Ruocco v. New York City Transit Authority

• Decision Date: 03 May 1994
• Citation: 204 A.D.2d 76,611 N.Y.S.2d 513
• Parties: Robert RUOCCO, et al., Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 513

611 N.Y.S.2d 513

204 A.D.2d 76

Robert RUOCCO, et al., Plaintiffs-Respondents, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 3, 1994.

Before SULLIVAN, J.P., and ELLERIN, ROSS, ASCH and TOM, JJ.

MEMORANDUM DECISION.

Order Supreme Court, New York County (Alfred Toker, J.), entered February 4, 1993, which denied the motion of the defendant-appellant New York City Transit Authority for summary judgment pursuant to CPLR 3212, unanimously reversed, on the law, the defendant-appellant's motion is granted and the complaint is hereby dismissed, without costs.

Injured plaintiffs Robert Ruocco and Michael Falcone are police officers. The officers allegedly sustained injuries when they slipped and fell down a flight of stairs leading into the subway station located at the corner of Essex and Delancey Streets in Manhattan. The officers were responding to a radio call that an officer was in need of assistance in the subway station. The complaint alleged that after they fell the officers saw that the stairs were wet and that there was a New York City Transit Authority employee near the bottom of the steps with a mop and a pail of water.

In the order appealed the trial court concluded that this case came within the so called "separate and distinct" exception to the fireman's rule. This exception, as articulated in Starkey v. Trancamp Contr. Corp., 152 A.D.2d 358, 361, 548 N.Y.S.2d 722 provides that the application of the "fireman's rule" to police officers, should depend on the degree of separation between the negligent act directly causing the injury and the act which occasioned the police officer's services. In Starkey, supra, the court declined to apply the fireman's rule to preclude the officer's claim for personal injuries, because the injury sustained by the police officer, as a result of a defective condition at a construction site, was separate and distinct from the reason for his being at the site.

That exception, however, has since been abrogated supra, in Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369. In Cooper, a police officer was injured when the vehicle in which she was riding as a "recorder" struck another police vehicle while responding to an "officer in need of assistance emergency call". The Court of Appeals affirmed this Court's order (182 A.D.2d 350, 582 N.Y.S.2d 394) which reversed the judgment entered against the City upon a jury verdict and dismissed the complaint pursuant to Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770. In Santangelo, the Court held that police officers, like firefighters cannot recover for injuries resulting from the special risks inherent in the duties they are engaged to perform (id. at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770).

The Court in Cooper, supra, at 590, 601 N.Y.S.2d 432, 619...