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Wadler v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

DAVID WADLER, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 3, 2008, which denied plaintiff's motion for summary judgment on the issue of liability and granted defendants' cross motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 5, 2008, which denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a non-appealable paper.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Tom, Buckley, Moskowitz, Renwick, JJ.

116207/06

Plaintiff, a police officer, was injured while driving his assigned police car across a security barrier at the entrance to the parking garage at One Police Plaza. The four-foot-high barrier had been lowered to permit plaintiff to pass but was raised again before his car cleared it, and the front end of the car was jerked into the air. Plaintiff is barred by the firefighter's rule from recovering on his common-law negligence claims because "the acts undertaken in the performance of police duties placed him [] at increased risk for that accident to happen" (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 440 [1995]; Melendez v City of New York, 271 AD2d 416, 417 [2000]; Simons v City of New York, 252 AD2d 451 [1998]; see also Grogan v City of New York, 259 AD2d 240 [1999]).

We have considered plaintiff's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081218

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