150 Misc. 2d 375 | N.Y. App. Term. | 1990
OPINION OF THE COURT
Memorandum.
Order affirmed without costs.
The attorney for the Harringtons asserts that Brown’s claims are barred by the “fireman’s rule” applicable to police officers injured in the line of duty under Santangelo v State of New York (71 NY2d 393).
The court below denied summary judgment on the ground that General Municipal Law § 205-e is retroactive.
In our opinion the order denying the Harrington defendants’ motion for summary judgment should be affirmed. The negligence that caused plaintiffs injuries was separate and apart from the wrongful conduct that created the occasion for his services. The wrong that created the occasion for his services was that of the speeding violator that Officer Brown was pursuing. The negligence that caused the plaintiffs injuries, however, was that of defendant Rosalia Harrington who allegedly made a left turn while arguing with her passenger and looking the wrong way. As a result she collided with the speeding violator causing Officer Brown to veer away and hit a telephone pole. It cannot be said that the officer assumed the risk created by that negligence (Dawes v Ballard, 133 AD2d 662; Starkey v Trancamp Contr. Corp., 152 AD2d 358; Tanico v Carr, NYLJ, July 13, 1989, at 20, col 5).
Kassoff, P. J., Williams and Santucci, JJ., concur.