| Brady v Village of Malverne |
| 2010 NY Slip Op 06513 [76 AD3d 691] |
| August 31, 2010 |
| Appellate Division, Second Department |
| Lisa Humbertson Brady, Individually and as Administrator of theEstate of Paul R. Brady, Deceased, Appellant, v Village of Malverne et al.,Respondents, et al., Defendants. |
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In an action to recover damages for wrongful death and personal injuries, etc., the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County(Woodard, J.), entered March 26, 2009, as granted those branches of the separate motions of thedefendant Village of Malverne and the defendant Malverne Fire Department/Norwood Hook,Ladder & Hose Company #1 which were pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against each of those defendants, and, in effect, denied, as academic, thatbranch of her cross motion which was to conduct certain discovery at the premises of thedefendant Malverne Fire Department/Norwood Hook, Ladder & Hose Company #1.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's decedent, a volunteer firefighter with the defendant Malverne VolunteerFirefighter Department, sued herein as Malverne Fire Department/Norwood Hook, Ladder &Hose Company #1 (hereinafter the MVFD), was performing work on the top of a fire truck in theMFVD's fire house. Another firefighter, not realizing that the decedent was working on the topof the truck, began to drive the truck out of the fire house. The decedent was pinned between thetop of the truck and either the ceiling or a ceiling beam. He then fell from the truck, and laterdied due to the injuries he sustained.
The decedent's widow (hereinafter the plaintiff) commenced the instant action individuallyand in her capacity as the administrator of the decedent's estate. Insofar as relevant herein, theSupreme Court granted those branches of the separate motions of the defendants MVFD and theVillage of Malverne which were to dismiss the complaint insofar as asserted against each ofthose defendants on the ground that General Municipal Law § 205-a is not applicable to avolunteer firefighter's line-of-duty injuries sustained in a fire house, and, in effect, denied, as[*2]academic, that branch of the plaintiff's cross motion whichwas to compel certain discovery.
We affirm, but for a reason different from that stated by the Supreme Court. The plaintiff'sclaims asserted against the MVFD and the Village (hereinafter together the respondents) arebarred by Volunteer Firefighters' Benefit Law § 19. That provision makes the benefitsprovided by the Volunteer Firefighters' Benefit Law the exclusive remedy of an administrator ofa volunteer firefighter's estate, a volunteer firefighter's spouse, "or anyone entitled to recoverdamages" on account of a line-of-duty injury sustained by a volunteer firefighter, against, amongothers: "(1) the political subdivision liable for the payment of such benefits, (2) the politicalsubdivision regularly served by the fire company of which the volunteer fireman is a member,whether or not pursuant to a contract for fire protection, even though any such politicalsubdivision is not liable for the payment of such benefits in the circumstances, and (3) anyperson or agency acting under governmental or statutory authority in furtherance of the duties oractivities in relation to which any such injury resulted." Since the plaintiff seeks to recoverdamages both in her capacity as the administrator of the decedent's estate, and in her individualcapacity as his widow, and the respondents are among those enumerated in the statute, theplaintiff's claims asserted against them here are barred (see Gresis v Garth Manor Corp.,20 AD2d 726 [1964]).
There is no merit to the plaintiff's contention that, notwithstanding the exclusivity provisionof the Volunteer Firefighters' Benefit Law, she is nonetheless entitled to recover from therespondents under the provisions of General Municipal Law § 205-a. Contrary to hercontention, General Municipal Law § 205-a does not provide for a recovery from therespondents in addition to that provided by the various provisions of the Volunteer Firefighters'Benefit Law. The Legislature was clearly aware of the provisions of the General Municipal Law,first enacted in 1909, when it enacted the Volunteer Firefighters' Benefit Law in 1956 (seeMemorandum of Joint Legislative Committee on Fire Laws, reprinted in McKinney's ConsLaws of NY, Book 63B, at xi, referring to General Municipal Law § 205), and did notprovide an exception to the Volunteer Firefighters' Benefit Law for General Municipal Law§ 205-a. When it subsequently amended General Municipal Law § 205-a in 1996and again in 1999, the Legislature again failed to provide that the additional remedies containedin General Municipal Law § 205-a were in addition to, and not barred by, the provisions ofVolunteer Firefighters' Benefit Law § 19. The Legislature is presumed to know the law inexistence at the time it enacts legislation which, in this case, includes our 1964 holding inGresis, as well as the effect and implication of its own enactments (see Llanos v Shell Oil Co., 55 AD3d796, 798 [2008]; Matter ofRhodanna C.B. , 36 AD3d 106, 109 [2006]; see also Matter of Department of SocialServs. v Thomas J. S., 100 AD2d 119, 128 [1984]). Since the Legislature failed toprovide that the additional rights granted pursuant to General Municipal Law § 205-a werenot barred by Volunteer Firefighters' Benefit Law § 19, there is no basis to depart from ourprevious holding in Gresis and now permit the plaintiff to proceed under GeneralMunicipal Law § 205-a.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Florio, J.P., Angiolillo, Hall and Austin, JJ., concur. [Prior Case History:2009 NY Slip Op 30688(U).]