Castro v. Trost

237 A.D.2d 983, 655 N.Y.S.2d 214, 1997 N.Y. App. Div. LEXIS 3625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1997
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted, cross motions denied and complaint reinstated. Memorandum: Samuel Castro (plaintiff) was injured when struck by a vehicle while at the scene of an accident to which he had responded in the course of his duties as a firefighter. This action was commenced to recover damages for injuries sustained in that accident. Defendants, owners and drivers of vehicles at the accident scene, raised the firefighter’s rule (see, General Municipal Law § 205-a) as an affirmative defense. Supreme Court denied plaintiffs’ motion to dismiss that defense and granted defendants’ cross motions for summary judgment dismissing the complaint.

During the pendency of this appeal, the Legislature amended General Municipal Law § 205-a to expand the rights of recovery for injured firefighters and enacted General Obligations Law § 11-106, which significantly restricts the scope of the "firefighter’s rule” (see, L 1996, ch 703; DiFlorio v Van Slyke [appeal No. 1], 234 AD2d 961). Those new laws are effective immediately and apply to all pending cases (see, L 1996, ch 703, § 6; DiFlorio v Van Slyke, supra). Based thereon, the affirmative defense of the firefighter’s rule should be dismissed and the complaint reinstated (see, DiFlorio v Van Slyke, supra). (Appeal from Order of Supreme Court, Erie County, Joslin, J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Boehm and Fallon, JJ.