Berotte v. Hiram

In an action to recover damages for personal injury, the defendants appeal from an order of the Supreme Court, Nassau County (Robbins, J.), dated November 16, 1989, which granted the plaintiffs motion to strike their second affirmative defense. Ordered that the order is affirmed, with costs. Although the plaintiff, a Nassau County police officer, was on duty at the time his vehicle was involved in a collision with that of the defendants, we find that his services were "sufficiently separate and apart from the negligent acts which caused his injuries” (Boglioli v Fletcher, 170 AD2d 425, 426) to permit him to maintain this action sounding, inter alia, in common-law negligence. Thus, the action is not barred by operation of the "fireman’s rule”, enunciated in Santangelo v State of New York (71 NY2d 393, 397-398), and the second affirmative defense, which relies upon the Santangelo doctrine, was properly stricken. No other issue has been raised or considered. Mangano, P. J., Brown, Sullivan, Harwood and Miller, JJ., concur.