Brady v. Vill. of Malverne

907 N.Y.S.2d 68

76 A.D.3d 691

Lisa Humbertson BRADY, etc., appellant,

v.VILLAGE OF MALVERNE, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 31, 2010.

McElfish Law Firm, P.C., New York, N.Y. (Raymond D. McElfish of counsel), for appellant.

Congdon, Flaherty, O'Callaghan, Uniondale, N.Y. (Kathleen D. Foley of counsel), for respondents.

White, Quinlan & Staley, LLP, Garden City, N.Y. (Terence M. Quinlan and Christopher Simone of counsel), for defendant Ferrara Fire Apparatus, Inc.

ANITA R. FLORIO, J.P., DANIEL D. ANGIOLILLO, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for wrongful death and personal injuries, etc., the plaintiff appeals, 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 the defendant Village of Malverne and the defendant Malverne Fire Department/ Norwood Hook, Ladder & Hose Company # 1which were pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of those defendants, and, in effect, denied, as academic, that branch of her cross motion which was to conduct certain discovery at the premises of the defendant 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 Volunteer Firefighter 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 the MVFD's fire house. Another firefighter, not realizing that the decedent was working on the top of the truck, began to drive the truck out of the fire house. The decedent was pinned between the top of the truckand either the ceiling or a ceiling beam. He then fell from the truck, and later died due to the injuries he sustained.

The decedent's widow (hereinafter the plaintiff) commenced the instant action individually and in her capacity as the administrator of the decedent's estate. Insofar as relevant herein, the Supreme Court granted those branches of the separate motions of the defendants MVFD and the Village of Malverne which were to dismiss the complaint insofar as asserted against each of those defendants on the ground that General Municipal Law § 205-a is not applicable to a volunteer firefighter's line-of-duty injuries sustained in a fire house, and, in effect, denied, as academic, that branch of the plaintiff's cross motion which was to compel certain discovery.

We affirm, but for a reason different from that stated by the Supreme Court. The plaintiff's claims asserted against the MVFD and the Village (hereinafter together the respondents) are barred by Volunteer Firefighters' Benefit Law § 19. That provision makes the benefits provided by the Volunteer Firefighters' Benefit Law the exclusive remedy of an administrator of a volunteer firefighter's estate, a volunteer firefighter's spouse, "or anyone entitled to recover damages" on account of a line-of-duty injury sustained by a volunteer firefighter, against, among others:

"(1) the political subdivision liable for the payment of such benefits, (2) the political subdivision 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 political subdivision is not liable for the payment of such benefits in the circumstances, and (3) any person or agency acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted."

Since the plaintiff seeks to recover damages both in her capacity as the administrator of the decedent's estate, and in her individual capacity as his widow, and the respondents are among those enumerated in the statute, the plaintiff's claims...