Simons v. City of New York

• Decision Date: 23 July 1998
• Citation: 675 N.Y.S.2d 597,252 A.D.2d 451
• Parties: , 1998 N.Y. Slip Op. 7103, 1998 N.Y. Slip Op. 7352 Stuart SIMONS, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent. Stuart SIMONS, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 597

675 N.Y.S.2d 597

252 A.D.2d 451, 1998 N.Y. Slip Op. 7103,

1998 N.Y. Slip Op. 7352

Stuart SIMONS, et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent.

Stuart SIMONS, et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 23, 1998.

Alan H. Greenberg, for plaintiffs-appellants.

Elizabeth S. Natrella, for defendant-respondent.

Before ROSENBERGER, J.P., RUBIN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Jane Solomon, J.), entered February 26, 1997, denying plaintiffs' motion to amend their complaint and denying defendant's cross-motion for summary judgment dismissing the complaint, unanimously modified, on the law, the facts and in the exercise of discretion, to grant plaintiffs' motion to amend the complaint to assert a claim under General Municipal Law § 205-e, and to grant defendant's cross-motion to the extent of dismissing the claim based on common-law negligence, and otherwise affirmed, without costs. Appeal from orders of the same Court and Justice, entered August 26, 1997 and September 15, 1997, which, insofar as appealable, denied motions by the respective parties for renewal, unanimously dismissed, without costs, as academic in view of the foregoing.

Plaintiff Stuart Simons, a police officer attending Criminal Court in connection with investigative duties, was asked to escort a complainant to the subway. There is no evidence that this request resulted from any fear for the complainant's safety. Plaintiff, en route to the subway, allegedly was injured when he tripped and fell on a depression around a metal plate in the roadbed as he was stepping off a curb. Plaintiff claimed that the defect was created by negligent repair work by a contractor hired by the City.

The IAS court, finding that performance of plaintiff's official duties had not increased the risk of injury, found that the common law "firefighter's rule" did not entitle the City to summary judgment on the negligence claim. Plaintiff moved for leave to add a claim under General Municipal Law § 205-e, which permits a police officer to recover for injuries sustained in accidents caused by a municipality's failure to comply with any statute, ordinance or other laws. Finding that the violation did not provide a basis for recovery, insofar as the statutes and ordinances relied on by plaintiff did not impose a duty upon the City to repair its roadways, the court denied leave. The court also denied plaintiffs' motion for sanctions arising from purported discovery violations.

Although plaintiff's accident did not arise from an activity as dramatic as chasing a suspect or mental patient (Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770), or being injured in a car crash while responding to an emergency (Cooper v. City of New York, 81 N.Y.2d 584, 601 N.Y.S.2d 432, 619 N.E.2d 369), it arose, nevertheless, directly from the performance of official duties. Being on duty was not the mere occasion for an unfortunate event, such as when "nothing in the acts undertaken in the performance of police duties placed him ... at increased risk for that accident to happen" (Zanghi v. Niagara Frontier Transportation Commission, 85 N.Y.2d 423, 440, 626 N.Y.S.2d 23, 649 N.E.2d 1167). Rather, the performance of his duty, even if an undramatic one, was the connection between the hazards of police work and the injuries. Accordingly, the firefighter's rule provides a complete defense to the City and we grant summary judgment dismissing the common-law negligence claim.

The court erred by denying leave regarding the General Municipal Law § 205-e claim. That section was enacted to create a right of action for firefighters and police officers whose line-of-duty injuries result from the negligence of "any person" in failing to comply with laws imposing affirmative duties, regardless of whether such are duties of care. As a predicate to maintaining a General Municipal Law § 205-e action, plaintiff must rely on an underlying violation (Zanghi, supra at 441-442, 626 N.Y.S.2d 23, 649 N.E.2d 1167), although what type of...