Carbon Monoxide Poisoning at a Restaurant or Mall: Who Can Be Liable in New York?

On September 23, 2026, the Second Department decided an appeal that began with a death at the Walt Whitman Mall. On February 22, 2014, the general manager of a restaurant in the mall was found unconscious in its basement and later died of carbon monoxide poisoning; three Suffolk County police officers who answered the 911 call were exposed as well. The decision, Fezza v Legal Sea Foods, LLC, turns on one question: does the repair contractor answer for the leak?

Take an invented example. A customer at a restaurant in a Commack shopping center feels sick at lunch and is treated at the hospital for carbon monoxide exposure. Firefighters find carbon monoxide near a water heater that a plumbing company, hired by the restaurant, repaired the week before. The shopping center owns the building. Our post on proving a premises liability case in New York covers the general rules; this one covers a leak and the three kinds of defendants it brings in.

What the Second Department decided in Fezza

The officers sued the restaurant’s operator, Legal Sea Foods, LLC, the mall’s owner, Walt Whitman Mall, LLC, and City-Wide Sewer & Drain Service Corp. The estate’s administrator sued Walt Whitman Mall, LLC, Simon Property Group, Inc., and City-Wide for personal injuries and wrongful death. Both alleged that City-Wide was negligent “in failing to discover a deteriorated pipe that caused the carbon monoxide leak during City-Wide’s repair of a hot water heater four days prior to the incident.” Legal Sea Foods and the mall’s owner cross-claimed against City-Wide for contribution and indemnification. On March 7, 2022, the Supreme Court, Suffolk County, granted City-Wide summary judgment on all of it.

The restaurant, the mall’s owner and Simon appealed and lost. As to the plaintiffs’ claims, they were “not aggrieved,” so that part of the appeal was dismissed; the dismissal of their cross-claims was affirmed. City-Wide showed that neither the officers nor the general manager were parties to any agreement between it and Legal Sea Foods, and that its repair “neither launched an instrument of harm nor created or exacerbated the alleged dangerous condition at the restaurant.” The restaurant defendants’ expert’s opinion, that the repair made the heater’s combustion gas system worse, was “speculative and conclusory.”

The decision does not say whether the restaurant, the mall’s owner or Simon was negligent; that was not on this appeal. It decides something narrower. The order dismissing the case against the repair company stands, and the restaurant side cannot shift any share of the loss onto it.

Why the repair contractor usually owes you no duty

In Espinal, a worker slipped on ice in her employer’s parking lot and sued the company that had plowed it. The Court held that a contract alone generally creates no duty to a third party, and named the three situations in which a contractor does take on a duty to people outside the contract. The flow below asks them in order.

The first exception is the one that matters in a leak case. A contractor who “creates or exacerbates” a harmful condition “may generally be said to have ‘launched’ it.” The case against a heating or plumbing contractor is about what its own work did to the appliance, the vent or the pipe.

The contractor who comes in and fixes the heater generally owes its duty of care to the party that contracted with it, and not to members of the general public at large. That is Espinal. A contract alone generally does not impose liability on a contractor to anyone other than the parties to the contract. You can overcome that by showing that the contractor launched the harm (i.e., caused or exacerbated the dangerous condition) or where the contractor’s contract completely displaced the owner’s duty of care to maintain the premises in a reasonably safe condition. The displacement factor is not going to be satisfied on a repair job, so it is mainly going to be a privity issue.

That last sentence is my view of repair cases, not a holding; the appellate courts will test it as more of them come up. The practical consequence is the one Fezza shows: a claim that a repair made a leak worse needs an expert who can say how, from the appliance and the work order, or it ends on summary judgment.

The owner and the restaurant: control and notice

The building is a different matter. In Gronski v County of Monroe (2011), the Court of Appeals said a landowner “owes a duty of care to maintain his or her property in a reasonably safe condition,” a duty “premised on the landowner’s exercise of control over the property.” A landowner “who has transferred possession and control is generally not liable.” Whether control was really given up turns on the written agreement and on the parties’ course of conduct, including the owner’s ability to get into the premises.

In a mall that cuts both ways: the landlord may keep the rooftop units, the gas lines or the right to come in and repair. Who controlled the appliance that leaked is the first fact a lawyer wants, and the lease is the first document that answers it.

Notice is the second. On September 30, 2026, in Rojas v 1388 Bushwick Ave, LLC, a sidewalk case, the Second Department restated what a defendant owner must show to win summary judgment: “that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and remedied it.”

The owner of the building is different than the tenant, which is the restaurant. If they knew about the condition or should have known about it, then they’re both on the hook. That’s the test: either they created it, they knew about it, or it existed so long they should have discovered it and fixed it. In a case like this you sue everyone: the owner of the building, the tenant, which is the restaurant, as well as any contractor that may have caused the condition. And if you’re alleging that the contractor created the condition, be sure to include that in your complaint or bill of particulars because then, to win summary judgment, the contractor has to show that it didn’t create the condition.

Consequently, the service history matters as much as the leak. Earlier service calls on the same heater, or an alarm that sounded and was silenced, can turn a sudden leak into one somebody should have found.

Detectors and the building code

The Uniform Fire Prevention and Building Code adds one more fact to check. Executive Law § 378(5-d) directs that the code require “the owner of every building that contains one or more restaurants and the owner of every commercial building in the state” to install and “maintain operable carbon monoxide detecting device or devices,” but “only” if the restaurant or building “has appliances, devices or systems that may emit carbon monoxide or has an attached garage.”

The card below sets out every party a carbon monoxide case can reach in New York, the rule that applies to each, and the authority behind it.

The text of § 378 does not say that anyone hurt may sue under it for damages. The claim is still negligence, and a missing or dead detector is a fact in it; for officers and firefighters it may be more.

Who is suing: employees, police officers and firefighters

So who is suing makes a difference too. If you worked there, your direct employer is out, because that’s workers’ comp. And your claim is against everyone else who isn’t your employer or a co-worker, the owner, landlord, contractor. Now what makes the police officer different is they have a cause of action for ordinary negligence against the owner under General Obligations Law section 11-106 and if the owner violated a statute or rule there’s General Municipal Law section 205-e for police officers and 205-a for firefighters.

The statutes say so. Workers’ Compensation Law § 11 makes the employer’s liability “exclusive and in place of any other liability whatsoever,” unless the employer failed to secure compensation, and § 29(1) lets an employee take compensation and still sue someone “not in the same employ,” on its own timing rules and subject to the carrier’s lien. Our post on a road worker’s comp and third-party claims walks through both.

For officers and firefighters, the line-of-duty claim reaches anyone “other than that police officer’s or firefighter’s employer or co-employee” whose neglect proximately caused the injury, and the two General Municipal Law sections add a claim for a failure “to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements” of government. A State code rule on carbon monoxide detection may be that kind of requirement, against the party the rule binds, which under § 378(5-d) is the building owner.

Deadlines after an injury or a death

A death shortens the clock. A personal injury action must be commenced within three years under CPLR 214(5), but the wrongful death action “must be commenced within two years after the decedent’s death,” and only a duly appointed personal representative can bring it, so the estate has to be opened first. Our post on the wrongful death statute of limitations covers the details.

Wrongful death damages are “fair and just compensation for the pecuniary injuries resulting from the decedent’s death,” plus medical and funeral expenses (EPTL 5-4.3). A claim against a town, a county or another public body starts with a notice of claim within 90 days under General Municipal Law § 50-e (in a death case, from the appointment of the estate’s representative); our wrongful death practice page covers that path.

What to do in the first weeks

Carbon monoxide leaves little behind once the heater is fixed or replaced, so the record is made in the first days. Ask for the fire department’s report, keep the hospital records, and send an early letter asking the business to preserve its service invoices and the appliance itself.

Back to the customer in Commack

The customer has a negligence claim against the restaurant, and against the shopping center if it kept control of the water heater; either is liable if it created the leak or had notice long enough to fix it. The plumbing company owes the customer a duty only within an Espinal exception, in practice whether its repair launched the harm; that has to be pleaded and backed by proof that is not speculative. Had the customer been a cook there, the restaurant would owe compensation and the lawsuit would run against the others. The clock is three years.

Our premises liability practice explains how these cases are built, and our post on Legionnaires’ disease claims against a building covers another hazard that comes from a building’s own systems.

Sources

• Fezza v Legal Sea Foods, LLC, 2026 NY Slip Op 05382 (2d Dept September 23, 2026)
• Espinal v Melville Snow Contractors, 98 NY2d 136 (2002)
• Rojas v 1388 Bushwick Ave, LLC, 2026 NY Slip Op 05563 (2d Dept September 30, 2026)
• Gronski v County of Monroe, 18 NY3d 374 (2011)
• Executive Law § 378, Uniform fire prevention and building code standards
• General Obligations Law § 11-106
• General Municipal Law § 205-e and § 205-a
• Workers’ Compensation Law § 11 and § 29
• EPTL 5-4.1, 5-4.3 and 11-3.2
• CPLR 214
• General Municipal Law § 50-e

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If you or a family member was hurt or killed by carbon monoxide at a restaurant, store or mall on Long Island, call (516) 750-0595 with the fire department or police report number, or request a free case review.