Labor & Employment Law

Injured police officer allowed to file GML Section 205-e complaint

By Harvey Randall, Esq.

Injured police officer allowed to file GML Section 205-e complaint
Foley v City of New York, 43 A.D.3d 702, Appellate Division, First Department

Kim Foley, a police officer and midnight duty captain, was injured when she tripped and fell on a stairway outside the rear exit of the 43rd Precinct in the Bronx while responding to a domestic violence incident. Foley did not know what caused her to fall because there were no lights illuminating either the stairway or the rear exit. There were also no handrails on either side of the stairway. Foley and her husband, sued, alleging common-law negligence and §205-e causes of action.

The City opposed Foley?s motion for summary judgment, claiming: [1] the common-law negligence claims were barred by the ?firefighter?s rule,? and [2] that Foley had failed to properly plead a §205-e cause of action.

Supreme Court agreed that the firefighter?s rule barred the Foley?s common-law negligence claims and that the complaint and proposed amended complaint were legally insufficient to sustain a §205-e cause of action.

The Appellate Division modified the lower court?s order adhering to its prior decision by reinstating the Foley?s General Municipal Law §205-e cause of action and granting the Foleys permission to serve an amended complaint or a supplemental bill of particulars.

Although the Appellate Division ruled that Supreme Court properly found that the firefighter?s rule bars the Foleys? common-law negligence claims since Foley tripped and fell while performing her duties as a police officer, her §205-e claim should be reinstated because their belated identification of several sections of the Administrative Code ?entails no new factual allegations, raises no new theories of liability, and has caused no prejudice to defendant.?

The Appellate Division, citing Williams v City of New York, 2 NY3d 352, said that in light of the policy that General Municipal Law §205-e causes of action should be applied ?expansively? so as to favor recovery by police officers whenever possible, decided that the Foleys should be allowed to serve an amended complaint.

Full post as published by New York Public Personnel Law on April 23, 2008 (boomark / email).