provide reasonable and adequate protection to the[ir] lives [and] safety” (Labor Law § 27-a [3] [a] [1]) thereby rendering viable plaintiffs’ General Municipal Law § 205-e actions against the City. (Matter of Asman v Ambach, 64 NY2d 989 ; Balsamo v City of New York, 287 AD2d 22 ; Hartnett v New York City Tr. Auth., 86 NY2d 438 ; Gonzalez v Iocovello, 93 NY2d 539 ; Schiavone v City of New York, 92 NY2d 308 ; Ruotolo v State of New York, 83 NY2d 248 ; Giuffrida v Citibank Corp., 100 NY2d 72 ; Criscione v City of New York, 97 NY2d 152 ; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577 ; Castro v United Container Mach. Group, 96 NY2d 398 .) II. Administrative Code of the City of New York §§ 27-127 and 27-128 are firm predicates under the law and the facts for the verdict rendered. (Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 ; Chaffee v Union Dry Dock Co., 68 App Div 578 ; Lombardi v Stout, 80 NY2d 290 ; Farrington v City of New York, 240 AD2d 697 ; Corbisiero v City of New York, 240 AD2d 694 ; Sergio v Benjolo, 168 AD2d 235 ; Grawin v Tudor Place Assoc., 260 AD2d 314 ; O’Grady v New York City Hous. Auth., 259 AD2d 442 ; Giuffrida v Citibank Corp., 100 NY2d 72 ; Simons v City of New York, 252 AD2d 451 .)
Michael A. Cardozo, Corporation Counsel, New York City {Barry P. Schwartz and Leonard Koerner of counsel), for respondent in the first above-entitled action.
I. Assuming arguendo, that Labor Law § 27-a (3) (a) (1) and Administrative Code of the City of New York §§ 27-127 and 27-128 were even factually applicable here, plaintiffs nonetheless failed to make out a prima facie showing as to their violation. This is because the safety of the Queens County District Attorney Detective Squad detectives in the securing and detaining of prisoners was readily and easily ensured separately by handcuffing both of a prisoner’s hands to the pipe installed to the locker room’s center table for that purpose, and by the other available and simple procedures
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or practices of (a) not leaving a prisoner alone there; (b) performing a frisk before leaving the premises with the prisoner; (c) either rear-handcuffing or front-handcuffing with a security belt, prior to placing the prisoner in a vehicle’s back seat; and (d) thereafter having a detective sit next to that individual. (Hartnett v New York City Tr. Auth., 86 NY2d 438 ; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v New York State Indus. Bd. of Appeals, 103 AD2d 489 ; National Realty & Constr. Co. v Occupational Safety & Health Review Commn., 489 F2d 1257 ; Magma Copper Co. v Marshall, 608 F2d 373 ; General Dynamics Corp. v Occupational Safety & Health Review Commn., 599 F2d 453 ; Usery v Marquette Cement Mfg. Co., 568 F2d 902 ; Getty Oil Co. v Occupational Safety & Health Review Commn., 530 F2d 1143 ; Brennan v Occupational Safety & Health Review Commn., 502 F2d 946 ; REA Express, Inc. v Brennan, 495 F2d 822 ; Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383 .) II. At any rate, the Appellate Division majority correctly ruled that, as a matter of law, these cases did not fall within the purview of Labor Law § 27-a (3) (a) (1). The decision by Queens County District Attorney Detective Squad commander Lieutenant Franceschini, made in consultation with and on the recommendation of his squad’s two supervising sergeants, to install the pipe for prisoner detention was an exercise of reasoned professional judgment and discretion as to which the statute was not intended to apply. That aside, both the legislative history of section 27-a (3) (a) (1) and common sense in light of the inherent as well as unpredictable dangerous nature of police duties, overwhelmingly demonstrate that the statute only encompasses physical and environmental hazards in the workplace and not the danger at issue here regarding the intentional infliction of harm. (Cosgriff v City of New York, 93 NY2d 539 ; Balsamo v City of New York, 287 AD2d 22 ; Maiello v City of New York, 273 AD2d 284 ; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233 ; McKechnie v New York City Tr. Police Dept., 130 AD2d 466 ; Lauer v City of New York, 95 NY2d 95 ; Mon v City of New York, 78 NY2d 309 ; McCormack v City of New York, 80 NY2d 808 ; Harland Enters, v Commander Oil Corp., 64 NY2d 708 ; Saarinen v Kerr, 84 NY2d 494 .) III. All five Appellate Division Justices properly held that, as a matter of law, the Administrative Code of the City of New York §§ 27-127 and 27-128 requirement that owners keep their buildings “safe,” does not encompass these lawsuits. This is because (a) the liability sought to be imposed is not based on harm which occurred on
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the subject premises; (b) the harm, in any event, did not arise from a structural or design defect or any other construction-related concern; and (c) those types of defects in no way include plaintiffs’ theory at trial that was, by contrast, predicated only on how the Queens County District Attorney Detective Squad locker room was used and the alleged transient condition of a lock on one of its lockers. (Gordon v American Museum of Natural History, 67 NY2d 836 ; Aversa v New York City Hous. Auth., 233 AD2d 217 ; Lombardi v Stout, 80 NY2d 290 ; Kush v City of Buffalo, 59 NY2d 26 ; Luce v Hartman, 6 NY2d 786 ; Caldwell v Village of Is. Park, 304 NY 268 ; Holgerson v South 45th St. Garage, 16 AD2d 255 , 12 NY2d 1011 ; Matter of Guardian Cas. Co., 253 App Div 360 , 278 NY 674 ; Daggett v Keshner, 284 App Div 733 ; Morales v City of New York, 70 NY2d 981 .) IV If this Court should nonetheless determine that the relied-on Labor Law and/or Administrative Code of the City of New York provisions are applicable here and were violated, reinstatement of the judgment is still not warranted. Instead, there should be a remand to the Appellate Division for resolution of the other issues raised by the City of New York on its appeal to, but not addressed by, that Court. (Rabinowitz v City of New York, 286 AD2d 724 ; Capotosto v City of New York, 288 AD2d 419 , 98 NY2d 602 ; Criscione v City of New York, 97 NY2d 152 ; O’Connor v City of New York, 280 AD2d 309 , 96 NY2d 716 ; Schiavone v City of New York, 92 NY2d 308 ; Mittl v New York State Div. of Human Rights, 100 NY2d 326 ; Matter of P.M.S. Assets v Zoning Bd. of Appeals, 98 NY2d 683 ; Bluebird Partners v First Fid. Bank, 97 NY2d 456 ; Sena v Town of Greenfield, 91 NY2d 611 ; Urquhart v New York City Tr. Auth., 85 NY2d 828 .)
The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Break-stone of counsel), for Detectives’ Endowment Association, amicus curiae in the first above-entitled action. Labor Law § 27-a is a proper predicate for General Municipal Law § 205-e liability. (Balsamo v City of New York, 287 AD2d 22 ; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225 .)
Levy & Levy, New York City (Susan J. Levy and Judith R. Levy of counsel), for appellant in the second above-entitled action.
I. Because the First Department’s holding is a clear departure from well-established precedent, completely misconstrues General Municipal Law § 205-e, and is fundamentally unfair by vesting total discretion in the District Attorney’s hands, it abrogates plaintiffs rights under General Municipal Law § 205-e, and therefore the decision should be reversed
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herein. (Giuffrida v Citibank Corp., 100 NY2d 72 ; Carlson v City of Tonawanda, 221 AD2d 1011 ; Galapo v City of New York, 219 AD2d 581 ; Baiamonte v Buongiovanni, 207 AD2d 324 ; Healy v Moeller, 242 AD2d 366 ; Maisky v Towner, 196 AD2d 532 ; Costantini v Benedetto, 190 AD2d 888 ; Vertucci v Diaz, 192 AD2d 703 ; People v Cruz, 48 NY2d 419 ; Matter of Bath & Hammondsport R.R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434 .) II. Because the Penal Law alleged herein, sections 125.15, 125.10 and 35.30, and Criminal Procedure Law § 120.80 (3) and § 690.50 (3) fall squarely under the standards set forth in Desmond v City of New York ( 88 NY2d 455 [1996]), Gonzalez v Iocovello ( 93 NY2d 539 [1999]), Cosgriff v City of New York ( 93 NY2d 539 [1999]) and Galapo v City of New York ( 95 NY2d 568 [2000]), as well as General Municipal Law § 205-e (3), these statutes should be recognized as valid predicates, thus reversing the lower court’s holding and reinstating plaintiff-appellant’s complaint herein. (People v Shack, 86 NY2d 529 ; People v Cruz, 48 NY2d 419 ; People v Kealey, 33 NY2d 818 ; Rodriguez v City of New York, 189 AD2d 166 ; Carlson v City of Tonawanda, 221 AD2d 1011 ; People v Sullivan, 68 NY2d 495 ; People v Cameron, 244 AD2d 350 , 91 NY2d 940 ; People v Soto, 266 AD2d 245 ; People v Kealey, 33 NY2d 818 ; People v Pena, 169 Misc 2d 75 .) III. Because one of the specific goals of General Municipal Law § 205-e is to provide equivalent rights for injured or deceased police officers and ordinary citizens, the First Department’s narrow holding herein should not stand and this case should be reinstated herein. (Giuffrida v Citibank Corp., 100 NY2d 72 ; Mullen v Zoebe, Inc., 86 NY2d 135 ; O’Connor v City of New York, 280 AD2d 309 , 96 NY2d 716 ; Lubecki v City of New York, 304 AD2d 224 ; Summerville v City of New York, 257 AD2d 566 ; Rodriguez v City of New York, 189 AD2d 166 ; McCummings v New York City Tr. Auth., 81 NY2d 923 ; Velez v City of New York, 157 AD2d 370 ; Wilkes v City of New York, 308 NY 726 ; Lubelfeld v City of New York, 4 NY2d 455 .) IV. Because another important goal underlying General Municipal Law § 205-e is to enforce the statutes and ordinances of New York through civil remedies as provided in General Municipal Law § 205-e, the First Department’s holding was clearly erroneous as it prevents the enforcement of the Penal Law and Criminal Procedure Law in civil proceedings. (Giuffrida v Citibank Corp., 100 NY2d 72 ; Manning v Brown, 91 NY2d 116 ; Barker v Kallash, 63 NY2d 19 ; Gaither v City of New York, 300 AD2d 255 ; Masone v Unishops of Modell’s Inc., 73 AD2d 611 ; Adamowicz v Shafer, 155 Misc 2d 695 ; Henningsen v Markowitz, 132 Misc 547 ; Reed v State of
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New York, 78 NY2d 1 ; Kalra v Kalra, 149 AD2d 409 ; Johnson v State of New York, 253 AD2d 274 .) V Because the legislative history shows the legislative intent to provide broad remedial rights under General Municipal Law § 205-e, the First Department’s novel interpretation of section 205-e, which superimposes the requirement for a criminal conviction prior to allowing the Penal Law to serve as predicate, serves to rewrite section 205-e, thereby eviscerating plaintiff’s remedial rights under section 205-e in direct contravention of its legislative history. Therefore, the lower court’s decision should be reversed and the complaint should be reinstated herein. (Santangelo v State of New York, 71 NY2d 393 ; Healy v Moeller, 242 AD2d 366 ; St. Jacques v City of New York, 88 NY2d 920 ; Schiavone v City of New York, 92 NY2d 308 ; Gonzalez v Iocovello, 93 NY2d 539 .) VI. Because the trial court failed to apply the proper standards for summary judgment, and rather determined issues of fact in favor of the movant, the trial court’s granting of summary judgment is also clear error and should be reversed herein. (McCummings v New York City Tr. Auth., 81 NY2d 923 ; McCauley v New York City Hous. Auth., 232 AD2d 614 ; Velez v City of New York, 157 AD2d 370 ; People v Goetz, 68 NY2d 96 .
Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry P. Schwartz of counsel), for respondents in the second above-entitled action.
I. The Appellate Division correctly held that the Penal Law and Criminal Procedure Law provisions regarding the justified use of deadly physical force are not legally sufficient predicates for a General Municipal Law § 205-e claim, because they do not establish a standard of care upon which a civil cause of action can be based. (Brocato v City of New York, 294 AD2d 281 ; Brunette v City of New York, 269 AD2d 347 ; McCummings v New York City Tr. Auth., 81 NY2d 923 , 510 US 991 ; People v McManus, 67 NY2d 541 ; Luhecki v City of New York, 304 AD2d 224 ; McCauley v New York City Hous. Auth., 232 AD2d 614 ; Herring v City of Syracuse, 63 AD2d 833 .) II. The Appellate Division was also correct that none of the other Penal Law statutory provisions asserted by plaintiff here pertaining to assault and criminally negligent and reckless behavior may be proper predicates. This is because (1) they are broad-based, general provisions that do not give rise to a private right of action for private citizen plaintiffs; and (2) they all are subject to and, therefore, incorporate by necessary implication the Penal Law § 35.30 provisions on the justified police use of deadly physical force, which incorporate and permit the exercise of professional judgment and discretion. (Sega v
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State of New York, 60 NY2d 183 ; Matter of Richardson v Fiedler Roofing, 67 NY2d 246 ; Telaro v Telaro, 25 NY2d 433 ; Matter of Rivera v Smith, 63 NY2d 501 ; American Sugar Ref Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11 , appeal dismissed sub nom. New York Shipping Assn., Inc. v Waterfront Commn. of N.Y. Harbor, 458 US 1101 ; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314 ; Sheehy v Big Flats Community Day, 73 NY2d 629 ; Uhr v East Greenbush Cent. School Dist., 94 NY2d 32 ; Mark G. v Sabol, 93 NY2d 710 ; Carrier v Salvation Army, 88 NY2d 298 .) III. In any event, even if the claimed Penal Law provisions could be valid predicates for plaintiff’s General Municipal Law § 205-e cause of action, plaintiff’s complaint was nonetheless properly dismissed, because both Officer Huvane and Officer Curran were, as a matter of law, justified in firing their weapons at an armed perpetrator who struggled with Huvane, never dropped her weapon, and fired twice. (Schiavone v City of New York, 92 NY2d 308 ; Rodriguez v City of New York, 189 AD2d 166 ; Summerville v City of New York, 257 AD2d 566 , 94 NY2d 755 ; Galapo v City of New York, 95 NY2d 568 ; Brunette v City of New York, 269 AD2d 347 ; Salim v Proulx, 93 F3d 86 .)

OPINION OF THE COURT

These appeals involve the tragic deaths of three New York City police officers killed in the line of duty. Plaintiffs seek recovery under General Municipal Law § 205-e, which creates a statutory right of action where an officer’s injury or death is caused by a violation of certain statutes, ordinances, rules, orders and requirements of a governmental entity. In each case, the Appellate Division dismissed plaintiffs’ claims, finding that section 205-e liability could not be sustained. For the reasons that follow, we now affirm in both cases.

I.

A. McCormick

On April 27, 1988, a team of 19 police officers from the Bronx Narcotics Unit executed a no-knock search warrant for a drug raid at an apartment in Manhattan. The officers, dressed in plain clothes with police badges displayed around their necks or police vests over their clothing, repeatedly yelled “Police, open the door,” as they forced the apartment’s door open with a battering ram. Officer John P Huvane, who wielded the battering ram, rushed into the apartment in the lead as part of the six-

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member entry team. He threw the battering ram in the direction of a barking pit bull, later discovered to be tied up, and unholstered his service revolver.

Huvane immediately encountered an unarmed woman, whom he readily apprehended after she had fled to the bedroom in the back of the apartment. He quickly handed her off to other members of the entry team as he caught sight of a second woman, Mercedes Perez, standing behind the bedroom door with a gun in her hand. When Huvane called out “Police. Drop the gun,” Perez, who stood slightly over five-feet tall and weighed approximately 100 pounds, aimed the gun point-blank at Huvane’s head. In the flash that Huvane saw Perez, he did not notice that she was visibly pregnant.

Huvane, who was six-feet, two-inches tall and weighed 210 pounds, initially “swatted” or pushed Perez’s gun away from his face with his hand, as he had been trained to do to protect himself. He did not succeed in disarming her in this fashion, however, and a scuffle ensued. Perez’s gun discharged, causing a burn mark on Huvane’s wrist, and Huvane fired two rounds at Perez. As Perez, gun in hand, continued to “come[ ] at” Huvane, he retreated and bumped up against the bed. Falling off balance, Huvane fired a third round at Perez. Huvane testified that, as he came to rest partway on the bed, he thought for certain that he was about to die.

Officer James P Curran, another member of the entry team, heard the burst of gunfire as he was running into the bedroom behind Huvane, whom he observed “grappling” with Perez. As Huvane was falling backwards toward the bed, Curran stepped between Perez and Huvane and fired two shots at Perez “to stop her from shooting again at Huvane.” Perez slumped forward and Curran caught her and propped her up against the wall, but did not disarm her. After he heard another gunshot, which came from Perez’s direction, Curran flung himself on top of Huvane, who was supine on the bed. Curran noticed Perez, crouched over but moving rapidly, leaving the bedroom, still armed. Perez, who suffered two gunshot wounds, was soon caught and disarmed by another member of the entry team. The time elapsed from the first until the last shot fired was a matter of seconds.

Plaintiffs decedent, Sergeant John F. McCormick, was fatally wounded by a bullet fired from one of the officers’ guns during

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their confrontation with Perez.[1] This bullet traveled through the bedroom door and lodged in McCormick’s neck. Plaintiff brought a wrongful death action alleging, among other things, that the City was liable for decedent’s death based on General Municipal Law § 205-e. As relevant here, plaintiff predicated section 205-e liability on alleged violations of provisions of the Criminal Procedure Law and the Penal Law relating to the defense of justification, as well as on sections of the Penal Law pertaining to assault, criminally negligent homicide, reckless endangerment and manslaughter.

The City moved for summary judgment and dismissal for failure to state a claim, arguing that the officers were justified in using deadly physical force. Supreme Court granted the City’s motion and dismissed the complaint. Quoting extensively from the officers’ EBT and trial testimony, Supreme Court observed that “[a]s sad as this case is, the police officers who fired had a loaded gun pointed in their direction. In these circumstances there is no issue of fact as to whether the police conduct was legally justified.” The trial court concluded that “in the absence of any contested material issue of fact the use of deadly physical force by the officers, under these circumstances, was justified and not a violation of the Penal Law.”

Observing that the justification statutes “do not establish a standard of care upon which a civil cause of action can be based, but rather a defense to a criminal prosecution” ( 307 AD2d 231 , 232 [1st Dept 2003] [emphasis in original; internal quotation marks omitted]), the Appellate Division affirmed on an alternative basis. Specifically, the Appellate Division concluded that “[m]erely an ‘alleged violation’ of [other] provisions of the Penal Law, which are as yet unproven in a criminal proceeding, cannot serve as a predicate for a civil claim under General Municipal Law § 205-e, as a matter of law” {id.).

B. Williams

On November 13, 1989 while assigned to the Queens County District Attorney Detective Squad, Detectives Keith Williams and Richard Guerzon took custody of a prisoner, Jay “Stoney” Harrison, pursuant to a “takeout order,” and transported him from the Rikers Island Correctional Facility to the District At

1 Perez was charged with and tried for various crimes stemming from this incident. At her criminal trial, she denied that she had intentionally fired her gun, which she kept “to intimidate somebody,” but conceded that “it could have gone off.” Perez was acquitted of all crimes related to the death of McCormick, except for criminal possession of a weapon.

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torney’s (DA) office for a polygraph test. Upon arrival at the DA’s office, Harrison was placed in the Detective Squad’s locker room, which doubled as a detention area. Harrison was seated at the table in the locker room, with one of his hands cuffed to a metal pipe installed for just this purpose. The pipe was mounted several inches above the table’s surface, and ran the table’s length. Despite being handcuffed, Harrison, while left alone, managed to remove a service revolver from one of the nearby lockers and conceal it on himself. On the return trip to Rikers Island, he shot and killed Williams and Guerzon with the stolen revolver.[2]

Plaintiffs brought separate civil actions alleging, among other things, that the City was liable for decedents’ deaths based on General Municipal Law § 205-e. As relevant here, plaintiffs predicated section 205-e liability on Labor Law § 27-a, entitled “Safety and health standards for public employees,” and Administrative Code of the City of New York §§ 27-127 and 27-128, which require that buildings be maintained in a safe condition and hold owners responsible for such maintenance.

The cases were consolidated and proceeded to trial on April 21, 1999, 10 years after the officers’ deaths. Plaintiffs’ theory was that “the locker room was improperly used as a prisoner detention area and that the prisoner had gained access to the locker containing the gun because its lock was either open or defective” ( 304 AD2d 562 , 563 [2d Dept 2003]). Plaintiffs’ expert, a former assistant chief with the New York City Police Department, opined that the locker room was “[t]otally inadequate” as a detention facility.

The jury found the City liable for violating Labor Law § 27-a as well as the Code provisions, and returned verdicts of $5,260,252 for the Williams plaintiffs, and $8,975,625 for the Guerzon plaintiffs. The City renewed its motion to dismiss for failure to establish a prima facie case, on which the trial court had reserved decision, and moved to set aside the verdict for legally insufficient evidence. Supreme Court denied the motions and the City appealed.

A divided Appellate Division reversed the judgment, on the law, granting the City’s motion to set aside the verdicts and dismissing the complaints. The majority found that there was

2 Harrison was apprehended and convicted of four counts of second-degree murder (People v Harrison, 207 AD2d 359 [2d Dept 1994], Iv denied 84 NY2d 936 [1994]).

II

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no evidence that “the locker room was maintained in an unsafe condition within the meaning of’ Administrative Code §§ 27-127 and 27-128 (304 AD2d at 564). The Appellate Division also found that the hazard causing decedents’ deaths was “the practice of holding prisoners in proximity to lockers where firearms were kept” (id. at 565). Accordingly, Labor Law § 27-a (3) (a) (1) was not implicated because it “encompasses physical and environmental hazards in the workplace, not the use to which a room is put” (id.). The dissenting Justices agreed with the majority that the Code provisions were not violated, but considered section 27-a (3) (a) (1) applicable because it was not limited to physical and environmental hazards, and placed a general duty on employers to “prevent hazardous conditions from developing, either in employment or the place of employment” (id. at 567).

Common law barred a police officer from recovering in tort for injuries suffered in the line of duty (see Santangelo v State of New York, 71 NY2d 393 , 397 [1988]). In 1989, the Legislature modified the common law by adding section 205-e to the General Municipal Law (L 1989, ch 346); and in 1996, the Legislature “largely abolishe[d]” the common law by enacting section 11-106 of the General Obligations Law (see Giuffrida v Citibank Corp., 100 NY2d 72 , 78 [2003]). The latter provision allows police officers to bring tort claims for most work injuries that occur in the line of duty. Importantly, however, section 11-106 maintains the common-law bar on tort claims against “the police officer’s . . . employer or co-employee” (General Obligations Law § 11-106 [1]). Thus, while a police officer can assert a common-law tort claim against the general public, liability against a fellow officer or employer can only be based on the statutory right of action in General Municipal Law § 205-e.

To make out a claim under section 205-e, a plaintiff must “[1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant’s negligence directly or indirectly caused the harm” (see Giuffrida, 100 NY2d at 79 [internal quotation marks omitted]). These appeals involve the first requirement of that standard; namely, whether the defendants failed to comply with a statute or ordinance.

Section 205-e (1) creates a statutory cause of action where a police officer is injured by another’s failure “to comply with the

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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” (emphasis added). While this language is seemingly limitless, “it is well settled that the statute cannot reasonably be applied literally in accordance with its broad language. . . . Rather, as a prerequisite to recovery, a police officer must demonstrate injury resulting from negligent noncompliance with a requirement found in a well-developed body of law and regulation that imposes clear duties” (Galapo v City of New York, 95 NY2d 568 , 574 [2000] [internal quotation marks omitted], quoting Desmond v City of New York, 88 NY2d 455 , 463, 464 [1996]). At the same time, a series of amendments to section 205-e teaches us that we should apply this provision “expansively” so as to favor recovery by police officers whenever possible (see Gonzalez v Iocovello, 93 NY2d 539 , 548 [1999]).

In Galapo, we held that the City Police Department Patrol Guide cannot give rise to section 205-e liability, primarily because it is not a “duly-enacted body of law or regulation” (95 NY2d at 574), but also because imposing liability based on the Guide would “allow a trier of fact ... to second-guess line-of-duty decisions on matters affecting public safety” (id. at 575). In Desmond, we similarly refused to predicate section 205-e liability on a City Police Department internal guideline that required police officers to exercise “individual judgment” about the relative safety risks of their actions (88 NY2d at 464).

In Gonzalez, however, we found that a violation of section 1104 (e) of the Vehicle and Traffic Law could serve as a predicate for section 205-e liability. That provision creates a privilege exempting drivers of authorized emergency vehicles from certain provisions in the Vehicle and Traffic Law, but “explicitly qualifies that privilege” (93 NY2d at 551) by providing that “the driver of an authorized emergency vehicle [shall not be relieved] from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others” (Vehicle and Traffic Law § 1104 [e]). We distinguished section 1104 from the administrative provisions in Galapo and Desmond in part because of its nature as a statute enacted by the Legislature. We also stated, however, that unlike the administrative provisions in the other cases, section 1104 “mandates a reasonably defined and precedentially developed standard of care,” and does not require the trier of fact to

III

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“second-guess an officer’s split-second weighing of choices” (93 NY2d at 551).

Against this backdrop, we are asked whether plaintiffs in McCormick and Williams have established claims under section 205-e premised on alleged violations of the Penal Law and the Labor Law respectively. Our prior cases provide the framework for determining whether these statutes may serve as predicates; however, the question of whether the defendants have “failed to comply with a statute” is not answered merely by interposing a proper predicate. Liability cannot be imposed under section 205-e unless a plaintiff has established that a statute was, in fact, violated. While we hold that the Penal Law is a proper predicate for section 205-e liability, the plaintiffs in McCormick did not establish that the Penal Law was violated by Huvane and Curran. Similarly, the plaintiffs in Williams failed to establish a violation of Labor Law § 27-a.[3]

A. McCormick

Preliminarily, we reject the notion that a section 205-e claim may be premised solely on a violation of the justification defenses found in the Penal Law or the Criminal Procedure Law (see Brocato v City of New York, 294 AD2d 281 , 281-282 [1st Dept 2002] [Penal Law § 35.30 “does not establish a standard of care upon which a civil cause of action can be based, but rather a defense”]). We conclude, however, that a claim may be predicated on a violation of those Penal Law sections that prohibit specific acts. Indeed, we are hard put to find a more “well-developed body of law and regulation that imposes clear duties” (Galapo, 95 NY2d at 574 [internal quotation marks omitted]). Further, making a conviction prerequisite to a section 205-e claim predicated on the Penal Law conflates the issue of which statutes may serve as predicates with the question of whether a statute has been violated in a particular case. Accordingly, plaintiff may predicate her claims on alleged violations of the assault, homicide, reckless endangerment and manslaughter provisions of the Penal Law. Her challenge lies in demonstrating that the conduct of Huvane and Curran violated these provisions.

3 The City originally argued that Labor Law § 27-a (3) (a) (1), the “general duty” clause, was not a proper predicate under section 205-e, but waived this argument on appeal. Accordingly, we decide this appeal by assuming, without deciding, that this particular provision of the Labor Law is a proper predicate.

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Plaintiffs burden is further complicated by the fact that Huvane and Curran were acting in the line of duty when McCormick was killed, and contend that they employed the force necessary to defend themselves against what they reasonably believed to be the use or imminent use of deadly physical force (see Penal Law § 35.30 [1] [c]).[4] Like the administrative materials involved in Galapo and Desmond, Penal Law § 35.30’s justification defense requires a trier of fact to “second-guess an officer’s split-second weighing of choices.” General Municipal Law § 205-e liability is based on violation of a law that imposes “clear duties,” which cautions against predicating a section 205-e claim on alleged Penal Law violations that implicate the justification defense. Mindful of the Legislature’s direction that we construe section 205-e broadly, however, we conclude that a conviction is not necessary to find a violation of the Penal Law for purposes of section 205-e liability. Nonetheless, because the provisions that plaintiff claims were violated require proof beyond a reasonable doubt and even then, otherwise criminal conduct is excused if justified, her burden is substantial in the absence of a conviction.

We hold that where no criminal charges have been brought against a section 205-e defendant, a rebuttable presumption exists that the Penal Law has not been violated. A defendant who has not been charged with a crime is entitled to summary judgment on a section 205-e claim predicated on the Penal Law where a reasonable view of the evidence supports the conclusion either that no prohibited conduct took place, or that a justification defense exists. To defeat the defendant’s motion, a plaintiff

4 Section 35.30, entitled “Justification; use of physical force in making an arrest or in preventing an escape,” provides that “1. A police officer . . . , in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he reasonably believes to have committed an offense, may use physical force when and to the extent he reasonably believes such to be necessary to effect the arrest, or prevent the escape from custody, or to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force; except that he may use deadly physical force for such purposes only when he reasonably believes that: . . . “(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer ... or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force” (emphasis added).

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must come forward with compelling evidence demonstrating a material question of fact as to whether the conduct was criminal and not justified.

Here, Huvane and Curran fired their weapons in the line of duty when faced with a criminal suspect poised to shoot a gun at them, which she, in fact, twice discharged. Huvane testified that he feared for his life and thought himself about to die. It is reasonable to conclude, based on these facts, that the use of deadly physical force was necessary for Huvane and Curran to defend themselves from imminent physical harm. It is also reasonable to conclude that neither Huvane nor Curran was “reckless” or “criminally negligent” as those terms are used in the Penal Law {see Penal Law § 15.05 [3], [4], requiring a “gross deviation” from reasonable standards).

In opposition to the City’s motion, plaintiff offered the affidavit of a former chief of police of Tallahassee, Florida. Plaintiffs expert opined that the use of deadly force was unreasonable under the circumstances because the officers should have been able to subdue Perez using defensive disarming techniques, given the height and weight differential between Perez and them. This speculative evidence is insufficient to rebut the presumption that the Penal Law was not violated; therefore, summary judgment was properly granted.

B. Williams

Labor Law § 27-a, known as the Public Employee Safety and Health Act (PESHA), was enacted “to provide individuals working in the public sector with the same or greater workplace protections provided to employees in the private sector under OSHA” (Hartnett v New York City Tr. Auth., 86 NY2d 438 , 442 [1995]). In implementing standards for PESHA, New York has adopted OSHA’s workplace safety standards {see 12 NYCRR 800.3).

Plaintiffs do not allege a violation of a specific workplace safety standard. They allege only a violation of the “general duty” clause, which provides that

“[e]very employer shall: (1) furnish to each of its employees, 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 .... In applying
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this paragraph, fundamental distinctions between private and public employment shall be recognized” (Labor Law § 27-a [3] [a] [1]).

We hold that this provision does not cover the special risks faced by police officers because of the nature of police work. The judgments that must be made by police supervisors in minimizing the danger that police officers inevitably face, while at the same time protecting the public, are uniquely sensitive, difficult and important. Police supervisors must decide, among other things, how police officers should use and store their weapons and ammunition; how much security should be provided when prisoners are transported; and where and under what conditions prisoners should be detained. We think it highly unlikely that the Legislature intended the general language of section 27-a to authorize Department of Labor inspectors enforcing PESHA to second-guess the decisions of police supervisors on matters like these.

Balsamo v City of New York ( 287 AD2d 22 [2d Dept 2001]) is not to the contrary. There, a police officer was injured in his patrol car in an automobile accident when his left knee allegedly came into contact with a sharp protruding edge of an unpadded computer console mounted off the automobile’s floor. Arguably, under the facts in Balsamo, section 27-a applies because PESHA is designed to prevent the type of occupational injury that occurred when the officer was given an improperly equipped vehicle. The injury in Balsamo did not arise from risks unique to police work. By contrast, the “occupational” injury the officers sustained here was death at the hands of a prisoner. Important as it is to prevent such tragedies, we rely on the judgment of those supervising the Police Department to do so—not on regulation and oversight by the Commissioner of Labor.

Plaintiffs’ reliance on sections 27-127 and 27-128 of the Administrative Code is equally unavailing. Those provisions require that “[a]ll buildings and all parts thereof shall be maintained in a safe condition” (§ 27-127) and that “[t]he owner shall be responsible at all times for the safe maintenance of the building and its facilities” (§ 27-128). At best, plaintiffs claim that the lock on the locker was broken or open, and the detention cell was not properly configured. The first of these allegations implicates a single item of equipment; the second, the City’s policies and procedures. Neither allegation claims that the building and “facilities” were not maintained in a safe manner.

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Accordingly, in each case the order of the Appellate Division should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

In each case: Order affirmed, with costs.

Cases cited

Statutes and regulations cited