Villanueva v. Comparetto

• Decision Date: 03 February 1992
• Docket Number: No. 1,No. 2,1,2
• Parties: Alberto VILLANUEVA, et al., Respondents, v. Gino COMPARETTO, et al., Appellants. (Action) INCORPORATED VILLAGE OF FREEPORT, Appellant-Respondent v. Gino COMPARETTO, et al., Respondents-Appellants. (Action)
• Court: New York Supreme Court — Appellate Division

Page 30

580 N.Y.S.2d 30

180 A.D.2d 627

Alberto VILLANUEVA, et al., Respondents, v. Gino COMPARETTO, et al., Appellants. (Action No. 1)

INCORPORATED VILLAGE OF FREEPORT, Appellant-Respondent v. Gino COMPARETTO, et al., Respondents-Appellants. (Action No. 2)

Supreme Court, Appellate Division,

Second Department.

Feb. 3, 1992.

O'Connor, O'Connor, Hintz & Deveney, East Rockaway (Robert E. O'Connor, on the brief), for appellants Cremosa Cheese Corp., Anthony & Sons Dairy Co., Inc. d/b/a Anthony & Sons Dairy Co., and Anthony Comparetto in Action No. 1 and respondent-appellant Cremosa Cheese Corp., in Action No. 2.

Lamberta, Laurencelle & Bennett, Massapequa (John C. Bennett, of counsel), for appellant Gino Comparetto in Action No. 1 and respondent-appellant Gino Comparetto in Action No. 2.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Donald S. Neumann, Jr., James M. Murphy, and Jeffrey D. Present, of counsel), for appellant-respondent in Action No. 2.

Kranz, Davis & Hersh, Hauppauge (Patricia A. Condon, on the brief), for respondents in Action No. 1.

Before THOMPSON, J.P., and BRACKEN, SULLIVAN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc. (Action No. 1), and a related action by the Incorporated Village of Freeport to recover damages under General Municipal Law § 207-c (Action No. 2), (1) the defendants Anthony Comparetto, Anthony & Sons Dairy Company and Cremosa Cheese Corporation appeal from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), entered February 21, 1990, as denied their motion to dismiss the plaintiffs' third, fourth, sixth, eighth, and ninth causes of action in Action No. 1, (2) the Village of Freeport appeals from so much of the same order as denied its motion for partial summary judgment as to liability and granted that branch of the motion of Cremosa Cheese Corporation which was to dismiss the first cause of action asserted against it in Action No. 2 as time-barred, (3) Cremosa Cheese Corporation cross-appeals from so much of the order as denied that branch of its motion which was to dismiss the second cause of action asserted against it in Action No. 2, and (4) Gino Comparetto cross-appeals from so much of the same order as denied that branch of his motion which was for summary judgment dismissing the first cause of action asserted against him in Action No. 2.

ORDERED that the order is modified, on the law, by granting that branch of the Village's motion which was for partial summary judgment as to liability on the first cause of action against Gino Comparetto; as so modified, the order is affirmed, with one bill of costs to the plaintiffs in Action No. 1 and the plaintiff in Action No. 2, appearing separately and filing separate briefs.

On March 2, 1987, the plaintiff Alberto Villanueva, a police officer employed by the Village of Freeport, responded to a complaint regarding illegally parked trucks obstructing a construction site. The trucks were owned by the defendant Cremosa Cheese Corporation (hereinafter Cremosa). Officer Villanueva asked the defendant Gino Comparetto, the president of Cremosa, to remove the illegally parked trucks. Comparetto refused. When Officer Villanueva started to write up a summons, Comparetto grabbed him from behind, restrained him in a headlock, and punched him. Shortly thereafter, Comparetto was arrested by Officer Villanueva, aided by back-up officers. On June 14, 1988, Comparetto was convicted, after a jury trial, of assault in the second degree (Penal Law § 120.05), obstructing governmental administration in the second degree, and resisting arrest.

In February 1988 Officer Villanueva and his wife commenced Action No. 1 to recover damages for personal injuries against, inter alia, Comparetto and Cremosa, asserting causes of action based on negligence, intentional tort, and vicarious liability. Subsequently, the Village also brought an action against Comparetto and Cremosa pursuant to General Municipal Law § 207-c to recover sums expended as a result of Officer Villanueva's injuries based on allegations of battery and negligence (Action No. 2). Thereafter, Comparetto and Cremosa moved for summary judgment to dismiss so much of Officer Villanueva's complaint as was based on negligence, reasoning that the "fireman's rule" barred that claim. Comparetto and Cremosa also moved for summary judgment in the second action upon the same ground, also contending that the Village's claim against them based on battery was barred by the applicable Statute of Limitations. The Village moved for partial summary judgment against the defendants on the issue of liability.

The Supreme Court properly denied the motions to dismiss the respective negligence claims. It is now well settled that "Santangelo v. State of New York [71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770], does not preclude recovery in all cases where a police officer is injured in the line of duty" (Starkey v. Trancamp Contr., 152 A.D.2d 358,...