Ruotolo v. State

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: BELLACOSA; KAYE
• Citation: Ruotolo v. State, 609 N.Y.S.2d 148, 83 N.Y.2d 248, 631 N.E.2d 90 (N.Y. 1994)
• Decision Date: 17 February 1994
• Docket Number: No. 70726,70726
• Parties: , 631 N.E.2d 90 Mary Beth O. RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, Deceased, et al., Respondents, v. STATE of New York, Appellant. (Claim) Court of Appeals of New York

Page 148

609 N.Y.S.2d 148

83 N.Y.2d 248, 631 N.E.2d 90

Mary Beth O. RUOTOLO, as Administratrix of the Estate of Thomas Ruotolo, Deceased, et al., Respondents, v. STATE of New York, Appellant.

(Claim No. 70726.) Court of Appeals of New York.

Feb. 17, 1994.

G. Oliver Koppell, Attorney-General, Albany (Michael S. Buskus, Jerry Boone and Peter H. Schiff, of counsel), for appellant.

Lysaght, Lysaght & Kramer, P.C., Lake Success (Joseph L. Decolator, Denis J. Jean and Raymond E. Kerno, of counsel), for respondents.

OPINION OF THE COURT

BELLACOSA, Judge.

Ten years ago, New York City Police Officer Thomas Ruotolo was killed in the line of duty by a parolee. The officer's widow and two other officers wounded in the incident have tried to sue the State for negligence. The claims rest on allegations that the State Parole Board wrongfully allowed the assailant to remain on parole. The first series of this litigation ended with the claims ruled out of court (Ruotolo v. State of New York, 141 Misc.2d 111, 532 N.Y.S.2d 668, affd. 157 A.D.2d 452, 549 N.Y.S.2d 22, lv. denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619 rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 987, 559 N.E.2d 681).

The Legislature, in enactments reactive to the court rulings, persisted in trying to allow the claims to be heard in the Court of Claims. The State challenges the authority and power of the Legislature to enact chapter 474 of the Laws of 1992, which purports to allow the claims pursuant to General Municipal Law § 205-e to be pressed retroactively by the persevering widow and the other two officers.

When this Court entered its order denying leave to appeal in the first round of litigation, the Legislature did not become forever barred from exercising its substantial powers, including that of surrendering some of the State's own vested rights with respect to the matter. To be sure, that power is not absolute and is constitutionally circumscribed. But when the Legislature finds and demonstrates, as it did here, that there is an adequate moral obligation as the basis for retroactively remedying the particular restrictions of General Municipal Law § 205-e, which otherwise barred the statutory claims advanced by claimants Mary Beth Ruotolo, Tanya Brathwaite and Hipolito Padilla in this matter, the Legislature's power and exercise of that public policy choice should not be nullified by the courts.

We agree with the Appellate Division that the claims should go forward in the Court of Claims, as the Legislature has prescribed, and that they should be resolved on their merits, and thus affirm the order of the Appellate Division and answer its certified question in the affirmative.

I.

In the early evening of February 14, 1984, New York City Police Officer Thomas Ruotolo, and his partner, Officer Tanya Brathwaite, responded to a radio report that there had been a robbery of a moped at a gas station in the Bronx. As the officers alighted from their patrol car, George Agosto, standing next to a moped, immediately opened fire on the officers with a handgun, killing Officer Ruotolo and seriously wounding Officer Brathwaite. Off-duty Police Officer Hipolito Padilla, who tried to assist, was also seriously wounded in an exchange of shots with Agosto. The assailant was ultimately arrested after also being wounded.

At the time, Agosto was on parole from a manslaughter conviction. He had been released in 1982, but was arrested on January 30, 1983 on charges of possession of a handgun and driving without a license. This arrest was reported to the Parole Board, but the charges were ultimately dismissed and Agosto was released. On July 5, 1983, Agosto was again arrested on charges of burglary and resisting arrest. The Division of Parole was notified. On August 4, 1983, Agosto was sentenced to four months in jail on a 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 even though Agosto was considered an absconder after it was discovered he had vacated his last known address, none of this information was reported by the parole office to the Parole Board. No parole violation warrant was ever issued against him prior to the shooting of the police officers in February 1984.

II.

The claimants, Ruotolo's widow, Mary Beth Ruotolo, and wounded Officers Hipolito Padilla and Tanya Brathwaite, sued in the Court of Claims on March 25, 1985, naming the State of New York as the sole defendant. Their theory was that had the Parole Board been properly notified, it would have had to revoke Agosto's parole and he would not have been free to inflict the tragic harms he did. The claims were rooted in common-law negligence and negligence based on the alleged violation of the Executive Law § 259-i(3) and 9 NYCRR 8004.2.

The Court of Claims in 1988 granted summary judgment to the State. It ruled that pursuant to Santangelo v. State of New York, 127 A.D.2d 647, 511 N.Y.S.2d 666, affd. 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770 [Santangelo "I"] and the "Firefighter's Rule" which Santangelo "I" had extended to the police, the claims for common-law negligence were barred by public policy because the injuries were sustained as part of the officers' inherently hazardous employment. Further, even viewing defendant's alleged failure to revoke Agosto's parole as a failure to enforce the Executive Law and 9 NYCRR 8004.2, claimants failed to state a claim because neither Executive Law § 259-i(3) nor 9 NYCRR 8004.2 created an independent duty in favor of the claimants which could support liability and circumvent Santangelo's bar (Ruotolo "I" v. State of New York, 141 Misc.2d 111, 532 N.Y.S.2d 668, supra ).

On July 12, 1989 and during claimants' appeal, the Legislature enacted section 205-e of the General Municipal Law, creating a claim for police officers injured in the line of duty. Pursuant to the amendment, police officers or their estate representatives had a right to recover for injuries which occurred directly or indirectly as a result of any neglect, omission, willful or culpable negligence by any person under the requirements of any applicable statute, order, or requirements of Federal, State, or county law (see, General Municipal Law § 205-e [L.1989, ch. 346]. General Municipal Law § 205-e was enacted to bring police officers into parity with firefighters (L.1989, ch. 346; see, Mem of Senator Skelos, 1989 NY Legis Ann. at 180), who were granted recovery rights against property owners whose negligence with respect to fire code violations caused injury (see, General Municipal Law § 205-a [L.1935, ch. 800, § 2].

The Appellate Division nevertheless affirmed the dismissal of the original claims by the Court of Claims. The Appellate Division held the new General Municipal Law § 205-e inapplicable, since it was not intended to be retroactively applied (Ruotolo "I" v. State of New York, 157 A.D.2d 452, 549 N.Y.S.2d 22, supra ). This Court denied leave on April 26, 1990, and further rejected a motion for reargument in June of 1990 (Ruotolo "I" v. State of New York, lv. denied 75 N.Y.2d 710, 556 N.Y.S.2d 247, 555 N.E.2d 619, rearg. denied 76 N.Y.2d 773, 559 N.Y.S.2d 987, 559 N.E.2d 681, supra ).

The Legislature thereafter amended General Municipal Law § 205-e's enacting legislation (L.1989, ch. 346) to include a new effective date, which expressed that the remedy should be applied retroactively to revive actions dismissed on or after January 1, 1987 (L.1990, ch. 762). Claimants promptly moved for reargument in the Court of Claims. That relief was denied on July 31, 1991, on the ground that while General Municipal Law § 205-e was retroactively applicable, it still was not applicable here, because section 205-e only " 'impose[s] clear duties on property owners and [is] intended to benefit firefighters, police officers and any other person who may enter upon premises subject to regulation' " (Ruotolo "II" v. State of New York, 151 Misc.2d 820, 828, 574 N.Y.S.2d 904 [quoting Mem of State Executive Dept., 1989 McKinney's Session Laws of NY, at 2141 (emphasis added) ], revd. 187 A.D.2d 160, 593 N.Y.S.2d 198).

The Legislature, for a third time, amended General Municipal Law § 205-e, again during the pendency of appeal. This time, it provided a right of action to police officers injured in the line of duty, irrespective of whether they were injured as a consequence of a statutory violation respecting the safe maintenance and control of premises (L.1992, ch. 474). It is that precise statute that is now under review on this appeal.

The Appellate Division concluded that there was no impediment, under the circumstances presented here, to the Legislature providing a procedural remedy for these claims to be pursued in the Court of Claims. That Court noted that the State, acting through the Legislature in this specific regard, had found and recited a moral obligation that extended to the protection of the police officers acting in the line of duty that justified granting the reasonable procedural redress and access to the judicial process with respect to an alleged failure by the State to fulfill its obligations to those officers and their families. The Appellate Division thus reversed the Court of Claims, granted claimants' reargument motion and denied the State's dismissal motion for summary judgment. It noted that "[t]he Legislature could not have been more specific," and held that the Legislature had effectively clarified General Municipal Law § 205-e to allow the claimants' right to sue, and remanded the matter to the Court of Claims (Ruotolo "II" v. State of New York, 187 A.D.2d 160, 170, 593 N.Y.S.2d 198, supra; see also, Santangelo "II" v. State of New York, 149 Misc.2d 171, 563 N.Y.S.2d 597, revd. 193 A.D.2d 25, 601 N.Y.S.2d 305).

The threshold question of this appeal is whether the claims under General Municipal Law §...