STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

JOSEPH M. ARNET and

DAWN ARNET

Plaintiffs,

vs Index #H-07724

DENNIS R. NELSON;

and the TOWN OF

POLAND

Defendants.

_____________________________________________

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

February, 1996

GERACE, J.

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

injury.

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

disfigurement).

The jury must decide whether a reasonable person would

view the injury as "unattractive, objectionable or * * *

the subject of pity or scorn".

NEGLIGENCE QUESTION

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

AD2D 478.

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

_________________________________

JOSEPH GERACE

Supreme Court Justice

THOMAS J. CANNAVO, ESQ.

Attorney for Plaintiffs

J. MARK GRUBER, ESQ.

Attorney for Defendant

Nelson

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.