Opinion
November 9, 1967
Appeal from a judgment of the Supreme Court which, upon petitioner's motion and the parties' pleadings and affidavits and upon the court's finding that there are no triable issues of fact, granted the petition in a proceeding under article 78 of the CPLR to compel respondent city to pay the wages and the cost of the medical treatment and hospital care of the petitioner, a paid fireman of the fire department of said city, during the period of his disability from hypoplastic anemia, from which he concededly suffers, asserted by him, and denied by the city, to have resulted from his exposure to chemical fumes and substances in the course of the performance of his assigned duty of painting the interior of a fire station. The city's liability arises, if at all, by virtue of section 207-a Gen. Mun. of the General Municipal Law, in pertinent part providing as follows: "Any paid fireman of a fire company or fire department of a city of less than one million population * * * 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 * * * 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 * * * shall be liable for all medical treatment and hospital care furnished during such disability." The critical issue tendered by respondents' denials was that of causal relationship and in determining that there was shown no triable issue of fact concerning it, the Special Term necessarily relied on the affidavit of petitioner's attending physician which, so far as here pertinent, stated: "4. That as a result of the history which your deponent obtained from the patient, the tests which were made in Binghamton and Massachusetts General Hospital and the observations which your deponent made of the patient, together with information obtained from the manufacturers of the paint used, your deponent is able to state with reasonable medical certainty that the condition which your deponent observed in the patient, and which was diagnosed as hypoplastic anemia, was a result of the exposure of the patient to the chemicals in the paint and in the paint thinners used in the course of painting the Central Fire Station in the City of Binghamton, New York." There being no factual or evidentiary showing of either the clinical tests referred to or of the informational data supplied by the paint manufacturer, these being two of the bases upon which the affiant's medical opinion was bottomed, and each being referred to in only the most conclusory fashion, we are bound to reject the medical evidence thus presented in affidavit form as inadequate for purposes of summary judgment; and, of course, these inadequacies are not cured by the manifest infirmities in the opposing papers. Judgment reversed, on the law and the facts, and motion denied, without costs, and without prejudice to its renewal upon additional proof. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.