Ruotolo v. State, No. 70726

• Decision Date: 04 February 1993
• Docket Number: No. 70726
• Citation: 593 N.Y.S.2d 198,187 A.D.2d 160
• Parties: Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants-Appellants, v. The STATE of New York, Defendant-Respondent. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 198

593 N.Y.S.2d 198

187 A.D.2d 160

Mary Beth O'Neill RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, deceased, Hipolito Padilla and Tanya Brathwaite, Claimants-Appellants, v. The STATE of New York, Defendant-Respondent. (Claim No. 70726.)

Supreme Court, Appellate Division First Department.

Feb. 4, 1993.

Joseph L. Decolator, of counsel (Raymond E. Kerno, with him on the brief, Lysaght, Lysaght & Kramer, P.C.), for claimants-appellants.

Michael S. Buskus, of counsel (Peter H. Schiff, with him on the brief, Robert Abrams), for defendant-respondent.

Before WALLACH, J.P., and KUPFERMAN, ASCH and RUBIN, JJ.

KUPFERMAN, Justice.

There is a long-standing common law rule that firefighters who are injured while fighting a fire cannot recover against a property owner or occupant whose negligence in maintaining the premises caused such injuries. Over the years, this so-called "fireman's rule" has been premised on various grounds, including the firefighters' status as licensees, their assumption of the risks entailed in fighting fires and, most recently, public policy.

In 1935, the Legislature, in an effort to ameliorate this rule, enacted General Municipal Law § 205-a, which provided a cause of action for the injury to or death of a firefighter in the line of duty caused "directly or indirectly as a result of any neglect, omission, wilful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state or city governments or of any and all their departments" (L.1935, ch. 800, § 2).

Inasmuch as the stated intention of the Legislature was to create a cause of action under the prescribed circumstances where otherwise there would be none, the statute is to be construed liberally and the Legislature "may be considered as having intended to impose liability in any case where there is any practical or reasonable connection between a violation and the injury or death of a fireman. (See, Daggett v. Keshner, 284 App.Div. 733 [Breitel, J.].)" (McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 195, 271 N.Y.S.2d 698, affd 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289). Nonetheless, the section's history has been held to compel the conclusion that its scope is limited to property owners and the maintenance of premises in a safe condition for firefighters and may include, although it is not limited to violations of fire preventive regulations (Kenavan v. City of New York, 70 N.Y.2d 558, 566-67, 523 N.Y.S.2d 60, 517 N.E.2d 872; Lusenskas v. Axelrod, 183 A.D.2d 244, 592 N.Y.S.2d 685).

Despite the enactment of § 205-a, the original fireman's rule has continued to be applied to police officers on the public policy ground that, "[l]ike firefighters, police are the experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence, and like firefighters they generally cannot recover damages for negligence in the very situations that create the occasion for their services." (Santangelo v. State of New York, 71 N.Y.2d 393, 397, 526 N.Y.S.2d 812, 521 N.E.2d 770). It was in this context that this claim originally arose but, as we shall see, the legal landscape has since been changed.

At approximately 6:40 p.m. on the evening of February 14, 1984 (St. Valentine's Day), as New York City Police Officer Thomas Ruotolo and his partner Officer Tanya Brathwaite were responding to a radio report that there had been a robbery of a moped at gunpoint, they observed one George Agosto near a moped at a gas station at 900 East 149th Street in the Bronx. As the officers got out of their patrol car, Agosto opened fire on them with a handgun, killing Officer Ruotolo and seriously wounding Officer Brathwaite. An off-duty police officer Hipolito Padilla came to their assistance and was also seriously wounded in an exchange of shots with Agosto who was also wounded and arrested.

At the time, Agosto (spelled Acosto in one report), who was also known as Santiago Segarra, was on parole from a March 26, 1979 manslaughter conviction, having been released sometime after August 23, 1982. After his release, Agosto was arrested on January 30, 1983 on charges of possession of a handgun and driving without a license. This rearrest was reported to the Parole Board with a recommendation that no action be taken pending court consideration. On May 9, 1983, the weapons charge was dismissed against Agosto and there is no record of any disposition of the driving infraction. Agosto was again arrested on July 5, 1983 on charges of burglary and resisting arrest. Although he used the alias Hector Rivera, his true identity was ascertained and notices were sent to the Division of Parole. On August 4, 1983, Agosto was sentenced to four months in jail upon his conviction of the reduced charge of criminal mischief and he was released from Rikers Island on September 21, 1983. Although the police, prosecutor, court and parole authorities were aware of this arrest and conviction and Agosto was considered an absconder after it was ascertained in December 1983 that he was no longer living at his last known address, this information was not reported to the Parole Board and no parole violation warrant was ever issued against him prior to the St. Valentine's Day shootout.

The claim at bar was jointly filed on March 25, 1985, seeking a total of $200 million for personal injuries and, in the case of Officer Ruotolo, for wrongful death. Claimants allege that the State through the Parole Board and its employees was negligent in not revoking Agosto's parole and taking steps to incarcerate him, thus violating the relevant statutes, rules, regulations and practices resulting in the damages claimed. Issue was joined in June 1985 and subsequently defendant moved, inter alia, for summary judgment dismissing the claim, which relief was granted in a decision of the Court of Claims (Gerard M. Weisberg, J.), dated September 2, 1988 (141 Misc.2d 111, 532 N.Y.S.2d 668), holding that claimants' theory of negligent supervision was barred on public policy grounds by the original fireman's rule (citing Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra ), and that the regulation allegedly violated by the failure to report the parole violation to the Parole Board runs in favor of the Board and creates no independent duty or cause of action in favor of claimants (citing Tarter v. State of New York, 68 N.Y.2d 511, 510 N.Y.S.2d 528, 503 N.E.2d 84, and Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128).

On July 12, 1989, while claimants' appeal to this Court was pending, the Legislature amended the General Municipal Law by adding a new section 205-e, which granted police officers or their representatives the right to maintain an action to recover damages for personal injury or death notwithstanding the fireman's rule. (L.1989, ch. 346). However, this court, in affirming the Court of Claims' decision, did not reach the question of that statute's applicability in this case inasmuch as such statute could not be applied retroactively citing Murphy v. Board of Education, 104 A.D.2d 796, 480 N.Y.S.2d 138, affd for reasons stated at App.Div. 64 N.Y.2d 856, 487 N.Y.S.2d 325, 476 N.E.2d 651. (Ruotolo v. State of New York, 157 A.D.2d 452, 549 N.Y.S.2d 22, leave to appeal denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619, motion for reargument denied 76 N.Y.2d 773, 559 N.Y.S.2d 987, 559 N.E.2d 681.)

Thereafter, on July 22, 1990, the Legislature again amended the statute to, inter alia, revive every cause of action for the personal injury or wrongful death of a police officer which was pending or was dismissed on or after January 1, 1987 (L.1990, ch. 762). The memorandum in support of the bill stated that despite enactment of Chapter 346, there had been conflicting court interpretations of whether injuries and deaths that occurred prior to its effective date could be redressed and that by declaring Chapter 346 remedial, its purpose was to ensure that actions by police officers or the representatives of police officers who were killed or injured prior to July 12, 1989, whose causes of action were not time-barred or finally adjudicated could be brought under the new law (Memorandum of State Executive Department, McKinney's 1990 Session Laws, p. 2494).

By notice of motion dated February 7, 1991, claimants moved in the Court of Claims to reargue (denominated a motion to renew) defendant's motion for summary judgment and for vacatur of the court's prior order dismissing their claims. By order entered August 8, 1991, the Court of Claims (Gerard M. Weisberg, J.), denied claimants' motion. (151 Misc.2d 820, 574 N.Y.S.2d 904.) It disagreed in part with the decision dismissing the revived claim in Santangelo v. State of New York, 149 Misc.2d [187 A.D.2d 165] 171, 563 N.Y.S.2d 597, where the court (Louis C. Benza, J.) found that the State had acquired final, vested rights by virtue of the first judgment dismissing the claim (129 Misc.2d 898, 494 N.Y.S.2d 49, affd 127 A.D.2d 647, 511 N.Y.S.2d 666, affd71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra ) and that the retroactive abrogation of vested rights is offensive to Article I, section 6 of the State Constitution. That decision, referred to as Santangelo II is presently on appeal to the Second Department and is scheduled to be heard shortly.

In so ruling, the court nevertheless found that, although claimants were clearly timely within section 205-e as amended, contrary to the holding in Brown v. Ellis, 145 Misc.2d 1085, 548 N.Y.S.2d 841, affd sub nom Brown v. Harrington, 150 Misc.2d 375, 575 N.Y.S.2d 622, the legislative history of the section confirms that it is to be construed in pari materia with section 205-a and that the statute and regulation allegedly violated are not ones which deal with...