Malone v. Jacobs
| Decision Date | 07 June 1982 |
| Citation | 450 N.Y.S.2d 885,88 A.D.2d 927 |
| Parties | Daniel R. MALONE et al., Respondents, v. Stephen A. JACOBS et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Pizzitola & Inzerillo, Lake Ronkonkoma (Richard J. Inzerillo, Lake Ronkonkoma, of counsel), for appellants.
Bernard Braun, P. C., Commack, for respondents.
Before DAMIANI, J. P., and MANGANO, GULOTTA and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendants from an order of the Supreme Court, Suffolk County, dated November 23, 1981, which denied their motion to dismiss plaintiffs' complaint for failure to state a cause of action and, alternatively, for summary judgment.
Order reversed, on the law, with $50 costs and disbursements, defendants' motion is deemed to include a request, pursuant to CPLR 3025 (subd. ), for leave to amend their answer to assert the exclusivity of the Volunteer Firemen's Benefit Law remedy as an affirmative defense; said request is granted, summary judgment is granted and the complaint is dismissed.
This is an action to recover damages for personal injuries sustained by Daniel Malone (plaintiff), and by his wife Linda to recover for loss of consortium, etc., arising out of an automobile accident in which the automobile Daniel Malone was driving was struck by an automobile driven by defendant Stephen Jacobs and owned by his father, defendant John Jacobs. It is conceded that at the time the accident happened both plaintiff and defendant Stephen Jacobs were volunteer members of the Deer Park Fire Department and were independently proceeding in their own vehicles to the firehouse in response to a fire alarm.
Volunteer firemen act within the scope and course of their duties when responding to a fire or other emergency call in their own vehicles or by other means of transportation (Opns. Atty. Gen., 51 St. Dept. Rep. 105, 106). Section 19 of the Volunteer Firemen's Benefit Law provides in relevant part that:
"benefits provided by this chapter shall be the exclusive remedy of a volunteer fireman, or his spouse * * * entitled to recover damages, at common law or otherwise, for or on account of any injury to a volunteer fireman in line of duty * * * as against * * * any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted".
Furthermore, section 20 of that law incorporates by reference subdivision 6 of section 29 of the Workers' Compensation Law, which provides that compensation is the exclusive remedy of an employee injured by the negligence or wrong of another in the same employ.
Since...
To continue reading
Request your trial
-
Lindner v. Kew Realty Co.
...an action virtually at any time (Murray v. City of New York, 43 N.Y.2d 400, 406-407, 401 N.Y.S.2d 773, 372 N.E.2d 560; Malone v. Jacobs, 88 A.D.2d 927, 450 N.Y.S.2d 885). While plaintiffs may justifiably claim surprise at the belated raising of this affirmative defense, their previous ignor......
-
Heritage v. Van Patten
...Lafata, 4 N.Y.2d 585, 176 N.Y.S.2d 622, 152 N.E.2d 59; Rauch v. Jones, 4 N.Y.2d 592, 176 N.Y.S.2d 628, 152 N.E.2d 63; Malone v. Jacobs, 88 A.D.2d 927, 450 N.Y.S.2d 885; see Sikora v. Keillor, 13 N.Y.2d 610, 240 N.Y.S.2d 601, 191 N.E.2d 88). "The statute, having deprived the injured employee......
-
Power v. Frasier
...plaintiff, his coemployee, was injured (see Matter of Lawton v. Eastman Kodak Co., 206 A.D.2d 813, 616 N.Y.S.2d 412 ; Malone v. Jacobs, 88 A.D.2d 927, 450 N.Y.S.2d 885 ; Carraciolo v. Furman, 29 A.D.2d 903, 287 N.Y.S.2d 940 ; Rozelle v. Robertson, 29 A.D.2d 589, 285 N.Y.S.2d 449 ). In oppos......
-
Pascavage v. City of Cohoes
...826); to assert the defense of exclusivity of remedy under the Workers' Compensation Law in a personal injury action (Malone v. Jacobs, 88 A.D.2d 927, 450 N.Y.S.2d 885); and, even after trial in a construction contract case, to permit plaintiff to allege a cause of action under the trust pr......