Damiani v. City of Buffalo

• Citation: 603 N.Y.S.2d 1006,198 A.D.2d 814
• Parties: Albert DAMIANI and Mary Damiani, Appellants, v. CITY OF BUFFALO, Respondent. John ALESSANDRA, Appellant, v. CITY OF BUFFALO, Respondent.
• Decision Date: 19 November 1993
• Court: New York Supreme Court Appellate Division

Page 1006

603 N.Y.S.2d 1006

198 A.D.2d 814

Albert DAMIANI and Mary Damiani, Appellants, v. CITY OF BUFFALO, Respondent.

John ALESSANDRA, Appellant, v. CITY OF BUFFALO, Respondent.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 19, 1993.

As Amended Feb. 4, 1994.

Before PINE, J.P., and LAWTON, FALLON, DOERR and DAVIS, JJ.

MEMORANDUM:

City of Buffalo police officers, Albert Damiani and John Alessandra (plaintiffs), were accidentally shot by fellow police officers while responding to a report of two vicious dogs on Goulding Avenue in the City of Buffalo. Plaintiffs commenced separate actions to recover damages for personal injuries, each alleging liability for common-law negligence and pursuant to General Municipal Law § 205-e. Defendant interposed answers containing affirmative defenses, one of which alleged that plaintiffs' exclusive remedy lies under General Municipal Law § 207-c. Plaintiffs subsequently moved to dismiss that affirmative defense and defendant cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiffs' motion and granted defendant's cross motion.

Plaintiffs' common-law negligence causes of action were properly dismissed because they are barred by the "fireman's rule" (see, Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872), which was held to apply to police officers in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770. Police officers, like firefighters, generally cannot recover for injuries resulting from the special risks inherent in the duties they are engaged to perform (see, Santangelo v. State of New York, supra, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770; see also, Morrisey v. County of Erie, 198 A.D.2d 839, 603 N.Y.S.2d 1009 [decided herewith]. Plaintiffs' contention that their common-law negligence causes of action are not barred by the "fireman's rule" because the negligence causing their injuries was "separate and apart" from the act that occasioned the police officers' services lacks merit (see, Clark v. DeJohn, 198 A.D.2d 818, 603 N.Y.S.2d 1008 [decided herewith]. The Court of Appeals recently refused to adopt a "separate and distinct" exception to the "fireman's rule" (Cooper v. City of New York, 81 N.Y.2d 584, 589-591, 601 N.Y.S.2d 432, 619 N.E.2d 369).

Supreme Court also properly dismissed plaintiffs' respective causes of action under General Municipal Law § 205-e. Although that section, as amended effective July 17, 1992 (L.1992, ch. 474, § 2), appears to apply to those causes of action, that issue was not considered by Supreme Court. We affirm the dismissal of those causes of action in the exercise of our power to search the record under the law as it exists at the time of appeal (see, Wawrzyniak v. Sherk, 170 A.D.2d 972, 973, 566 N.Y.S.2d 138; see also, Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, 28-29, 475 N.Y.S.2d 821, 464 N.E.2d 125; Regan v. Coldwell...