Wawrzyniak v. Sherk
| Decision Date | 01 February 1991 |
| Citation | 566 N.Y.S.2d 138,170 A.D.2d 972 |
| Parties | Carl WAWRZYNIAK, Respondent, v. Harvey SHERK, Madonna Sherk, and Ronald Sherk, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Hurwitz & Fine, P.C. by Thomas Bender, Buffalo, for appellants.
Likoudis, Abbarno & McLaughlin by Anthony Abbarno, Buffalo, for respondent.
Before CALLAHAN, J.P., and DENMAN, BALIO, LAWTON and DAVIS, JJ.
Plaintiff, while acting in the course of his employment as a police officer, was injured on May 23, 1983, as he was assisting two fellow officers in effecting the arrest of defendant Ronald Sherk. Plaintiff sustained his injury when Sherk resisted arrest and when, in an attempt to extricate her son from police custody, defendant Madonna Sherk lunged toward the group, causing all of them to fall over a wrought iron railing. Plaintiff commenced this action against Ronald Sherk, his mother and father, alleging that they were negligent in resisting the efforts of police officers and in failing to take proper precautions to avoid the incident. Defendants moved for summary judgment upon the ground that the common-law "fireman's rule" precluded police officers from the recovery of damages for those situations which create the need for their services (see, Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770). The court denied defendants' motion, and on reargument, adhered to its original determination. We reverse.
A police officer is precluded from recovering damages for injuries suffered while performing "a function particularly within the scope of duty of police officers" (Santangelo v. State of New York, supra, at 397, 526 N.Y.S.2d 812, 521 N.E.2d 770). Courts have consistently held that the investigation of reports of criminal activity and the apprehension of suspects are functions particularly within the scope of police duties and that police officers are not entitled, under the common-law rule, to recover damages sustained during the performance of those functions (see, Wynne v. Tullman, 151 A.D.2d 476, 542 N.Y.S.2d 266; O'Connor v. O'Grady, 143 A.D.2d 738, 533 N.Y.S.2d 300; Campbell v. Lorenzo's Pizza Parlor, 143 Misc.2d 1022, 542 N.Y.S.2d 460; see also, Santangelo v. State of New York, 71 N.Y.2d 393, 526 N.Y.S.2d 812, 521 N.E.2d 770, supra ). Under the circumstances, defendants were entitled to summary judgment dismissing the complaint allegations of common-law negligence.
We further conclude that, to the extent the complaint may be liberally construed to include a cause of action under section 205-e of the General Municipal Law, defendants also are entitled to summary judgment dismissing that cause of action. In 1989, the Legislature enacted section 205-e to create a cause of action for injuries sustained by police officers in the line of duty (L.1989, ch. 346). Although the statutory cause of action was created six years after plaintiff's injury, the Legislature, in 1990, revived those causes of action pending on or after January 1, 1987 (L.1990, ch. 762), and it appears that the amendment applies to the subject complaint. This issue was not considered by Supreme Court because the statutory cause of action had not been "revived" at that time. We consider it at this time in the exercise of our power to search the...
To continue reading
Request your trial
-
Phalen v. Kane
...(cf., Ruotolo v. State of New York, 187 A.D.2d 160, 593 N.Y.S.2d 198, lv. granted, 192 A.D.2d 1143, 597 N.Y.S.2d 591; Wawrzyniak v. Sherk, 170 A.D.2d 972, 566 N.Y.S.2d 138). In 1992, however, the Legislature expressly declared that the liability imposed by that amendment "should not be limi......
-
Ruotolo v. State
...of the doctrine lead to the same conclusion: the "fireman's rule" should not apply in the Brown situation. (But cf., Wawrzyniak v. Sherk, 170 A.D.2d 972, 566 N.Y.S.2d 138.) Since we do not believe that Santangelo I and the "fireman's rule" applied in Brown, the perceived inequity in constru......
-
Finley v. Patterson
...not liable for injuries to officer caused by a scuffle with a person the owner wanted removed from the premises); Wawrzyniak v. Sherk, 170 A.D.2d 972, 566 N.Y.S.2d 138 (1991) (holding officer unable to recover for injuries caused by the arrestee's mother when she lunged toward officer who w......
-
Ruotolo v. State, No. 70726
...City of New York, 70 NY2d 558, [523 N.Y.S.2d 60, 517 N.E.2d 872], supra; Campbell v. Lorenzo's Pizza Parlor, 172 AD2d 478 ; Wawrzyniak v. Sherk, 170 AD2d 972 , supra.) In either case, they have failed to state a cause of action. (151 Misc2d 820, 828 This appeal ensued and, in their brief pr......