Opinion
November 6, 1967
Appeal from three orders of Supreme Court, Chemung County, in separate negligence actions which denied defendant's motion to amend its answers and serve amended answers to the complaints to plead affirmative defenses in mitigation of damages. The three plaintiffs were injured about midnight on January 3, 1963 when a police vehicle owned by the defendant collided with a fire truck also owned by the defendant. In Action No. 1, plaintiff Szybura was a policeman employed by the defendant and was operating the police vehicle at the time of the collision. In Actions Nos. 2 and 3, plaintiffs Neiley and Hentz were firemen employed by the defendant. Neiley was operating the fire truck at the time of the collision and Hentz was a passenger on the fire truck. Pursuant to the provisions of section 207-a Gen. Mun. of the General Municipal Law, the defendant has paid the salary, medical expenses and hospital expenses of the firemen injured in the accident during the period of their disability and, pursuant to the provisions of section 207-c Gen. Mun. of the General Municipal Law and section 199-a of the Charter of the City of Elmira, the defendant has paid the salary, medical and hospital expenses of the plaintiff Szybura, the policeman, during his period of disability. Each of the injured city employees has instituted a negligence action against the defendant, and the defendant seeks to plead as an affirmative defense in mitigation of damages, the amounts paid by the defendant for salary, medical, surgical, hospital and associated expenses arising out of the injury. Section 207-a Gen. Mun. of the General Municipal Law provides as follows: "Any paid fireman of a fire company or fire department of a city of less than one million population, or town, village or fire district, who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment, shall be paid by the municipality or fire district by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased, and, in addition, such municipality or fire district shall be liable for all medical treatment and hospital care furnished during such disability. * * * Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality or fire district aforesaid for reimbursement in such sum or sums actually paid as a salary or wages and/or for medical or hospital treatment, as against any third party against whom the fireman shall have a cause of action for the injuries sustained." Section 207-c Gen. Mun. of the General Municipal Law contains similar provisions relating to policemen employed by the city and injured as a result of the performance of their duties. These sections clearly direct the municipality to pay the salaries and medical expenses of policemen and firemen injured in the performance of their duties during their periods of disability, and thereupon provide a cause of action for moneys expended thereunder against any third party against whom the employee shall have a cause of action for the injuries sustained. The general rule is that damages cannot be mitigated or reduced because of payments received by the injured party from disability compensation, pension funds, retirement allowance, or insurance which is effected by the injured party. ( Seidel v. Maynard, 279 App. Div. 706; Healy v. Rennert, 9 N.Y.2d 202; Cady v. City of New York, 19 A.D.2d 822, affd. 14 N.Y.2d 660; Lehr v. City of New York, 16 A.D.2d 702; 25 C.J.S., Damages, § 99, subds. [1], [2], [3]; 13 N.Y. Jur., Damages, § 153.) However, in cases where payments are made to the injured party in the form of wages or medical services, or by reason of insurance which is paid for by the wrongdoer, evidence by the defendant of such payments or benefits to the injured party has been held to be admissible in mitigation of damages. ( Drinkwater v. Dinsmore, 80 N.Y. 390; Coyne v. Campbell, 11 N.Y.2d 372; Moore v. Leggette, 24 A.D.2d 891, affd. 18 N.Y.2d 864.) In the case of Employers' Liab. Assur. Corp. v. Daley ( 271 App. Div. 662, affd. 297 N.Y. 745), the defendant, as a volunteer fireman, had received payments pursuant to section 205 Gen. Mun. of the General Municipal Law for lost wages and medical expenses incurred by reason of injuries sustained in a collision between a fire truck and an automobile. Plaintiff made the payments to the defendant under a policy of insurance indemnifying the town responsible for the payments under section 205. The defendant later settled his action for negligence against the owner and operator of the automobile, and plaintiff sought to recover from that settlement the amounts paid to the defendant pursuant to the statute. The court held that the payments so made were not recoverable from the proceeds of the negligence action, and that the liability of the owner and operator of the automobile to the defendant was a tortious one, while that of the town was "statutory and so quasi-contractual." The court further held that the owner and operator were not subject to liability under section 205 and found it significant that, although section 207-a Gen. Mun. of the General Municipal Law gave a municipality a cause of action for reimbursement against a third person, there was no like provision in section 205. In the case of Matter of Birmingham v. City of Niagara Falls ( 282 App. Div. 970), this court held that a municipality which had paid wages to an injured fire captain, pursuant to section 207-a Gen. Mun. of the General Municipal Law, was entitled to reimbursement to the extent of the amount of workmen's compensation benefits paid for the period of disability during which the municipality had paid full wages. The court stated: "We think that these payments of full wages during the period of disability are `payments to an employee in like manner as wages' even though made under the compulsion of section 207-a Gen. Mun. of the General Municipal Law. To hold otherwise would mean that the employee actually profits from workmen's compensation and is receiving double benefits. Were the city a self-insurer it would mean that it would be required to pay both full wages and compensation benefits." The provisions of sections 207-a Gen. Mun. and 207-c Gen. Mun. of the General Municipal Law, which provide a cause of action against a third-party tort-feasor for amounts advanced to the injured municipal employee, was intended to make the third-party tort-feasor responsible to the municipality for such advances and to no one else. If the plaintiffs in actions involved here are permitted to recover for wages paid in full and medical services provided, there is nothing to prevent the municipality from recovering also for the same expenditures as provided by statute. The fact that in the instant case the municipality and alleged wrongdoer are the same party is unusual, but the result should be the same as if the wrongdoer was a different party. It would be unjust to permit the third-party wrongdoer to be subjected to double claims for wages paid and medical services provided, and the motion for permission to plead such payments in mitigation of damages should be granted. That part of the order in Action No. 3 granting plaintiffs' motion to amend the ad damnum clause should be affirmed. Orders in Action No. 1 and Action No. 2 reversed, on the law and the facts, and motions granted; order in Action No. 3 modified, on the law and the facts, so as to grant defendant's motion for permission to serve an amended answer to plead the affirmative defense in mitigation of damages and, as so modified, affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J. [ 53 Misc.2d 442.]