Burigo v. Di Leo

• Court: New York County Court
• Writing for the Court: JOHN H. GALLOWAY, Jr.
• Citation: Burigo v. Di Leo, 239 N.Y.S.2d 166, 38 Misc.2d 851 (N.Y. Cty. Ct. 1963)
• Decision Date: 09 March 1963
• Parties: Silvio M. BURIGO, Jr., Plaintiff, v. Anna Ritacco DI LEO and Frank Di Leo, Defendants.

Page 166

239 N.Y.S.2d 166

38 Misc.2d 851

Silvio M. BURIGO, Jr., Plaintiff, v. Anna Ritacco DI LEO and Frank Di Leo, Defendants.

Westchester County Court.

March 9, 1963.

Fasso & Belserene, New Rochelle, for plaintiff.

Howard H. Schrecke, White Plains, for defendants.

JOHN H. GALLOWAY, Jr., Judge.

Plaintiff moves for leave to amend his complaint to plead a second cause of action under Section 205-a of the General Municipal Law, in order to comply with the decisional requirement that such a cause of action being sui generis, must be separately stated and submitted. The proposed amended complaint is submitted with the moving papers.

It appears from the original complaint, also submitted on the motion, that the single cause of action therein alleged was framed on the theory of common law negligence. Contrary to plaintiff's contention, we do not think that complaint was sufficient to state a cause of action under Section 205-a. But that is of no consequence on this motion, since plaintiff now seeks to comply with the decisional requirement that such a cause of action be separately stated and submitted (Gannon v. Royal Properties, 285 App.Div. 131, 136 N.Y.S.2d 129, aff'd. 309 N.Y. 819, 130 N.E.2d 616; Cramer v. Nuccitelli, 2 Misc.2d 508, 151 N.Y.S.2d 544, 548); and further, since his assertion of this cause of action is not barred by the 3-year statute of limitations, but is governed by the 6-year statute (section 48, subd. 2, Civil Practice Act; Sicolo v. Prudential Savings Bank of Brooklyn, 5 N.Y.2d 254, 184 N.Y.S.2d 100, 102, 157 N.E.2d 284).

Section 205-a, General Municipal Law, provides in pertinent part as follows:

'In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, * * * occurs directly or indirectly as a result of any neglect, omission, wilful or culpable negligence of any person * * * in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments * * * the person * * * guilty of said neglect, omission, willful or culpable negligence at the time of such injury * * * shall be liable to pay any officer, member, agent or employee of any fire department injured * * * while in the discharge or performance of any duty imposed by the * * * superior officer of the fire department, * * * a sum of money, in case of injury to person, not less than one thousand dollars, * * * such liability to be determined and such sums recovered in an action to be instituted by any person injured * * * as aforesaid.'

The proposed amended complaint (second cause of action) pleads that plaintiff, while acting in the course and in the performance of his duties as a fireman, and while driving his Battalion Chief in the latter's official car and responding to an emergency fire alarm, was injured in a collision between defendant's and the Battalion Chief's car, as the result of defendant's negligence in failing to comply with Sections 1144, 1104 and 101, Vehicle & Traffic Law, which required defendants to stop and yield the right of way to plaintiff until his authorized emergency vehicle had passed.

In opposing the motion, defendants urge that a Section 205-a right of action does not exist and cannot be invoked by plaintiff in the factual situation here presented; that it was not the legislative intent to impose the statutory liability created thereby to the situation in the instant case. They refer to all the cases annotated under Section 205-a (none of which are cited), and state that all those cases deal with defendant owners of property or their employees and with violations of statutes or ordinances which are concerned with fire prevention.

We have examined such cases as Gannon v. Royal Properties, 285 App.Div. 131, 136 N.Y.S.2d 129, aff'd 309 N.Y. 819, 130 N.E.2d 616, supra; Sicolo v. Prudential Savings Bank of Brooklyn, 4 A.D.2d 790, 165 N.Y.S.2d 222, reversed on question of applicable statute of limitations, 5 N.Y.2d 254, 184 N.Y.S.2d 100, 157 N.E.2d 284; Sicolo v. Prudential Savings Bank of Brooklyn, 2 Misc.2d 289, 151 N.Y.S.2d 295; Hawkins v. Dec-Art Co., Inc., 12 A.D.2d 612, 208 N.Y.S.2d 483; Izzillo v. Mulkor Warehousing Co., 14 Misc.2d 609, 182 N.Y.S.2d...