Cottone v. City of New York

• Decision Date: 05 July 1994
• Citation: Cottone v. City of New York, 614 N.Y.S.2d 44, 206 A.D.2d 345 (N.Y. App. Div. 1994)
• Parties: Angelo COTTONE, Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 44

614 N.Y.S.2d 44

206 A.D.2d 345

Angelo COTTONE, Appellant, v. CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division Second Department.

July 5, 1994.

Lysaght, Lysaght & Kramer, P.C., Lake Success (Joseph L. Decolator, of counsel), for appellant.

Paul A. Crotty, Corp. Counsel, New York City (Pamela Seider Dolgow and Linda H. Young, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Golden, J.), entered September 17, 1992, which, upon the granting of the defendant's motion to dismiss the complaint at the close of the plaintiff's case for failure to establish a prima facie case, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff, who was a police officer at the time of the accident, was injured when he tripped and fell on a defective sidewalk as he was in pursuit of a youth who had just thrown stones at and injured a young girl. At the close of the plaintiff's case, the court dismissed the complaint on the ground, inter alia, that the plaintiff's common-law negligence action is barred by the so-called "fireman's rule" (see, Santangelo v. State, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770).

Under the circumstances, we agree with the Supreme Court that the action is barred by the fireman's rule, since the plaintiff's injuries arose out of a particular danger which police officers are expected to assume as part of their...