| Lynch v Waters |
| 2011 NY Slip Op 02319 [82 AD3d 1719] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| Donna Prince Lynch, Individually and as Parent and NaturalGuardian of Philip Lawrence Lynch, an Infant, and as Administratrix of the Estate of TimothyJohn Lynch, Deceased, Respondent-Appellant, v Mike Waters, as Fire ControlCoordinator of County of Onondaga, et al., Appellants-Respondents/Third-PartyPlaintiffs-Appellants. The Pompey Hill Fire District et al., Third-Party Defendants-Respondents,et al., Third-Party Defendant. (Appeal No. 2.) |
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Motion insofar as it sought in the alternative leave to appeal to the Court of Appeals be andthe same hereby is denied and the motion insofar as it sought reargument is granted in part and,upon reargument, the majority memorandum and order entered December 30, 2010 (79 AD3d1709 [2010]) is vacated and the following majority memorandum and order is substitutedtherefor:
It is hereby ordered that the amended order so appealed from is modified on the law bydenying those parts of the motion of third-party defendants the Pompey Hill Fire District, thePompey Hill Fire Department, Richard Abbott, in his official capacity as an Assistant Chief ofthe Pompey Hill Fire Department, and Mark Kovalewski, in his official capacity as an AssistantChief of the Pompey Hill Fire Department, for summary judgment dismissing the complaintagainst the Pompey Hill Fire District and the Pompey Hill Fire Department, denying the motionof third-party defendants the Village of Manlius and the Manlius Fire Department, reinstating thethird-party complaint against third-party defendants the Pompey Hill Fire District, the PompeyHill Fire Department, the Village of Manlius and the Manlius Fire Department and granting thoseparts of plaintiff's cross motion to dismiss the affirmative defenses of those third-partydefendants pursuant to General Municipal Law § 205-b and as modified the amended orderis affirmed without costs, and the matter is remitted to Supreme Court, Onondaga County, forfurther proceedings in accordance with the following memorandum: Plaintiff commenced thisaction, individually and as the parent and natural guardian of her son and the administratrix of theestate of her husband (decedent), seeking damages for, inter alia, the wrongful death of decedent.Decedent, a volunteer firefighter, was killed while fighting a fire that started in the basement of ahouse located in the Town of Pompey. According to plaintiff, defendants/third-party plaintiffs(hereafter, defendants) are liable pursuant to General Municipal Law § 205-a. Defendantsthereafter commenced a third-party action for common-law contribution "and/or"indemnification. Supreme Court granted the motion of third-party defendants the Pompey HillFire District and the Pompey Hill Fire Department (collectively, Pompey Hill defendants) andthird-party defendants Richard Abbott and Mark Kovalewski, in their official capacities asAssistant Chiefs of the Pompey Hill Fire Department (collectively, individual defendants), as[*2]well as the motion of third-party defendants the Village ofManlius and the Manlius Fire Department (collectively, Manlius defendants), for summaryjudgment dismissing the third-party complaint against them. The court also denied defendants'cross motion for leave to amend the third-party complaint to include, inter alia, allegations ofwillful negligence on the part of third-party defendant Raymond Dill, in his official capacity asDeputy Chief of the Manlius Fire Department, the Pompey Hill defendants and the Manliusdefendants and denied as moot plaintiff's cross motion to dismiss "any [and] all affirmativedefense[s] brought by any parties under Firefighters' Benefit Law [§] 19 and GeneralMunicipal Law [§] 205-b." In addition, the court sua sponte dismissed the third-partycomplaint against Dill.
We note at the outset that this Court improperly deemed plaintiff's cross appeal from theamended order abandoned and dismissed for failure to perfect within nine months of service ofthe notice of appeal (see 22 NYCRR 1000.12 [b]). The cross motion of plaintiff forpermission for an extension of time to file her brief encompassed both the court's original orderand the amended order, and this Court incorrectly granted that cross motion only with respect tothe original order. In view of our error, we exercise our discretion to treat the cross appeal fromthe amended order as properly perfected (see generally CPLR 5520 [c]; Crane-Hogan Structural Sys., Inc. v ESLSDev., LLC, 77 AD3d 1302 [2010]).
We agree with defendants on their appeal and with plaintiff on her cross appeal that thePompey Hill defendants and the Manlius defendants are not immune from liability pursuant toGeneral Municipal Law § 205-b. We thus conclude that the court erred in granting thoseparts of the motion of the Pompey Hill defendants and the individual defendants seekingsummary judgment dismissing the complaint against the Pompey Hill defendants and in grantingthe motion of the Manlius defendants. For the same reasons, we conclude that the court erred indenying those parts of plaintiff's cross motion seeking to dismiss the affirmative defenses of thePompey Hill defendants and the Manlius defendants pursuant to section 205-b. We thereforemodify the amended order accordingly. "It is fundamental that a court, in interpreting a statute,should attempt to effectuate the intent of the Legislature" (Patrolmen's Benevolent Assn. ofCity of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). Inasmuch as "the clearestindicator of legislative intent is the statutory text, the starting point in any case of interpretationmust always be the language itself" (Majewski v Broadalbin-Perth Cent. School Dist., 91NY2d 577, 583 [1998]; see FeherRubbish Removal, Inc. v New York State Dept. of Labor, Bur. of Pub. Works, 28 AD3d1, 3-4 [2005], lv denied 6 NY3d 711 [2006]). "If the 'language . . . isclear and unambiguous, courts must give effect to its plain meaning' " (Matter of M.B., 6 NY3d 437, 447[2006], quoting State of New York vPatricia II., 6 NY3d 160, 162 [2006]).
Pursuant to General Municipal Law § 205-b, "[m]embers of duly organized volunteerfire companies . . . shall not be liable civilly for any act or acts done by them in theperformance of their duty as volunteer firefighters, except for wilful negligence or malfeasance."Thus, under the plain language of the statute, the immunity conferred by section 205-b appliesonly to individual volunteer firefighters, not their municipal employers (see Rosenberg vFuller Rd. Fire Dept., 34 AD2d 653, 654 [1970], affd sub nom. Rosenberg v Town ofOyster Bay, 28 NY2d 816 [1971]; Sawyer v Town of Lewis, 6 Misc 3d 1024[A],2003 NY Slip Op 51751[U], *6 [2003], mod on other grounds 11 AD3d 938 [2004];see Tobacco v North Babylon Volunteer Fire Dept., 182 Misc 2d 480, 483-484[1999], affd 276 AD2d 551 [2000]; Ryan v Town of Riverhead, 2010 NY SlipOp 30661[U] [2010]). The court thus properly granted those parts of the motion of the PompeyHill and individual defendants for summary judgment dismissing the complaint against theindividual defendants. There is nothing [*3]in the statute,however, that similarly confers immunity upon fire districts or other municipal entities. To thecontrary, the second sentence of section 205-b provides that "fire districts created pursuant to lawshall be liable for the negligence of volunteer firefighters duly appointed to serve therein in theoperation of vehicles owned by the fire district upon the public streets and highways of the firedistrict." Indeed, General Municipal Law § 205-b is entitled "Relief of volunteerfirefighters engaged in the performance of duty as such firefighters from civil liability andliability of fire districts for the acts of volunteer firefighters." The plain language of the statutethus reflects the Legislature's dual purposes in enacting section 205-b: first, to immunizevolunteer firefighters from civil liability for ordinary negligence and, second, to shift liability forsuch negligence to the fire districts that employ them (see Sikora v Keillor, 17 AD2d 6, 8[1962], affd 13 NY2d 610 [1963]).
The Pompey Hill defendants and the Manlius defendants contend that the Legislatureintended that fire departments and municipalities be subject to vicarious liability only forfirefighters' negligent operation of vehicles. Their reliance on the second sentence of GeneralMunicipal Law § 205-b in support of that contention is misplaced. In Thomas vConsolidated Fire Dist. No. 1 of Town of Niskayuna (50 NY2d 143 [1980]), the Court ofAppeals rejected a similar contention, namely, that section 205-b impliedly exempts fire districtsfrom liability except as specifically provided by that section. The Court explained the historicalcontext of section 205-b: "Although the State waived its immunity from liability in 1929 with theenactment of section 8 of the Court of Claims Act, this waiver of immunity was not found to beapplicable to the local subdivisions of the State until 1945, when [the Court of Appeals] issuedits decision in Bernardine v City of New York (294 NY 361). It thus appears that in1934, the year [General Municipal Law § ] 205-b was enacted, the Legislature hadintended to expand, not restrict, the liability of fire districts . . . In other words, theLegislature sought to assure that there would be some liability on the part of the fire districtswhere previously there had been some doubt. To now read section 205-b as restrictingliability—as exempting a fire district from liability in all situations other than thatprescribed in the section—would be error" (id. at 146 [emphasis added]).
The Pompey Hill defendants and the Manlius defendants further contend that, becauseindividual firefighters are immune from liability pursuant to General Municipal Law §205-b, they cannot be held vicariously liable for the alleged negligence of those firefighters. Wereject that contention. The Court of Appeals rejected a similar argument in Tikhonova v Ford Motor Co. (4 NY3d621, 623 [2005]), concluding that a vehicle owner may be held vicariously liable pursuant toVehicle and Traffic Law § 388 for the negligence of a diplomat driver who is immunefrom suit under 22 USC § 254d. The Court distinguished Sikora (13 NY2d 610,affg 17 AD2d 6 [1962]), in which it "affirmed, without opinion, the Appellate Division'sdetermination that no liability attaches to a vehicle owner where the negligent driver (a volunteerfirefighter) was immune from suit under General Municipal Law § 205-b"(Tikhonova, 4 NY3d at 625). The Court noted that a contrary result in Sikora"would have discouraged volunteers from responding to emergencies by reducing the number ofpeople willing to lend vehicles to those volunteers" (id.). Here, the policy reasonsunderlying the immunity afforded to volunteer firefighters individually, i.e., to encourageindividuals to volunteer for public service and to protect their personal assets from liability forordinary negligence do not apply to the entities that employ them (see id.; Sikora,17 AD2d at 7-8; see also Sponsor's Mem, Bill Jacket, L 1934, ch 489; Letter fromFiremen's Assn of State of NY, Apr. 28, 1934, at 1, Bill Jacket, L 1934, ch 489).
With respect to the contention of plaintiff that the court erred in denying that part of her[*4]cross motion to dismiss the Pompey Hill defendants'affirmative defense based upon Volunteer Firefighters' Benefit Law § 19, we note that thecourt did not address the merits of that issue because it denied plaintiff's cross motion as moot. Inview of our determination, we conclude that plaintiff's cross motion with respect that issue is nolonger moot, and we therefore remit the matter to Supreme Court to determine that part ofplaintiff's cross motion. Finally, we note that neither defendants on their appeal nor plaintiff onher cross appeal raised any issue concerning the court's sua sponte dismissal of the third-partycomplaint against Dill, and they therefore have abandoned any issues with respect thereto (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]).
All concur except Fahey, J., who dissents in part and votes to grant the motion forreargument in part but in addition votes to grant leave to appeal to the Court of Appeals, thealternative relief sought in the motion. Present—Smith, J.P., Centra, Fahey and Peradotto,JJ.