Brofsky v. City of New York

In an action to recover damages for personal injuries, the defendants Da’Jarm Construction Company, Inc., and B. G. National Plumbing & Heating Corp. separately appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated October 6, 1989, which denied their respective motions to dismiss the complaint insofar as asserted against them. Ordered that the order is affirmed, with one bill of costs. The appellants moved to dismiss the complaint on the ground that the plaintiffs common-law negligence action was barred by the so-called "fireman’s rule” (see, Santangelo v State of New York, 71 NY2d 393). The plaintiff, a New York City police officer, was allegedly injured when he stepped into a pothole on a public street. We find that the appellants’ motions were properly denied as the traffic condition which necessitated the officer’s services at that location was sufficiently separate and apart from the alleged negligent acts which caused his injuries (see, Murphy v Creative Foods Corp., 170 AD2d 441; Janeczko v Duhl, 166 AD2d 257; Starkey v Trancamp Contr. Corp., 152 AD2d 358; Burnside v City of New York, 144 Misc 2d 183). Thompson, J. P., Brown, Miller and O’Brien, JJ., concur.