Cooper v. City of New York

• Court: New York Supreme Court — Appellate Division
• Citation: Cooper v. City of New York, 582 N.Y.S.2d 394, 182 A.D.2d 350 (N.Y. App. Div. 1992)
• Decision Date: 02 April 1992
• Parties: Gertrude Jones COOPER, Plaintiff-Respondent-Appellant, v. The CITY OF NEW YORK, Defendant-Appellant-Respondent, Steven Bakal, Defendant, and Millicent E. Hall, Defendant-Respondent.

Page 394

582 N.Y.S.2d 394

182 A.D.2d 350

Gertrude Jones COOPER, Plaintiff-Respondent-Appellant, v. The CITY OF NEW YORK, Defendant-Appellant-Respondent Steven Bakal, Defendant and Millicent E. Hall, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 2, 1992.

Before MURPHY, P.J., and WALLACH, KUPFERMAN, ASCH and SMITH, JJ.

MEMORANDUM DECISION.

Judgment of Supreme Court, Bronx County (Alan J. Saks, J), entered October 30, 1990, awarding plaintiff $819,766 upon reduction of a jury verdict of $4,820,500, unanimously reversed, on the law, and the complaint is dismissed, without costs.

Plaintiff, a New York City police officer, was "recorder" in a vehicle driven by a fellow officer which was responding to an emergency call when it slammed into the rear of another vehicle, causing plaintiff's injuries. Plaintiff sued the City, as well as her fellow officer and the driver of the civilian vehicle. The City appeals in part from denial of its motion to dismiss under Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, which applied the so-called "fireman's rule" in precluding recovery by a policeman for injuries suffered by reason of negligence during the routine performance of police duties. Santangelo followed Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872, which had carved a common law exception out of the fireman's statutory cause of action for injuries suffered by reason of negligent failure to comply with any "statutes, ordinances, rules, orders and requirements" (General Municipal Law § 205-a). Among other things, the Court of Appeals, in Kenavan, interpreted § 205-a as applying not simply to the violation of any statute, ordinance, rule or order, but more specifically to an "owner or other person in control [who] negligently fail[s] to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises" (70 N.Y.2d at 567, 523 N.Y.S.2d 60, 517 N.E.2d 872, emphasis added). Following Santangelo, the Legislature enacted a similarly worded statutory right of action for policemen (General Municipal Law § 205-e). We have interpreted § 205-e as also being linked solely to negligent noncompliance regarding the "maintenance and safety of the premises" (Sciarrotta v. Valenzuela, 182 A.D.2d 443, 445, 581 N.Y.S.2d 351; Buckley v. City of New York, 176 A.D.2d 207, 574 N.Y.S.2d 329), a position which has met with agreement in the Second and Fourth Departments of the Appellate Division (see, Pane v. City of New York, 177 A.D.2d 688, 577 N.Y.S.2d 68; Wawrzyniak v. Sherk, 170 A.D.2d 972, 566 N.Y.S.2d 138). ¹

We note in passing that plaintiff's complaint is further defective in that it fails to allege the violation of a "specific statute, ordinance, rule, order or...