Opinion
May 19, 1966
Judgment dismissing the complaints against defendant-respondent City of New York in consolidated actions for the wrongful death of six New York City firemen and personal injuries of a seventh fireman, unanimously affirmed, without costs or disbursements. The record fails to establish actionable negligence under the common law. ( Motyka v. City of Amsterdam, 15 N.Y.2d 134.) Insofar as the plaintiffs rely on section 205-a Gen. Mun. of the General Municipal Law, there is no cause of action thereon as to the City of New York in respect of its alleged failure to effect compliance with charter and code provisions relating to the construction of the parapet wall. Section 205-a imposes liability for "failing to comply" with requirements of statutes, ordinances, rules, orders and requirements of various governmental agencies. In the instant case, the duty of compliance was on the owner and other persons responsibile for the erection of the parapet wall. Nykanen v. City of New York ( 14 N.Y.2d 697) is inapplicable because defendant was there charged with liability as owner of the property. Here, plaintiffs seek to charge the City of New York not as owner but for its failure to comply with its general duty to effect compliance, which is not within the scope of section 205-a.
Concur — Botein, P.J., Rabin, McNally, Stevens and Steuer, JJ.