McCullough v. Gardner

Judgment unanimously reversed on the law with costs and new trial granted. Memorandum: The trial court erred in refusing to charge the jury that a violation of 938 the State Uniform Fire Prevention and Building Code (see, 9 NYCRR part 600 et seq.), adopted by the City of Rochester (see, City of Rochester Code § 39-101), could be considered as evidence of negligence (see, Major v Waverly & Ogden, 7 NY2d 332, 336). The evidence was sufficient to support a finding by the jury that defendant violated the Code and that the violation was a proximate cause of plaintiffs injuries. Therefore, plaintiff was entitled to the requested charge (see, Heil v Schaefer Brewing Co., 38 NY2d 935, 936; Healy v Rennert, 9 NY2d 202, 211; Lein v Czaplinski, 106 AD2d 723, 724). In view of our decision, we do not address the issues concerning the adequacy of the damage award or the apportionment of liability. (Appeal from Judgment of Supreme Court, Monroe County, Affronti, J. — Negligence.) Present — Callahan, J. P., Green, Pine, Boehm and Doerr, JJ.