Szybura v. City of Elmira

• Decision Date: 06 November 1967
• Docket Number: 2 and 3,Nos. 1,s. 1
• Citation: 284 N.Y.S.2d 190,28 A.D.2d 1154
• Parties: Bernard P. SZYBURA, Respondent, v. CITY OF ELMIRA, Appellant. Russell R. NEILEY, Respondent, v. CITY OF ELMIRA, Appellant. Joseph HENTZ, Respondent, v. CITY OF ELMIRA, Appellant. Action
• Court: New York Supreme Court — Appellate Division

Page 190

284 N.Y.S.2d 190

28 A.D.2d 1154

Bernard P. SZYBURA, Respondent, v. CITY OF ELMIRA, Appellant.

Russell R. NEILEY, Respondent, v. CITY OF ELMIRA, Appellant.

Joseph HENTZ, Respondent, v. CITY OF ELMIRA, Appellant.

Action Nos. 1, 2 and 3.

Supreme Court, Appellate Division, Third Department.

Nov. 6, 1967.

William D. Burns, Corp. Counsel, Elmira, for defendant-appellant, Personius, Cramer, Mustico & Sullivan, Elmira, of counsel.

De Filippo Brothers, Elmira, for plaintiff-respondent, Szybura.

James R. Carmody, Elmira, for plaintiff-respondent, Neiley.

Night, Keller, Relihan & O'Connor, Binghamton, for plaintiff-respondent, Hentz.

Before GIBSON, P.J., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

STALEY, Justice.

Appeal from three orders of Supreme Court, Chemung County, in separate negligence actions which denied defendant's motion to amend its answers and serve amended answers to the complaints to plead affirmative defenses in mitigation of damages.

The three plaintiffs were injured about midnight on January 3, 1963 when a police vehicle owned by the defendant collided with a fire truck also owned by the defendant. In Action No. 1, plaintiff Szybura was a policeman employed by the defendant and was operating the police vehicle at the time of the collision. In Actions Nos. 2 and 3, plaintiffs Neiley and Hentz were firemen employed by the defendant. Neiley was operating the fire truck at the time of the collision and Hentz was a passenger on the fire truck.

Pursuant to the provisions of section 207--a of the General Municipal Law, the defendant has paid the salary, medical expenses and hospital expenses of the firemen injured in the accident during the period of their disability and, pursuant to the provisions of section 207--c of the General Municipal Law and section 199(a) of the Charter of the City of Elmira, the defendant has paid the salary, medical and hospital expenses of the plaintiff Szybura, the policeman, during his period of disability.

Each of the injured city employees has instituted a negligence action against the defendant, and the defendant seeks to plead as an affirmative defense in mitigation of damages, the amounts paid by the defendant for salary, medical, surgical, hospital and associated expenses arising out of the injury.

Section 207--a of the General Municipal Law provides as follows:

'Any paid fireman of a fire company or fire department of a city of less than one million population, or town, village or fire district, who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition, such municipality or fire district shall be liable for all medical treatment and hospital care furnished during such disability. * * * Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality or fire district aforesaid for reimbursement in such sum or sums actually paid as a salary or wages and/or for medical or hospital treatment, as against any third party against whom the fireman shall have a cause of action for the injuries sustained.'

Section 207--c of the General Municipal Law contains similar provisions relating to policemen employed by the city and injured as a result of the performance of their duties. These sections clearly direct the municipality to pay the salaries and medical expenses of policemen and firemen injured in the performance of their duties during their periods of disability, and thereupon provide a cause of action for moneys expended thereunder against any third-party against whom the employee shall have a cause of action for the injuries sustained.

The general rule is that damages cannot be mitigated or reduced because of payments received by the injured party from disability compensation, pension funds, retirement allowance, or insurance which is effected by the injured party. (Seidel v. Maynard, 279 App.Div. 706, 108 N.Y.S.2d 450; Healy v. Rennert, 9 N.Y.2d 202, 213 N.Y.S.2d 44, 173 N.E.2d 777; Cady v. City of New York, 19 A.D.2d 822, 243 N.Y.S.2d 661, affd. 14 N.Y.2d 660, 249 N.Y.S.2d 868, 198 N.E.2d 901; Lehr v. City of New York, 16 A.D.2d 702, 227 N.Y.S.2d 705; 25 C.J.S. Damages § 99(1)(2)(3), 13 N.Y. Jur., Damages, § 153.)

However, in cases where payments are made to the injured party in the form of wages or medical services, or by reason of insurance which is paid for by the wrongdoer, evidence by the defendant of such payments or benefits to the injured party has been held to be admissible in mitigation of damages. (Drinkwater v. Dinsmore, 80 N.Y. 390; Coyne v. Campbell, 11 N.Y.2d 372, 230 N.Y.S.2d 1, 183 N.E.2d 891; Moore v. Leggette, 24 A.D.2d 891, 264 N.Y.S.2d 765, affd. 18 N.Y.2d 864, 276 N.Y.S.2d 118, 222 N.E.2d 737.)

In the case of Employers' Liab. Assur. Corp. Limited, of London, England v. Daley, 271 App.Div. 662, 67 N.Y.S.2d 233, 68 N.Y.S.2d 743, affd. 297 N.Y. 745, 77 N.E.2d 745, the defendant, as a volunteer fireman, had received payments pursuant to section 205 of the General Municipal Law for lost wages and medical expenses incurred by reason of injuries sustained in a collision between a fire truck and an automobile. Plaintiff made the payments to the defendant under a policy of insurance indemnifying the town...