Monteferrante v. New York City Fire Dept.

• Decision Date: 09 May 1978
• Citation: 404 N.Y.S.2d 629,63 A.D.2d 576
• Parties: Helen MONTEFERRANTE, Plaintiff-Appellant, v. NEW YORK CITY FIRE DEPARTMENT et al., Defendants-Respondents, and The Uniform Fire Fighters Association, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 629

404 N.Y.S.2d 629

63 A.D.2d 576

Helen MONTEFERRANTE, Plaintiff-Appellant, v. NEW YORK CITY FIRE DEPARTMENT et al., Defendants-Respondents and The Uniform Fire Fighters Association, Defendant.

Supreme Court, Appellate Division,First Department.

May 9, 1978.

R. Sugerman, New York City, for plaintiff-appellant.

L. K. Sheridan, New York City, for defendants-respondents.

Before LUPIANO, J. P., and LANE, MARKEWICH and SANDLER, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered July 7, 1976, granting the motion by defendants New York City Fire Department and New York City Fire Department Pension Fund to dismiss the complaint against them, affirmed, without costs and disbursements.

Our affirmance is based on the persuasive and well-reasoned opinion of Special Term. However, the perception by the dissent that Special Term erred in viewing the motion by defendants the New York City Fire Department and New York City Fire Department Pension Fund as one for summary judgment and that in consequence the order appealed from should be reversed, warrants the following observations. The record discloses that the notice of motion is denominated as one "For Summary Judgment." Further, the affidavit in support of such motion is similarly entitled "Affidavit In Support Of Defendants' Motion For Summary Judgment." The affiant in the body of the affidavit characterizes the motion as one "for summary judgment." However, in the body of the "Notice Of Motion For Summary Judgment," movants asserted that they sought an order pursuant to CPLR 3211(a)(7) dismissing the complaint. Extrinsic documentary evidence relied upon by movants in their moving affidavit gives credence to the summary judgment relief sought by movants. In addition, movants criticize the complaint as legally insufficient. Of critical import, plaintiff opposed the motion fully and patently cognizant that it was one for summary judgment which had also raised the ground of insufficiency under CPLR 3211(a)(7). ^* The motion was clearly and properly treated by Special Term in its hybrid aspect, that is, as one for summary judgment and for dismissal under CPLR 3211(a)(7).

While we echo the plaint of the dissent that "the inescapable fact is that as a result of a sad combination of circumstances, the widow of a fireman has been deprived of that security which, it may be reasonably assumed, he spent his working life in large part to secure for her," that plaint, although equally applicable in its general aspect to unknown numbers of widows, may not serve as a predicate for legally casting movants in liability to plaintiff.

All concur except SANDLER, J., who dissents in the following memorandum:

SANDLER, Justice (dissenting):

Plaintiff, widow of a deceased New York City fireman, appeals from an order of Special Term granting, under CPLR 3211(a)(7) and CPLR 3212, a motion by the defendants New York City Fire Department and New York City Fire Department Pension Fund to dismiss the third cause of action.

The essential allegations of the dismissed cause of action are:

1. Upon entering city service as a fireman the plaintiff's deceased husband entered into a contract for employment with the defendants, which included certain pension rights for himself and his beneficiaries.

2. The deceased became seriously ill with a terminal condition, which was known to or should have been known by the defendants who nevertheless ordered the deceased returned to duty.

3. In returning the deceased to duty and not retiring him the defendants breached the express and implied provisions of their contract with the deceased which required that the deceased would only be returned to duty if healthy.

4. The defendants permitted the deceased to return to duty without advising him of the loss of pension rights that would result should he die within 30 days after the effective date of his retirement.

5. The plaintiff, widow of the deceased fireman, was a third party beneficiary of his contract with the defendants.

Although not expressly spelled out in the third cause of action, it is adequately indicated elsewhere in the complaint that a time came following his return to duty when the deceased filed retirement papers but died less than 30 days after the effective date of retirement. The result was to deny plaintiff the rights she otherwise would have had to receive an allowance payable to her for her lifetime or its actuarial equivalent. Administrative Code of City of New York, Title B, Article 1, § B19.

The defendants moved for an order pursuant to CPLR 3211(a)(7) dismissing the third cause of action for alleged legal insufficiency. Although the motion was expressly for relief pursuant to CPLR 3211(a)(7) it was designated a notice of motion for summary judgment and accompanied by an affidavit of an Assistant Corporation Counsel which, among other things, alleged that the deceased had been returned to duty following a letter from his personal neurosurgeon to the effect that he could be restored to light duty, a copy of which was annexed as an exhibit.

Plaintiff's counsel filed an answering affidavit in which, observing that the notice had been designated as one for summary judgment, he clearly stated his understanding that it was a motion brought under CPLR 3211(a)(7) "seeking dismissal because the complaint fails to state a cause of action." Although parts of his affidavit include an elaboration of factual allegations in the complaint, it was basically a lawyer's affidavit in response to a motion to dismiss for failure to state a cause of action, not a factual response to a motion for summary judgment.

The opinion at Special Term opened with the statement that the motion to dismiss for failure to state a cause of action is granted. The legal analysis that followed relied in substantial part on the factual conclusion that "the decedent's own physician found him...