SUPREME COURT: COUNTY OF CHAUTAUQUA
JOSEPH M. ARNET and
vs Index #H-07724
DENNIS R. NELSON;
and the TOWN OF
Action brought by State Trooper for shoulder
disfigurement injury, protrusion of right clavicle,
suffered when his trooper car allegedly forced off road
enroute to headquarters.
Topics: Automobile accident; Fireman's Rule;
Amendment of Complaint for General Municipal Law Section
205-e claim; 90 day rule where Note of Issue filed in wrong
county; serious disfigurement.
DECISION and ORDER
Plaintiffs move to extend their time to file their
Note of Issue and to amend their complaint to include a
cause of action pursuant to General Municipal Law Section
205-e. That section grants to police officers a cause of
action for personal injury caused by neglect or negligence
of any person or persons who failed to comply with any of
the statutes, ordinances, rules, orders and requirements of
the federal, state or local governments.
Defendant Nelson moves to dismiss the complaint on
several grounds, namely:
(1) That the "Fireman's Rule" mandates dismissal;
(2) That plaintiff did not rebut Defendant's denial
that he had crossed into plaintiff's lane;
(3) Plaintiff failed to respond timely to defendant's
demand to resume prosecution;
(4) Plaintiffs have not proven a "serious injury.
THE FIREMAN'S RULE
At the time of the incident, Plaintiff was traveling
by car from the Jamestown Drug Task Force office to the
Falconer State Police barracks. He was not involved in any
activity which would "heighten" the risk of sustaining
The Fireman's rule applies when a police officer's
injury is connected to the special hazards associated with
police duties; where those duties increased the risk of
injury happening, and did not merely furnish the occasion
for the injury. ZANGHI v. NIAGARA FRONTIER TRANSPORTATION
COMMISSION, 85 NY2d 423 (1995.
The ZANGHI Court cited the example of a police officer
who is injured by a flower pot accidently knocked out of an
apartment window as he is walking on foot patrol as a
situation where the rule does not apply.
Plaintiff Arnet passes the "flower pot" test described
in ZANGHI, supra. He "happened to be present in a given
location, but was not engaged in any specific duty that
increased the risk of receiving that injury."
THE SERIOUS INJURY ISSUE
Plaintiff complains of a "significant disfigurement"
in the form of a permanent protrusion of the right
clavicle, some pain, some limitation of motion, as a result
of a shoulder separation caused by his one car accident.
Defendant says those injuries do not meet the
threshold as a matter of law, citing LOCATELI V. BLANCHARD,
108 AD2d 1032 (tenderness in shoulder), BENITEZ V. SEXTON,
139 AD2d 686.
The question of serious injury in this case is a
question for the jury. See PJI 2:88 B; SULLIVAN V.
DARLING, 81 MISC2d 817 which involved "a "1" by 1" pink,
puckered, amorphous shaped scar on the left shoulder";
MATULA V. CLEMENT, 132 AD2d 739 (jury question as to
whether six inch surgical scar on shoulder was significant
The jury must decide whether a reasonable person would
view the injury as "unattractive, objectionable or * * *
the subject of pity or scorn".
Plaintiff claims defendant came into his lane;
defendant says he did not. This presents a question of
fact for the jury.
The fact that plaintiff was reprimanded for his
driving in disciplinary proceedings suggests negligence on
his part, but, there remains a question as to whether
defendant was also negligent.
TIMELINESS OF THE NOTE OF ISSUE
Plaintiff filed his Note of Issue within 95 days after
mailing of Defendant's Demand. It was timely filed. CPLR
2103(B)(2) provides that 5 days should be added if service
is made by mail.
Even if the 5 day mailing time should not be added,
the Court has the power under CPLR 2004 to extend the time.
AMENDMENT OF THE COMPLAINT
Leave to amend a pleading to add a General Municipal
Law Section 205-e cause of action should be freely given.
CONSTANTI V. BENEDETTO, 190 AD2d 888, 593 NYS2d 117.
However, the case law holds that plaintiff's complaint must
specify the specific statutes. BROPHY V. GENEROSO, 137
This is especially necessary here because Plaintiff's
early contention was that Defendant "appeared" to
be coming into Plaintiff's lane.
Leave to amend is denied, without prejudice.
Plaintiff is directed to file a list of papers submitted to
the Court by both parties on this motion.
This signing, filing, and mailing of a copy by the
Court of this Decision and Order to all Counsel shall not
constitute notice of entry required by CPLR 2220. Counsel
are not relieved from the applicable provisions of that
section respecting notice of entry.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO
FURTHER ORDER SHALL BE NECESSARY.
Dated: February , 1996
Mayville, New York
Supreme Court Justice
THOMAS J. CANNAVO, ESQ.
Attorney for Plaintiffs
J. MARK GRUBER, ESQ.
Attorney for Defendant
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, was duly granted in the above
entitled action on the day of , 1996, and
filed by the Court in the office of the Clerk of the County
of Chautauqua on the same date.