You are here: / Negligence
, ,

Firefighter Rule Prohibiting Negligence Suit by Injured Police Officer Applied/Action Under Municipal Law 205-e Allowed

In a full-fledged opinion by Justice Leventhal, the Second Department determined a police officer who was injured when she fell off the back of a flat bed truck while loading police barricades could not sue in negligence (based on the firefighter rule) but could sue under General Municipal Law 205-e based on an alleged violation of Labor Law 27-a (which imposes a general duty to provide a safe work environment):

Re: the applicability of the firefighter rule:

…[T]he firefighter rule provides that “[p]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment” …. The rule bars a police officer’s or a firefighter’s recovery ” when the performance of his or her duties increased the risk of the injury happening, and did not merely furnish the occasion for the injury'” … * * *

While loading a flatbed truck may not be a task that is typically associated with police work, the alleged accident occurred while the plaintiff was on a police vehicle, loading police barriers, and while she was assigned to the barrier truck detail, a location and job detail to which she was exposed solely as a result of her duties as a police officer… .  * * *

Re: the viability of the General Municipal Law 205-e cause of action:

As observed by the Court of Appeals, the Legislature has, on several occasions, “sought to ameliorate the harsh effects of the [firefighter] rule” …. To that end, in 1935, the Legislature first enacted General Municipal Law § 205-a, which created a cause of action for firefighters who, while in the line of duty, are injured as a result of violations of statutes or regulations (see General Municipal Law § 205-a; L 1935, ch 800, § 2; L 1936, ch 251, § 1). In 1989, the Legislature enacted General Municipal Law § 205-e in direct response to Santangelo v State of New York (71 NY2d 393), which ,,,had extended the firefighter rule to police officers… .  * * *

…[T]he plaintiff has alleged that the defendants’ Labor Law § 27-a(3)(a)(1) violation is a predicate for her General Municipal Law § 205-e cause of action. Section 205-e does not stand alone and must be predicated on a violation of a separate legal requirement. …[T]he Court of Appeals, in addressing the various amendments to General Municipal Law § 205-e, has stated “that we should apply this provision expansively’ so as to favor recovery by police officers whenever possible”… .

Since section 27-a provides an objective standard by which the actions or omissions of a public employer, such as the City, can be measured for purposes of liability, Labor Law § 27-a(3)(a)(1) can serve as a predicate for a section 205-e claim… .  Gammons v City of New York, 2013 NY Slip Op 05298, Second Dept 7-17-13

 

,

Notice to Admit Improperly Sought Admission at Heart of Case

The Second Department determined Supreme Court abused its discretion when it denied defendant’s motion for a protective order pursuant to CPLR 3103(a).  The plaintiff had sought a notice to admit that a vehicle owned by the defendant and operated by defendant’s employee ‘was in contact with the plaintiff.”  The Second Department wrote:

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial”…. Here, the plaintiff’s notice to admit improperly sought the defendant’s admission concerning a matter that went to the heart of the controversy in this case…. Moreover, ” the purpose of a notice to admit is not to obtain information in lieu of other disclosure devices, such as the taking of depositions before trial'” …. Accordingly, the Supreme Court should have granted the defendant’s motion for a protective order. Ramcharran v NY Airport Services LLC, 2013 NY Slip Op 05195, 2nd Dept 7-10-13

 

, ,

Legal Malpractice Action Accrues When Committed, Not When Client Learns of It

The Fourth Department explained when a legal malpractice action accrues (when it is committed, whether or not the aggrieved party is aware of it):

“ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ ”….  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ”….“ ‘What is important is when the malpractice was committed, not when the client discovered it’ ” … .  Elstein v Phillips Lytle, LLP, 631, 4th Dept 7-5-13

 

,

Exception to Written Notice of Defect Prerequisite Did Not Apply; Question of Fact Whether Municipality Created Dangerous Condition (Gap in Bridge-Roadway)

The Fourth Department, over a dissent, determined the exception to the written notice requirement (notice to a municipality re: a dangerous condition) did not apply, but there was a question of fact whether the municipality created the dangerous condition, a gap in the roadway on a bridge, which caused the infant plaintiff to fall off his bicycle.  The Fourth Department wrote:

Where the municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to the rule, i.e., that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality …. The affirmative negligence exception is “limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ….    An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement”…. We conclude that defendant met its initial burden of establishing as a matter of law that it did not receive prior written notice of any defective or dangerous condition on or near the bridge as required by Local Law No. 1 …. Viewing the evidence in the light most favorable to plaintiff, as we must …, we conclude, however, that plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident ….  Hawley v Town of Ovid, 450, 4th Dept 7-5-13

 

, ,

Complaint Against Town for Sewage Backup in Home Dismissed

The Fourth Department affirmed the dismissal of a negligence complaint against a town arising from the backup of sewage in plaintiffs’ house.  The decision includes a concise but complete explanation of the issues relevant to municipal liability for negligence:

In an action against a municipality such as defendant, it is “the fundamental obligation of a plaintiff pursuing a negligence cause of action to prove that the putative defendant owed a duty of care.  Under the public duty rule, although a municipality owes a general duty to the public at large to [perform certain governmental functions], this does not create a duty of care running to a specific individual sufficient to support a negligence claim, unless the facts demonstrate that a special duty was created.  This is an offshoot of the general proposition that ‘[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally’ ” … ..“The second principle relevant here relates not to an element of plaintiffs’ negligence claim but to a defense that [is] potentially available to [defendant]—the governmental function immunity defense . . . [T]he common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions . . . [pursuant to which] ‘[a] public employee’s discretionary acts—meaning conduct involving the exercise of reasoned judgment—may not result in the municipality’s liability even when the conduct is negligent’ ” … ..  Middleton v Town of Salina, 604, 4th Dept 7-5-13

 

4 ½ Inch Drop Raised Question of Fact About Dangerous Condition and Failure to Warn

The Fourth Department determined a 4 ½ inch drop just inside the entrance to a bowling alley raised a question of fact about whether the drop was a dangerous condition, even though no building codes applied.  In addition, there was a question of fact about the failure-to-warn cause of action.  Belsinger v M & M Bowling & Trophy Supplies, Inc, 558, 4th Dept 7-5-13

SLIP AND FALL

,

“Employer” of Independent Contractor Not Liable for Contractor’s Alleged Negligence

The Fourth Department reversed Supreme Court and granted summary judgment dismissing claims which alleged Sirota, who worked as an independent contractor for defendant Ridgeway, was negligent in advising plaintiff to purchase “certain security and investment vehicles.”  The Fourth Department determined Ridgeway was entitled to summary judgment as Ridgeway had demonstrated it owed no duty of care to plaintiff to supervise Sirota (an independent contractor) because it did not direct or control Sirota’s providing investment advice:

…“[O]rdinarily, a principal is not liable for the acts of independent contractors in that, unlike the master-servant relationship, principals cannot control the manner in which the independent contractors’ work is performed”… . Although there are exceptions to that general rule …, we conclude that none apply to the circumstances presented here.  Although plaintiff’s claim sounds in negligent supervision, one of the recognized exceptions…, it is well settled that “the mere retention of general supervisory powers over an independent contractor cannot form a basis for the imposition of liability against the principal”,,,  Wendt v Bent Pyramid Productions, LLC, et al, 448, 4th Dept 7-5-13

 

,

Standard for Liability of Members of Volunteer Fire Company

In affirming the denial of plaintiff’s motion for summary judgment, the Second Department explained the standard for finding liability on the part of members of volunteer fire companies:

Members of volunteer fire companies may not be held liable for acts done in the performance of their duties in the absence of “willful negligence or malfeasance” (General Municipal Law § 205-b;…. Here, the plaintiff failed to establish, prima facie, that the manner in which [defendant]. operated the vehicle at the time of the accident constituted willful negligence or malfeasance….  Schleger v Jurcsak, 2013 NY Slip Op 05056, 2nd Dept 7-3-13

 

,

Garbage on Sidewalk May Create Liability

The Second Department determined that defendant’s motion for summary judgment should have been denied.  The plaintiff was injured when his bicycle struck garbage and debris on a sidewalk abutting a building owned by defendants.

New York City Administrative Code § 7-210 imposes a duty upon property owners to maintain the sidewalk adjacent to their property. That duty includes the duty to remove “dirt or other material from the sidewalk,” which includes debris on the sidewalk which came from garbage bags placed on the sidewalk by the property owner (New York City Administrative Code § 7-210 [b];…). On their motion for summary judgment, the defendants bore the burden of establishing that they neither created the hazardous condition nor had actual or constructive notice of its existence…. The defendants failed to establish their entitlement to judgment as a matter of law. They failed to demonstrate that they did not create a dangerous condition, nor did they establish that they properly maintained the sidewalk as required by Administrative Code of the City of NY § 7-210… .  Weinberg v 2345 Ocean Assoc, LLC, 2013 NY Slip Op 05060, 2nd  Dept 7-3-13

 

 

, ,

Leaky Condominium Roof Supported Negligence and Nuisance

In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed:

The sponsor owed a nondelegable duty to plaintiffs to keep the condominium, including its roof, in good repair (see Multiple Dwelling Law § 78[1];…) . The sponsor breached that duty: Its principal… admitted that the original roof that the sponsor had caused to be installed did not render the condominium watertight and that there were instances of water infiltration into plaintiffs’ unit that needed to be addressed by the sponsor. * * *

Plaintiffs are correct that nuisance can be negligent; it does not have to be intentional…. In any event, they raised a triable issue of fact whether the sponsor’s allowing water to continue infiltrating their unit was intentional….  Liberman v Cayre Synergy 73rd LLC, 2013 NY Slip Op 04996, 1st Dept 7-2-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy