Blake v. Ford

98 A.D.2d 972, 470 N.Y.S.2d 255, 1983 N.Y. App. Div. LEXIS 21306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1983
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion granted, in accordance with the following memorandum: Four fire fighters were injured when their fire truck collided with the defendants’ automobile and they brought suit under section 205-a of the General Municipal Law. The defendants moved for summary judgment to dismiss the complaint on the ground that it failed to allege that the plaintiffs had suffered “serious injury” within the meaning of the No-Fault Law (Insurance Law, § 673 et seq.). Special Term denied the motion, holding that the rights provided fire fighters under section 205-a of the General Municipal Law are not limited by the provisions of the No-Fault Law. We reverse. Section 205-a, “[i]n addition to any other right of action or recovery under any other provision of law,” gives fire fighters a statutory cause of action for injuries incurred during the performance of duty caused by the negligence of any person in failing to comply with the requirement of any statute, ordinance, or rule of any governmental agency. We have previously held that this section applies to injuries sustained by fire fighters in a motor vehicle accident (Coady v Carnes, Supreme Ct, Erie County, March 31, 1965, Lawless, J., affd 27 AD2d 647). The subsequently enacted No-Fault Law in plain language states that “[njotwithstanding any other law, in any action * * * for personal injuries arising out of negligence in the use or operation of a motor vehicle * * * there shall be no right of recovery for non-economic loss, except in the case of serious injury”. (Insurance Law, § 673, subd 1; emphasis added.) Thus, the No-Fault Law restricts the right of recovery in all motor vehicle accident cases involving covered persons. Notwithstanding section 205-a, in the absence of a showing of “serious injury”, fire fighters may not maintain an action against a covered person for personal injuries arising out of the use of a motor vehicle. Since there is an indication in the record that some of the fire fighters may have suffered serious injuries, our order is without prejudice to the rights of the plaintiffs, if they be so advised, to apply at Special Term for leave to serve an amended complaint (see Sanders v Schiffer, 39 NY2d 727). (Appeal from order of Supreme Court, Erie County, Doyle, J. — summary judgment.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.