Collins v. A & R Pizzeria

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Leone, J.), dated July 15, 1994, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff slipped on the floor of the defendant’s premises. This accident occurred while the plaintiff, a police officer, was pursuing a suspect. The evidence in the record establishes conclusively that the plaintiff’s common law cause of action is barred by the so-called "firefighter’s rule” (see, Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 438-440; see also, Ruocco v New York City Tr. Auth., 85 NY2d 423). Under the particular circumstances of this case, the dismissal of the complaint may be affirmed on the basis of the "firefighter’s rule” even though this rule was not asserted as the basis for the defendant’s motion (see, O'Connor v Grady, 143 AD2d 738). Further, the possible existence of a valid statutory cause of action (see, General Municipal Law § 205-e) does not impede the dismissal of the complaint at this point, because no such statutory cause of action has been pleaded (see, Hoey v Kuchler, 208 AD2d 805). Bracken, J. P., Miller, Altman and Florio, JJ., concur.