Opinion
April 29, 1985
Appeal from the Supreme Court, Queens County (Goldstein, J.).
Order modified, on the law, by granting the appellants' motion only to the extent of dismissing the third cause of action insofar as it purports to assert a claim for loss of consortium, etc., pursuant to the prescriptions of General Municipal Law § 205-a. As so modified, order affirmed, without costs or disbursements.
The male plaintiff, a fire fighter employed by the Fire Department of the City of New York, was injured when, in the course of fighting a fire in a garden apartment owned and operated by defendants, the floor beneath him collapsed and he fell into the fire below.
He and his wife subsequently commenced the instant lawsuit, asserting three causes of action. The first and second causes of action, premised upon a common-law negligence theory and the prescriptions of General Municipal Law § 205-a respectively, sought the recovery of damages, inter alia, for the "serious and permanent" injuries sustained by the plaintiff husband while fighting the subject fire. The third cause of action encompassed a claim by the plaintiff wife for loss of consortium, etc., as a result of her husband's injury. The wife's claim, though ambiguously worded, was apparently premised upon a theory of common-law negligence and the prescriptions of General Municipal Law § 205-a.
Issue was joined, and defendants subsequently moved for partial summary judgment dismissing the first and third causes of action "upon the ground that [they] * * * have no merit and are insufficient at law". Special Term denied the motion in its entirety, resulting in the instant appeal.
Viewing the record in the light most favorable to the plaintiffs, the parties opposing the motion for partial summary judgment ( Waldron v. Wild, 96 A.D.2d 190), we conclude that plaintiffs' allegations of negligence present questions of fact ( see, McGee v. Adams Paper Twine Co., 26 A.D.2d 186, affd 20 N.Y.2d 921), the resolution of which necessitates the completion of discovery proceedings or trial ( see, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065; Mack v. Gregory Mem. Hosp., 90 A.D.2d 969; Rueda v. Daval Variety, 85 A.D.2d 660).
However, the third cause of action must be dismissed to the extent it purports to assert a claim for loss of consortium, etc., pursuant to General Municipal Law § 205-a. Said section, which affords an "[a]dditional right of action to certain injured or representatives of certain deceased firemen" as prescribed therein, does not authorize recovery for loss of consortium, etc., by the spouse of a fire fighter injured in the line of duty. Any change in the scope of the statute must be effected by the Legislature, not the courts ( cf. Liff v. Schildkrout, 49 N.Y.2d 622). O'Connor, J.P., Weinstein, Brown and Kunzeman, JJ., concur.