Schiavone v. City of New York

• Decision Date: 20 October 1998
• Citation: 703 N.E.2d 256,680 N.Y.S.2d 445,92 N.Y.2d 308
• Parties: , 703 N.E.2d 256, 1998 N.Y. Slip Op. 8883 James SCHIAVONE, Jr., Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 445

680 N.Y.S.2d 445

92 N.Y.2d 308, 703 N.E.2d 256, 1998

N.Y. Slip Op. 8883

James SCHIAVONE, Jr., Appellant, v. CITY OF NEW YORK, Respondent.

Court of Appeals of New York.

Oct. 20, 1998.

Moskowitz, Passman & Edelman, New York City (Jeffrey M. Motelson, of counsel), for appellant.

Michael D. Hess, Corporation Counsel of New York City (Barry P. Schwartz, Leonard Koerner and Janet L. Zaleon, of counsel), for respondent.

OPINION OF THE COURT

WESLEY, Judge.

This case requires us to examine the scope of the revival provision of General Municipal Law § 205-e as applied to an action, involving an automobile accident occurring prior to the 1992 amendment to the statute. The lawsuit was not commenced until October 1994. We hold that both the plain language of the statute and its legislative purpose to provide a broad revival remedy support the plaintiff's position that his action is timely.

I.

Officer James Schiavone was injured in an automobile accident on December 7, 1991 while on police patrol in the Bronx. Schiavone was a passenger in a patrol car, which had its emergency lights and sirens operating when it entered an intersection and struck a civilian vehicle making a left turn in the path of the patrol car. Without filing a notice of claim, plaintiff commenced this personal injury action against the City by filing a summons and complaint on October 26, 1994. He alleged a cause of action under General Municipal Law § 205-e. Specifically, plaintiff asserted that his fellow officer had been negligent in operating the vehicle and had failed to comply with Vehicle and Traffic Law § 1144(b); §§ 1140, and 1180, as well as sections 4-02, 4-06 and 4-07 of the New York City Traffic Rules and Regulations (34 RCNY).

After the City answered, plaintiff moved to amend the complaint to reflect the correct date of the accident. ¹ The City cross-moved to dismiss the complaint, or in the alternative for summary judgment, on the grounds that the action was untimely and that the complaint failed to state a cause of action. The City argued that the action had been commenced after the required 1 year and 90 day period in General Municipal Law § 50-i, and that the revival provision of General Municipal Law § 205-e was inapplicable. The City further contended that the complaint did not specify the violation of sufficiently particularized statutes or regulations to support an action under section 205-e, and that no cause of action could be brought under the statute based on the alleged misconduct of a fellow officer.

Supreme Court denied the City's cross motion, holding that the action had been timely commenced under the plain language of General Municipal Law § 205-e. The court noted that the statute provided for the revival of non-premises-related accident claims accruing prior to June 30, 1992, so long as they were brought on or before June 30, 1995. The court also rejected the City's alternative argument for dismissal, finding "no authority" for the City's arguments that violations of the designated statutes and regulations would not support a cause of action under section 205-e. The court did not address the City's argument that an action could not be based on the negligence of a fellow officer.

The Appellate Division reversed, reaching only the timeliness issue. The Court held that "[t]he revival of claims arising under [General Municipal Law § 205-e] applies only to claims that accrued between January 1, 1987, and July 12, 1989" (240 A.D.2d 723, 723-724, 660 N.Y.S.2d 997). We granted plaintiff's motion for leave to appeal, and now reverse.

II.

General Municipal Law § 205-e was originally enacted in 1989 for the express purpose of "mitigat[ing] the effect of the common law 'fireman's rule' " as applied to police officers (Mem. of State Exec. Dept., L.1989, ch. 346, 1989 McKinney's Session Laws of N.Y., at 2140). ² A similar provision protecting firefighters has been in existence since 1935; however, it was not until this Court's 1988 decision in Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, extending the common-law firefighter's rule to police officers, that the need for similar legislation applying to police officers became apparent. For example, in Matter of Ruotolo v. State of New York (Ruotolo I), 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, the Court of Claims dismissed an action brought by a police officer to recover for the State's alleged negligence in failing to jail a parolee, citing Santangelo (see also, Wynne v. Tullman, 151 A.D.2d 476, 542 N.Y.S.2d 266; Benjamin v. Sodus Cold Stor. Co., 149 A.D.2d 937, 540 N.Y.S.2d 70; O'Connor v. O'Grady, 143 A.D.2d 738, 533 N.Y.S.2d 300). Section 205-e was added in order to abrogate these decisions, by "provid[ing] police officers and their representatives with the same right accorded firefighters and their representatives" under General Municipal Law § 205-a (Mem. of State Exec. Dept., op. cit., 1989 McKinney's Session Laws of N.Y., at 2141; see generally, Desmond v. City of New York, 88 N.Y.2d 455, 462-463, 646 N.Y.S.2d 492, 669 N.E.2d 472).

Despite the evident legislative goal, some courts initially held that section 205-e did not apply retroactively (see, e.g., Ruotolo I, supra, 157 A.D.2d 452, 549 N.Y.S.2d 22, affg. 141 Misc.2d 111, 532 N.Y.S.2d 668). In order to "ensure that causes of action not time-barred or finally adjudicated can be brought under the new law" (Mem. of State Exec. Dept., L.1990, ch. 762, 1990 McKinney's Session Laws of N.Y., at 2494, 2495), the statute was amended by chapter 762 of the Laws of 1990.

The 1990 amendment declared the 1989 enactment remedial; it also added a revival provision that explicitly allowed an action to be brought for any claim that was pending, dismissed, or that would have been actionable, on or after January 1, 1987 had the statute been in effect, so long as suit was commenced on or before June 30, 1991. The statute also explicitly exempted these actions from any notice of claim requirements, including General Municipal Law §§ 50-e and 50-i. The Legislature noted that the bill was necessary to deal with "conflicting court interpretations of whether injuries and deaths that occurred prior to the effective date of [the original enactment] can be redressed as a result of its passage" (id., at 2494-2495; see generally, Matter of Ruotolo v. State of New York [Ruotolo II], 83 N.Y.2d 248, 257-258, 609 N.Y.S.2d 148, 631 N.E.2d 90).

Thus, as originally enacted the revival provision of General Municipal Law § 205-e allowed all plaintiffs whose claims fell within the window period of January 1, 1987 to July 12, 1989 (the effective date of the original enactment) to bring an action to recover for their injuries, without complying with sections 50-e and 50-i of the General Municipal Law, so long as the action was commenced on or before June 30, 1991. However, the 1989 amendment did not end the Legislature's efforts.

In 1992, it amended section 205-e for the second time, to provide that an officer would have a right of action for injuries sustained "in the discharge or performance at any time or place of any duty imposed [by law, etc.]" (General Municipal Law § 205-e[1], italicized material added by L.1992, ch. 474). This amendment was again precipitated by a number of lower court decisions that had limited the substantive scope of General Municipal Law § 205-e to premises-related accidents (see, e.g., Sciarrotta v. Valenzuela, 182 A.D.2d 443, 581 N.Y.S.2d 351; Buckley v. City of New York, 176 A.D.2d 207, 574 N.Y.S.2d 329, lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 192, 592 N.E.2d 800; Matter of Ruotolo v. State of New York [Ruotolo II], 151 Misc.2d 820, 574 N.Y.S.2d 904, revd. 187 A.D.2d 160, 593 N.Y.S.2d 198, affd. 83 N.Y.2d 248, 609 N.Y.S.2d 148, 631 N.E.2d 90). Thus, the 1992 amendment represented yet another stroke of the Legislature's pen, in response to judicial decisions.

In addition to the substantive clarification of the liability portion of section 205-e, the revival aspect was amended to provide that:

"every cause of action for the personal injury or wrongful death of a police officer which was pending on or after [January 1, 1987], because this section was not yet effective, or which would have been actionable on or after [January 1, 1987] had this section been effective is hereby revived and an action thereon may be commenced at any time provided that such action is commenced on or before [June 30, 1993]."

The Appellate Division in this case held that, notwithstanding the 1992 amendment, the revival provision of section 205-e applied only to claims accruing between January 1, 1987 and July 12, 1989. The Court's reasoning appears to be that on July 12, 1989 (the effective date of the original enactment) police officers were granted a substantive claim; thus, actions accruing after that date did not need to be revived (see, McNulty v. New York City Tr. Auth., 166 Misc.2d 219, 221, 632 N.Y.S.2d 770; cf., Ruotolo II, supra, 187 A.D.2d 160, 164, 593 N.Y.S.2d 198, affd. 83 N.Y.2d 248, 609 N.Y.S.2d 148, 631 N.E.2d 90 ["purpose (of the revival statute) was to ensure that actions by 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"] ). In the view of the Appellate Division, the 1992 amendment to the revival provision simply extended the date to file claims that had accrued prior to the effective date of the original 1989 enactment.

This reasoning might be pertinent to premises-related claims, since these claims were clearly actionable under the substantive provisions of the original 1989 enactment of section 205-e and court decisions interpreting it. However, as the previously cited Appellate Division decisions point out, it was not clear that the original 1989 enactment...