Foley v. City of Buffalo

• Decision Date: 11 March 1994
• Citation: 202 A.D.2d 1050,609 N.Y.S.2d 464
• Parties: Joseph E. FOLEY, Appellant, v. The CITY OF BUFFALO, The Buffalo Fire Department and Norman Schwendler, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 464

609 N.Y.S.2d 464

202 A.D.2d 1050

Joseph E. FOLEY, Appellant, v. The CITY OF BUFFALO, The Buffalo Fire Department and Norman Schwendler, Respondents.

Supreme Court, Appellate Division, Fourth Department.

March 11, 1994.

Casey, Sanchez, Amigone & Kelleher, Buffalo, by Kimberlee Danieu, for appellant.

Laurence K. Rubin, Corp. Counsel (Susan P. Wheatley, of counsel), Buffalo, for respondents.

Before BALIO, J.P., and LAWTON, DOERR, DAVIS and BOEHM, JJ.

MEMORANDUM:

Supreme Court did not abuse its discretion in denying plaintiff's cross motion, made practically on the eve of trial, for leave to serve an amended complaint. Although leave is to be "freely given" (CPLR 3025[b], it should be denied where, as here, the proposed amendment "plainly lacks merit" (Mathiesen v. Mead, 168 A.D.2d 736, 563 N.Y.S.2d 887). Plaintiff may not recover for injuries resulting from the special risks inherent in the duties he was engaged to perform as a firefighter (see, Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369; Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770; Kenavan v. City of New York, 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872; Morrisey v. County of Erie, 198 A.D.2d 839, 603 N.Y.S.2d 1009; Damiani v. City of Buffalo, 198 A.D.2d 814, 603 N.Y.S.2d 1006). Furthermore, contrary to plaintiff's contention, the proposed amendment advances a new theory of liability predicated on defective equipment and defective design. Defendants would suffer substantial prejudice if plaintiff's cross motion to amend the complaint were granted (see, F.G.L. Knitting Mills v. 1087 Flushing Prop., 191 A.D.2d 533, 594 N.Y.S.2d 820; Mathiesen v. Mead, supra ). In light of our determination, we do not address the additional grounds advanced by defendants to support the denial of plaintiff's cross motion.

Additionally, there is no merit to plaintiff's contention that Supreme Court erred in granting defendants' motion for summary judgment dismissing the first cause of action. Contrary to plaintiff's contention, that cause of action is barred by the "fireman's rule" (see, Cooper v. City of New York, supra; Santangelo v. State of New York, supra; Morrisey v. County of Erie, supra; Clark v. DeJohn, 198 A.D.2d 818, 603 N.Y.S.2d 1008; Damiani v. City of Buffalo, supra ).

Order unanimously affirmed without costs.