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November 21, 1978

Gerard HAEHL, as Administrator of the goods, chattels and credits of Janet M. Haehl, Deceased, et al., Plaintiffs,
VILLAGE OF PORT CHESTER et al., Defendants

The opinion of the court was delivered by: SAND

These consolidated actions for personal injury and wrongful death have been brought by the victims of a fire and their representatives. The present motion is brought by a third-party defendant, the Town of Greenwich, Connecticut. Greenwich contends that as a matter of law it is not liable to the defendant/third party plaintiffs, and seeks an order dismissing the third-party complaints pursuant to F.R.Civ.P. 12(c) or for summary judgment pursuant to F.R.Civ.P. 56.

I. Conflicts of Laws

 The fire which gives rise to plaintiffs' actions occurred on the night of June 29-30, 1974. Plaintiffs and plaintiffs' decedents were on the premises of Gulliver's Restaurant ("Gulliver's"), which was located in a building complex on the New York-Connecticut border. It appears that the fire was set in a bowling alley which adjoined the restaurant.

 Two fire departments responded to the fire: that of the Village of Port Chester ("Port Chester"), and that of the Town of Greenwich ("Greenwich"). Gulliver's and Port Chester are among the defendants, and they in turn have impleaded Greenwich.

 As a federal court sitting in diversity jurisdiction, we of course apply the choice of law rules of New York. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). New York follows an "interest analysis" approach to such questions: the court applies the law "of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 12 N.Y.2d 473, 481, 240 N.Y.S.2d 743, 749, 191 N.E.2d 279, 283 (1963). The New York Court of Appeals has emphasized in a recent case, however, that "(i)t is true that Lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances." (citations omitted). Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 699, 405 N.Y.S.2d 441, 442, 376 N.E.2d 914, 915 (1978). We must therefore determine, first, the state of the wrong, and second, if it be determined that the state of the wrong is New York, whether there exist such extraordinary circumstances as to warrant applying the law of Connecticut to the issue of Greenwich's immunity from suit.

 As noted above, Gulliver's Restaurant was located in part in the State of New York and in part in Connecticut. From the papers now before the Court, it appears that the restaurant was primarily within the State of New York. *fn1" Greenwich concedes that its fire department entered New York, although it disputes the extent of its activities within that state. The third-party plaintiffs allege that the fire was set in New York (in a bowling alley adjoining the restaurant), that the Greenwich fire fighting activities were conducted "largely" within the State of New York, that the decedents died within that state, and that Greenwich "undertook to coordinate their efforts with the (Port Chester) fire department". *fn2"

 Further elaboration of these factual allegations must await future proceedings in these actions. On the present state of the record, however, the Court deems the state of the wrong to be New York. Thus, under the recent statement of New York's conflicts approach, we must determine whether there exist extraordinary circumstances which warrant displacing the law of New York in favor of Connecticut law.

 Under Connecticut common law, a municipality is absolutely immune from liability for injuries caused by the negligence of its firemen. By statute, however, the municipality is obligated to indemnify the fireman for "all sums which such fireman becomes obligated to pay by reason of liability imposed . . . by law for damages to person or property . . .". *fn3" If suit is brought against the negligent fire department personnel, the municipality thus assumes the ultimate liability. Governmental immunity is abrogated for suits brought pursuant to this statute. *fn4" It is conceded, however, that the third-party plaintiffs did not follow the prescribed procedure in impleading Greenwich, and under Connecticut common law their suit would be barred. Sanders v. City of Ansonia, 33 Conn.Sup. 195, 369 A.2d 1129 (1976).

 In New York, the common law immunity of the state and its political subdivisions has been abrogated by statute. Court of Claims Act § 8 (McKinney's 1963); Bernardine v. City of New York, 294 N.Y. 361, 62 N.E.2d 604 (1945). Under New York law, a municipality is "answerable equally with individuals and private corporations for wrongs of officers and employees." Id. at 365, 62 N.E.2d at 605. Whether or not a municipality was under a duty to a plaintiff in a given case, and whether or not that duty was breached, are separate questions.

 Greenwich contends that, as a political subdivision of the State of Connecticut, the immunity it enjoys under Connecticut common law must also protect it when it enters another state. Among the "overriding legal and public policy considerations" which it argues are unique to this case, Greenwich notes that any entry of Greenwich personnel into the State of New York was motivated by a desire to further "a joint public interest of both jurisdictions, that of saving lives in the face of a serious conflagration in a public building." *fn5" Greenwich also contends that the application of New York law would have a "devastating" effect on interstate and intermunicipal relationships, to the ultimate detriment of both Connecticut and New York citizens. Finally, Greenwich alleges that "under law the fire department has no choice but to answer an alarm" and under New York law could be held liable for "abandonment or neglect". *fn6" The basis on which it is asserted that a failure to respond to a New York alarm would give rise to any liability under the laws of New York or Connecticut remains unclear to this Court, however.

 The public policy interests put forward by Greenwich for application of Connecticut's immunity doctrine are serious and weighty factors. Nevertheless, we do not believe a New York court would find them controlling, in light of the substantial interests of New York in applying its own standards.

 We note first that the plaintiffs in the third-party action are New York entities: the Town of Port Chester, itself a municipality, and a New York corporation (Gulliver's Restaurant, Inc.). As discussed Supra, we deem plaintiffs' injuries to have been suffered in New York. It appears that the only interest Connecticut has in seeing its law applied is in protecting its municipalities against liabilities incurred when they enter neighboring states. This is, of course, a very significant interest, and as Greenwich points out, it has serious implications for interstate and intermunicipal relations. We note, however, that the statute which abrogates Greenwich's governmental immunity when actions are brought against individual firemen authorizes municipalities to procure insurance against resulting indemnification liabilities, or to self-insure. Whatever difficulties may arise from the application of New York law to these actions by New York plaintiffs may also be amenable to such a solution. The problem presented by this case with respect to providing emergency services to border communities should perhaps also be addressed in an interstate compact.

 In Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972), the New York Court of Appeals stated that "New York has a deep interest in protecting its own residents, injured in a foreign state, against unfair or anachronistic statutes of that state . . .". *fn7" That case involved the guest-passenger statute of a foreign jurisdiction, which barred an action by an automobile passenger against his negligent host. The policy considerations involved in a foreign state's provision for governmental immunity are of course considerably different from those which underlie a guest-passenger statute. We believe, however, that a New York court would have a similarly deep interest in protecting its residents, injured in their own state, against a foreign immunity which it deemed "unfair or anachronistic."

 This issue has not arisen to date in the New York courts, or in any decision of the federal courts sitting in that state. We do find some guidance, however, in the decision of the district court in Rosenthal v. Warren, 374 F. Supp. 522 (S.D.N.Y.1974). Plaintiffs' decedent, a New Yorker, had died after an operation in a Massachusetts hospital. The hospital raised as a defense to the wrongful death action the charitable immunity enjoyed by Massachusetts hospitals. Lacking guidance from New York decisions, the district court analyzed the issue in light of Neumeier v. Kuehner, supra, and earlier cases in New York's developing choice of law doctrine. The court noted that New York had itself abolished the charitable immunity defense more than fifteen years earlier and characterized it as "unfair, out of step with the ...

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