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June 5, 1967

Angela AMATO, as Administratrix ad Prosequendum of Anthony Amato, Plaintiff,
The CITY OF NEW YORK, Defendant and Third-Party Plaintiff, v. R. H. MACY & CO., International Fireworks Co., Inc., John Serpico, Individually and d/b/a International Fireworks Co., Petterson Lighterage and Towing Corporation and the United States of America, Third-Party Defendants

Wyatt, District Judge.

The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by defendant and third party plaintiff The City of New York (the City) for judgment on the pleadings (Fed.R.Civ.P. 12(c)) or in the alternative for summary judgment (Fed.R.Civ.P. 56).

 This action was commenced on September 13, 1965 by plaintiff as personal representative of Anthony Amato (decedent). The sole defendant was the City. The complaint asked substantial damages because of the death of decedent, allegedly as the result of an unfortunate accident caused by an explosion on June 23, 1964 in a fireworks barge in the Hudson River. The complaint avers that the City issued a permit to R. H. Macy Co., Inc. (Macy) for a fireworks display on June 23, 1964 and that decedent, a pyrotechnician employed by International Fireworks Co. (International), was injured by an explosion during such display. The charge against the City is negligence in that (a) the permit was wrongfully issued because Macy proposed to set off fireworks "prohibited by law to be discharged or used" within the City, (b) the fireworks barge was not inspected, (c) proper inspectors were not employed, (d) its inspectors were not supervised, (e) the fireworks were "dangerous and unfit for use", etc. The complaint also avers that the fireworks "to be used" by Macy were "prohibited types" and unlawful to be used under Administrative Code of the City of New York (Admin.Code) § C19-42.0.

 Jurisdiction is based on diversity of citizenship, plaintiff being described as one who "resides" in New Jersey and defendant being a New York municipal corporation. While an averment of residence is not sufficient as an averment of citizenship, it will be assumed that plaintiff is a citizen of New Jersey and that jurisdiction is proper under 28 U.S.C. § 1332.

 A third party complaint was filed by the City bringing in the third party defendants named in the caption and asking for relief over against them in the event the City were held liable to plaintiff. The third party defendants do not seem to concerned on this motion.

 The Penal Law of New York (§ 1894-a), McKinney's Consol.Laws, c. 40 makes it an offense to use or explode any fireworks without a permit granted by a city or other appropriate governmental subdivision. The Penal Law specifies particular information which must be set forth in the application for a permit.

 The permit authority of the City is the Fire Commissioner (the Commissioner). Admin.Code § C19-2.0(32).

 The storage, transportation or sale of certain specified types of fireworks is prohibited by the City. Admin.Code § C19-42.0.

 The storage, transportation or sale of any fireworks is unlawful unless a certificate of registration of the name of the manufacturer has been issued by the Commissioner. Admin.Code § C19-41.0.

 It appears without dispute that under date of May 26, 1964, the Commissioner issued certificate of registration M42936 covering "International Fireworks Brand" of colored shells, colored lights, showers and Roman candles manufactured by International.

 It also appears without dispute that under date of May 27, 1964, Macy filed an application for a fireworks display on June 23, 1964. Examination of the application discloses that it set forth all, or substantially all, of the information required by Penal Law § 1894-a and by the Administrative Code.

 It also appears without dispute that the Commissioner under date of June 16, 1964, issued permit M42996 to Macy for the fireworks display. The permit specified that the fireworks were to consist of "set pieces - aerial shells - colored lights Roman candles". The permit was made subject to 11 particular conditions set forth in an attachment to the permit.

 The State of New York has waived its immunity from liability and has consented to have its liability determined "in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations". Court of Claims Act, § 8. The civil divisions of the State - counties, cities, towns, villages - do not have any independent sovereignty. Thus, when the State waived its immunity, its civil divisions became liable "equally with individuals and private corporations". Bernardine v. City of New York, 294 N.Y. 361, 365, 62 N.E.2d 604, 605, 161 A.L.R. 364 (1945).

 Based on the language quoted above from Section 8 of the Court of Claims Act, decisions of the New York Courts have established the principle that the State continues to be immune in respect of acts and determinations which are discretionary, or merely administrative, or judicial, or quasi-judicial. The principle evolves because such acts and determinations, made solely as a function of sovereignty, are not comparable to any acts or ...

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