

Voss v City of New York (2016 NY Slip Op 02586)





Voss v City of New York


2016 NY Slip Op 02586


Decided on April 5, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 5, 2016

Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.


735 300883/11

[*1]Roberta Voss, Plaintiff-Appellant,
vThe City of New York, et al., Defendants-Respondents.


Frank J. Laine, P.C., Plainview (Frank Braunstein of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about August 18, 2014, which, to the extent appealed from as limited by the briefs, granted defendant City's motion for summary judgment dismissing as against it the causes of action for common-law negligence and violations of the Labor Law and the Penal Law, unanimously affirmed, without costs.
Plaintiff's common-law negligence claim is barred by the so-called "Firefighter Rule," because she was injured by a fellow officer during the performance of police duties (see General Obligations Law § 11-106). Plaintiff had not yet completed her tour of duty, and was waiting in the precinct muster room to return her radio, when the other officer grabbed her from behind
and allegedly demonstrated a take-down maneuver (see Ferriolo v City of New York, 72 AD3d 490 [1st Dept 2010], lv denied 15 NY3d 702 [2010]).
Because it is asserted against her employer (and her fellow officer), plaintiff's common-law negligence claim can only be based on the statutory right of action in General Municipal Law § 205-e (Williams v City of New York, 2 NY3d 352, 363 [2004]). Although a § 205-e claim may be predicated upon a violation of Labor Law § 27-a (Gammons v City of New York, 24 NY3d 562 [2014]), we conclude that plaintiff's injury is not the type of workplace injury contemplated by Labor Law § 27-a (see id. at 573; Williams, 2 NY3d at 368). With respect to the alleged Penal Law violations, there is no evidence that any criminal charges were brought against the fellow officer, and plaintiff offered no evidence that the officer's conduct was intentional, criminally reckless, or criminally negligent, so as to rebut the presumption that the Penal Law was not [*2]violated (see Williams, 23 NY3d at 366-367).
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 5, 2016
CLERK


