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Wulforst v. Hughes

Appellate Division of the Supreme Court of New York, Second Department
Jun 12, 1995
216 A.D.2d 383 (N.Y. App. Div. 1995)

Opinion

June 12, 1995

Appeal from the Supreme Court, Nassau County (Murphy, J.).


Ordered that the order is affirmed, with costs.

The plaintiff Thomas Wulforst, a volunteer firefighter and certified "fire police officer", was struck by the defendant's vehicle while performing traffic control duties in connection with firefighting activities being conducted nearby. The Supreme Court granted the defendant's summary judgment motion on the ground that the common law negligence action is barred by the "firefighter's rule" (see, Ruocco v. New York City Tr. Auth., 85 N.Y.2d 423; Santangelo v. State of New York, 71 N.Y.2d 393).

We agree with the Supreme Court that Thomas Wulforst's common-law negligence claim is barred by the firefighter's rule because the injury which he sustained was related to the particular dangers which he was expected to assume as part of his duties (see, Ruocco v. New York City Tr. Auth., supra; Cooper v City of New York, 81 N.Y.2d 584, 590). The record clearly evinces that Mr. Wulforst was exposed to a heightened risk of being struck by a motor vehicle and thereby sustaining injury when he assumed his position in the middle of an intersection in furtherance of his traffic control duties at the fire scene (see, Ruocco v. New York City Tr. Auth., supra). As no material triable issue of fact exists in this regard, summary judgment was properly awarded to the defendant.

We reject the plaintiffs' contention that Mr. Wulforst was a "police officer" and thus within the class of plaintiffs in whose favor General Municipal Law § 205-e was created. Indeed, General Municipal Law § 205-e includes within its purview only police officers and not, as the plaintiffs contend, peace officers such as Mr. Wulforst (see, General Municipal Law § 209-c; Pane v City of New York, 177 A.D.2d 688). As such, the court properly denied the plaintiffs' application for leave to serve an amended complaint so as to assert a claim based upon General Municipal Law § 205-e (see generally, Bobrowsky v. Lexus, 215 A.D.2d 424; Mathiesen v. Mead, 168 A.D.2d 736). Sullivan, J.P., Miller, Pizzuto and Friedmann, JJ., concur.


Summaries of

Wulforst v. Hughes

Appellate Division of the Supreme Court of New York, Second Department
Jun 12, 1995
216 A.D.2d 383 (N.Y. App. Div. 1995)
Case details for

Wulforst v. Hughes

Case Details

Full title:THOMAS E. WULFORST et al., Appellants, v. MARIAN HUGHES, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 12, 1995

Citations

216 A.D.2d 383 (N.Y. App. Div. 1995)
628 N.Y.S.2d 165

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