Decolator, Cohen & DiPrisco - Authors of The Police Officers Right to Sue Newsletter

In Ferriolo v. City of New York, the Appellate Division, First Department overturned a lower Court ruling which had dismissed a lawsuit brought by a Manhattan South Police Officer against the City of New York after he was shot by a fellow Officer in a station house locker room. Police Officer Vincenzo Ferriolo was in the locker room getting ready for his midnight tour of duty when another Police Officer fired his weapon striking Officer Ferriolo shattering his left femur. Officer Ferriolo was forced to retire on a ¾ line-of-duty disability pension as a result of the injury. DCD sued the City of New York (note: It is not necessary to name an individual Police Officer as a defendant in a civil lawsuit if this Officer was working within the scope of his/her employment at the time of the accident.) claiming the Officer’s actions in shooting Officer Ferriolo was negligent and not barred by the “Firefighter’s Rule” Since the shooting occurred in the station house locker room, DCD reasoned that the locker room is not “inherently dangerous”, and Officer Ferriolo was not “engaged in any specific duty that increased the risk that he would be shot.” The City argued they were insulated from civil liability by the Firefighter’s Rule which raises the standard for Police Officers from suing for injuries sustained in the line-of-duty accidents. New York County Justice Eileen Rakower ruled against Officer Ferriolo and dismissed the lawsuit citing the Firefighter’s Rule. Justice Rakower stated the act of changing in a station house locker room is an ‘inherently dangerous activity’ which heightens the risk of getting shot because firearms are present. The Appellate Division disagreed and adopted the arguments made by Mr. Decolator, concluding that the act of changing in a locker room is not inherently dangerous and a lawsuit should not be barred by the Firefighter’s Rule. The Court concluded by stating Officer Ferriolo will be permitted to sue under a common-law negligence cause of action. The matter is pending in New York County Supreme Court.

In Cerati v. Berrios, the Appellate Division, Second Department upheld a lower Court decision which allowed a New York City Police Officer to sue an intoxicated driver even though the driver did not “directly” cause the Officer’s injuries. Police Officer Maureen Cerati, 106^th Precinct, responded to a one car accident on the Belt Parkway. The driver of the vehicle was intoxicated and killed his passenger when he lost control of his vehicle causing the vehicle to overturn. Officer Cerati proceeded to safeguard the accident scene before Accident Investigation arrived by placing flares at the scene. Another driver drove past the warnings and struck Officer Cerati causing serious injuries which necessitated her being awarded a ¾ line-of-duty disability pension. Officer Cerati sued the driver who struck her and recovered the limits of his insurance policy. DCD did not take a fee in this recovery. Decolator, Cohen & DiPrisco, LLP also sued the driver which caused her to be at the scene, the intoxicated driver. General Municipal Law §205-e, the Police Officer’s Right to Sue Statute, permits an injured Officer to sue a third party if the person’s underlying conduct was unlawful and the unlawful conduct directly or indirectly caused the Officer’s injuries. The Appellate Division stressed that if there is a “reasonable or practicable” connection between the unlawful conduct and the injury, the Officer is permitted to sue. Despite a protracted legal battle, the insurance company representing the drunk driver, relented at jury selection and settled the case for the full limits of the insurance policy.

The importance of Cerati’s law cannot be overlooked. This case effectively

expands a Police Officer’s right to sue in line-of-duty accident

cases. If an Officer is injured while responding to a job

where there is underlying unlawful conduct, the Officer may be

able to sue the individual or corporation committing the underlying

unlawful conduct if there is a reasonable or practicable connection

between the Officer’s injuries and the unlawful conduct, even if that

individual or corporation did not directly cause the Officer’s injury.

In another case involving the Cerati law, DCD was able to persuade a Kings County Supreme Court Justice to allow a case to proceed to trial after a Brooklyn North Police Officer was injured when she was struck by a car while issuing a no seat belt summons to another motorist. In Reynolds v. Pena, Officer Reynolds conducted a car stop and was in the process of issuing a summons to motorist Andre Ray when another motorist, Violeta Pena, struck her vehicle injuring Officer Reynolds. Officer Reynolds sued Violeta Pena and also sued Andre Ray, the individual who caused Officer Reynolds to stop her vehicle. The insurance company representing Andre Ray filed an application in Kings County Supreme Court requesting that the action against Mr. Ray be dismissed in that their client never struck Officer Reynolds and her injuries clearly were not the proximate cause of Mr. Ray’s failure to wear his seatbelt. The attorneys for the insurance company failed to address the GML §205-e argument posed by DCD that proximate cause was not necessary to prove in a police line-of-duty accident case. Justice Laura Jacobson, citing the Cerati law, ruled in Officer Reynolds’ favor and stated that proximate cause is not an element of GML §205-e and that Officer Reynolds only needs to show “a reasonable or practical” connection between the violation and the injury.