Billups v. Wickers

In an action to recover damages for personal injuries, the defendants J.C. Wickers Roofing & Waterproofing Corp., s/h/a Jon Wickers, d/b/a Jon Wickers Restoration Co., and Jon Wickers Company, Inc., appeal, and the defendants Jackson Heights Shopping Center Company and Hyman Muss separately appeal, from so much of an order of the Supreme Court, Queens County (Rutledge, J.), dated June 23, 1992, as, denied their respective motions for summary judgment dismissing the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, the defendants’ respective motions for summary judgment dismissing the complaint are granted, and the complaint is dismissed; and it is further,

Ordered that the appellants, appearing separately and filing separate briefs, are awarded one bill of costs.

The plaintiff, a firefighter for New York City at the time of the incident, was allegedly burned by the spray-back from hot tar after responding to a fire concerning a tar kettle on a roof. The complaint alleged two causes of action, the first based upon common law negligence, and the second based upon statutory negligence pursuant to General Municipal Law § 205-a.

The plaintiff’s recovery based upon common law negligence is barred by the "fireman’s rule” (see, Cooper v City of New York, 81 NY2d 584 , 588; Santangelo v State of New York, 71 NY2d 393 ; Kenavan v City of New York, 70 NY2d 558 ). Thus, the first cause of action must be dismissed.

With respect to the plaintiff’s second cause of action based upon statutory negligence pursuant to General Municipal Law § 205-a, we find that the injury complained of was not reason