Weiner v. City of N.Y.

• Citation: 2011 N.Y. Slip Op. 03589,922 N.Y.S.2d 160,84 A.D.3d 140
• Parties: Mark WEINER, respondent,v.CITY OF NEW YORK, et al., appellants.
• Decision Date: 26 April 2011
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 140

922 N.Y.S.2d 160

2011 N.Y. Slip Op. 03589

Mark WEINER, respondent,

v.CITY OF NEW YORK, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

April 26, 2011.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz, Julie Steiner, and Michael Shender of counsel), for appellants.Friedman, Khafif & Sanchez, LLP, Brooklyn, N.Y. (Andrew M. Friedman and Arnold DiJoseph of counsel), for respondent.

A. GAIL PRUDENTI, P.J., MARK C. DILLON, RUTH C. BALKIN, and CHERYL E. CHAMBERS, JJ.

BALKIN, J.

The principal issue on this appeal is whether a New York City Emergency Medical Technician injured in the line of duty on municipal property because of alleged defects in those premises may maintain an action against his municipal employer under General Municipal Law § 205–a despite his eligibility for Workers' Compensation benefits. In determining this issue, we must resolve the tension between Workers' Compensation Law § 11, which provides that an employer's liability under the Workers' Compensation Law “ shall be exclusive and in place of any other liability whatsoever,” and General Municipal Law § 205–a(1), which provides a right of action “[i]n addition to any other right of action or recovery under any other provision of law.”

On October 26, 2007, at approximately 10:30 P.M., Mark Weiner, an Emergency Medical Technician (hereinafter EMT) employed by the Fire Department of the City of New York (hereinafter the Fire Department), responded to a call that a person needed assistance on the Reigelman Boardwalk, at Brighton 4th Street, in Brooklyn. While searching on the boardwalk for the injured person, Weiner allegedly fell through a hole in a grate and sustained injuries.

Weiner applied for, and received, Workers' Compensation benefits. As well, in January 2008, after timely filing a notice of claim, he commenced this action against the City of New York and the New York City Parks & Recreation Department (hereinafter together the City defendants) seeking to recover damages for his injuries. The first of his two causes of action alleged, in essence, that the City defendants were negligent in their ownership, operation, and maintenance of the boardwalk. The second cause of action alleged that the City defendants' violation of various provisions of the Administrative Code of the City of New York caused his injuries, thereby giving rise to a right of action under General Municipal Law § 205–a.

Answering Weiner's complaint, the City defendants pleaded, as an absolute bar to the action, the exclusivity provision of the Workers' Compensation Law ( see Workers' Compensation Law § 11), and they eventually moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. The Supreme Court denied the motion on authority of the decision of the Appellate Division, Fourth Department, in Lo Tempio v. City of Buffalo, 6 A.D.3d 1197, 775 N.Y.S.2d 717, in the absence of controlling authority from this Department ( see People v. Turner, 5 N.Y.3d 476, 482, 806 N.Y.S.2d 154, 840 N.E.2d 123; Mohen v. Stepanov, 59 A.D.3d 502, 504, 873 N.Y.S.2d 687; Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664–665, 476 N.Y.S.2d 918). In Lo Tempio, the Fourth Department held that the plaintiff (like Weiner, an EMT employed by a fire department) was not barred by the Workers' Compensation Law from bringing an action against his municipal employer asserting liability under General Municipal Law § 205–a and common-law negligence.¹ The City defendants appeal.

The Court of Appeals has described New York's Workers' Compensation Law, which was enacted in 1914 (as the Workmen's Compensation Law; L. 1913, ch. 816), as “the State's most general and comprehensive social program, enacted to provide all injured employees with some scheduled compensation and medical expenses, regardless of fault for ordinary and unqualified employment duties” ( Matter of Balcerak v. County of Nassau, 94 N.Y.2d 253, 259, 701 N.Y.S.2d 700, 723 N.E.2d 555; see Reich v. Manhattan Boiler & Equip. Corp., 91 N.Y.2d 772, 779, 676 N.Y.S.2d 110, 698 N.E.2d 939; Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 416, 482 N.Y.S.2d 720, 472 N.E.2d 682). A cornerstone of the Workers' Compensation framework is a tradeoff: the employee is afforded “swift and sure” compensation and the employer is assured that its Workers' Compensation liability to its employee “shall be exclusive and in place of any other liability whatsoever” (Workers' Compensation Law § 11; see Workers' Compensation Law § 29[6]; Gonzales v. Armac Indus., 81 N.Y.2d 1, 8, 595 N.Y.S.2d 360, 611 N.E.2d 261; Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 159, 432 N.Y.S.2d 879, 412 N.E.2d 934; O'Rourke v. Long, 41 N.Y.2d 219, 222, 391 N.Y.S.2d 553, 359 N.E.2d 1347; Williams v. Hartshorn, 296 N.Y. 49, 50, 69 N.E.2d 557; Hyman v. Agtuca Realty Corp., 79 A.D.3d 1100, 913 N.Y.S.2d 579).

General Municipal Law § 205–a has a much narrower scope. It was enacted, in large part, to limit the harsh effects of the “firefighter's rule,” which barred firefighters from recovery in negligence for injuries suffered in the line of duty ( Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 76, 760 N.Y.S.2d 397, 790 N.E.2d 772). Section 205–a was added to the General Municipal Law in 1935 (L. 1935, ch. 800) and broadened several times; it provides a right of action, as relevant here, to “any officer, member, agent or employee of any fire department” injured “while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department” “as a result of any neglect, omission, willful or culpable negligence of any person ... in failing to comply with the requirements of any of the statutes, ordinances, [etc. of] city governments.” Inasmuch as the right of action it confers is “[i]n addition to any other right of action or recovery under any other provision of law” (General Municipal Law § 205–a), this provision on its face conflicts with the Workers' Compensation Law exclusivity provision.

When the Court of Appeals, in Santangelo v. State of New York, 71 N.Y.2d 393, 397, 526 N.Y.S.2d 812, 521 N.E.2d 770, applied the firefighter's rule to police officers, the Legislature's response was swift: it enacted General Municipal Law § 205–e, to give police officers the same right of action as was available to firefighters under General Municipal Law § 205–a. Indeed, the sponsors' memorandum left no doubt as to the sponsors' intent: after noting that “[a]s a result of several recent court decisions, it was held that police officers are prohibited from recovering damages for injuries sustained in the line of duty due to the negligence of some other party,” the sponsors stated that “[t]his bill would be identical to general municipal law, section 205–a, which was enacted in 1935 to provide firefighters the right to recover damages for injury or death” (Dean G. Skelos and Eric N. Vitaliano, Mem. in Support, Bill Jacket, L. 1989, ch. 346, at 5). As Senator Skelos stated in a letter to the Governor's Counsel requesting that the Governor sign the bill:

“The absence of a law to protect the policemen is totally unfair where for the last fifty years the firefighters have had a statute to protect them.

“If a fireman and a policeman are in a burning building together and both are injured by a defect in violation of code, the fireman is able to recover for his damages while the policeman is not. This situation is not tolerable” (Letter from Senator Skelos, June 30, 1989, Bill Jacket, L. 1989, ch. 346, at 6).

Notably as well, the Budget Division, in reporting on the bill, opined that “[t]his new section does not expand or restrict any provision of the Workers' Compensation law” (Budget Report on Bills, Bill Jacket, L. 1989, ch. 346, at 20). The New York State Conference of Mayors and Other Municipal Officials noted and explained the difference between General Municipal Law § 205–a and the proposed § 205–e: “The amendment to this bill contains language which addresses a concern of the members of this organization as to the potential impact of this proposed legislation upon provisions of the Workers' Compensation Law. In view of this amendment to the bill, the previous objections of this organization are removed and the bill is supported” (N.Y. St. Conference of Mayors and Other Mun Officials Mem in Support, Bill Jacket, L. 1989, ch. 346, at 29). Later, however, that organization recommended veto of the bill on other grounds ( id. at 35–36). Over the ensuing seven years, both statutes were amended. Each amendment broadened the rights of firefighters and police officers. These changes culminated in chapter 703 of the Laws of 1996, which, in addition to making several more changes to General Municipal Law §§ 205–a and 205–e, added a new section to the General Obligations Law, § 11–106, which, as the Court of Appeals observed in Giuffrida, “largely abolishes the firefighter's rule by giving firefighters and police officers a cause of action in negligence for injuries suffered while in the line of duty (except as to actions against municipal employers and fellow workers)” ( Giuffrida v. Citibank Corp., 100 N.Y.2d at 78, 760 N.Y.S.2d 397, 790 N.E.2d 772). Indeed, that was the goal of the sponsors: “The sum effect of these amendments is the completion of a process begun in 1935 with the enactment of General Municipal Law Section 205–a (L. 1935, ch. 800): the abolition of the harsh and antiquated ‘firefighter's rule,’ a rule which singles out police officers and firefighters as the only public employees barred from suing tortfeasors who injure them while they are acting within the scope of their duties” (Introducers' Mem. in Support, Bill Jacket, L. 1996, ch. 703, at 8).

The current versions of General Municipal Law §§ 205–a(1) and 205–e(1) are mostly identical, with two significant exceptions. First, while the minimum...