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Martell v. City of Utica

184 A.D.2d 1009 Court N.Y. App. Div. Decision date 1992-06-05 English

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p. 1009
Richard Martell et al., Respondents, v City of Utica, Appellant. John R. Niemiec et al., Respondents, v City of Utica, Appellant.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs, professional firefighters Richard Martell and John R. Niemiec, commenced these consolidated actions against defendant City, seeking recovery for injuries sustained during their unsuccessful attempt to rescue three young children from their burning home. Those

p. 1010
portions of the complaints alleging negligence in the methods and procedures used to fight the fire should have been dismissed. It is well settled that a firefighter may not maintain an action against a municipality based upon errors in judgment at the scene of a fire (Kenavan v City of New York, 70 NY2d 558 , 568; Austin v City of Buffalo, 179 AD2d 1075 ; McGee v Adams Paper & Twine Co., 26 AD2d 186 , 197, affd 20 NY2d 921 ). That claim is barred by the Fireman’s Rule, notwithstanding conclusory assertions by plaintiffs’ expert that the officer in charge violated "immutable procedures” in the timing and placement of water lines. The record contains uncontradicted evidence that the deployment of water lines at a fire is left to the sound discretion of the officer in charge, and plaintiffs presented no proof showing the existence of any invariable rule or immutable procedure in the fire department prohibiting the officer in charge from deploying water lines in a particular manner (see, McCormack v City of New York, 172 AD2d 357 , 359, lv granted 78 NY2d 863 ).

Summary judgment was properly denied in part with respect to plaintiffs’ allegations that their injuries resulted from defective protective equipment (see, MacClave v City of New York, 24 AD2d 230 , affd 19 NY2d 892 ). The record contains conflicting evidence concerning whether the equipment was reasonably safe and whether plaintiffs’ injuries were caused or exacerbated by the allegedly deficient equipment.

The order appealed from is modified by striking the third decretal paragraph and by granting defendant’s motion to dismiss those portions of plaintiffs’ complaints alleging negligence in the methods and procedures used to fight the fire. (Appeal from Order of Supreme Court, Oneida County, Parker, J. — Summary Judgment.) Present — Callahan, J. P., Green, Pine, Lawton and Davis, JJ.

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