author: Titone, J.

text:
    [618 NE2d 119, 601 NYS2d 86]
    Mark Rockefeller et al., Respondents, v George P. Moront et al., Appellants.
    Argued June 2, 1993;
    decided July 6, 1993

      POINTS OF COUNSEL

      Carter, Conboy, Bardwell, Case, Blackmore & Napierski, Albany (James A. Resila of counsel), for George P. Moront, appellant.
    The Court below improperly affirmed the denial of motions to dismiss the complaint, since under the circumstances of this case, plaintiff is time-barred from bringing the instant action. (Vinciguerra v Jameson, 153 AD2d 452; Rodriguez v Manhattan Med. Group, 77 NY2d 217; Sternberg v Gardstein, 120 AD2d 93; Darragh v County of Nassau, 91 Misc 2d 53, 63 AD2d 1010; Mayotte v Bauer, 130 Misc 2d 946; Taddeucci v Weitzner, 130 Misc 2d 853; Lombardi v DeLuca, 71 NY2d 838; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Dobbins v Clifford, 39 AD2d 1.)

      Maynard, O’Connor & Smith, Albany (Arete K. Sprio and Christine Kirwin Krackeler of counsel), for Columbia Memorial Hospital, appellant.
    The Court below improperly affirmed the denial of motions to dismiss the complaint since, under the circumstances of this case, plaintiff is time-barred from bringing the instant action. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Rodriguez v Manhattan Med. Group, 77 NY2d 217; Lampiasi v St. Vincent’s Hosp. & Med. Ctr., 71 AD2d 203, 51 NY2d 913; Brunotte v Hans, 67 AD2d 829; Matter of Robinson v State of New York, 99 Misc 2d 336; Robusto v Johnson, 87 Misc 2d 76; Lewis v Wascomat, Inc., 125 AD2d 194; Matter of Beary v City of Rye, 44 NY2d 398; Szajna v Rand, 75 AD2d 617.)

      Powers & Santola, Albany (Michael J. Hutter of counsel), for respondents.
    The suture placed around a body organ during the course of a surgical procedure on another body organ, the suturing of which is not normally involved in that surgical procedure, is a "foreign object” within the confines of the foreign object rule as set forth in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427) and CPLR 214-a. Thus, defendants’ motion to dismiss the complaint as time-barred was properly denied. (Rodriguez v Manhattan Med. Group, 77 NY2d 217; Goldsmith v Howmedica, Inc., 67 NY2d 120; Matter of Beary v City of Rye, 44 NY2d 398; Mitchell v Ahitol, 130 AD2d 633; Darragh v County of Nassau, 91 Misc 2d 53, 63 AD2d 1010; Vinciguerra v Jameson, 153 AD2d 452; Provenzano v Becall, 138 AD2d 585; Garrett v Brooklyn Hosp., 99 AD2d 541; Matter of Soto v Greenpoint Hosp., 76 AD2d 928.)
   OPINION OF THE COURT

Titone, J.

In this medical malpractice action, we are called upon to determine whether a suture that was improperly affixed to an organ not involved in the operation for which plaintiff sought medical treatment constitutes a "foreign object” sufficient to delay accrual of the governing Statute of Limitations until the date that the object’s presence was or reasonably should have been discovered. Because the misplaced suture is not a "foreign object” within the rule of Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427), and is more readily characterized as a "fixation device” excluded from the benefit of that rule, we conclude that the Appellate Division erred in denying defendants’ respective motions to dismiss the complaint as time-barred.

In June 1971, defendant George Moront, a licensed physician, performed left hernia repair surgery at defendant Columbia Memorial Hospital on plaintiff Mark Rockefeller, who was then four years old. Seventeen years later, when plaintiff’s wife was unable to conceive, plaintiff underwent a medical examination which revealed that his semen contained no sperm. Exploratory surgery performed on plaintiff in November 1989 revealed that a suture had been permanently placed on his vas deferens, most likely during the 1971 herniorrhaphy.

Plaintiff instituted this medical malpractice action against defendants Moront and Columbia Memorial in October 1990, seeking damages for his irreversible sterility and emotional distress, as well as derivative damages on his wife’s behalf. Supreme Court denied defendants’ respective motions to dismiss on Statute of Limitations grounds and granted plaintiff’s cross motion to dismiss those affirmative defenses, holding, inter alia, that the action was timely because it was commenced within three years of the discovery of the misplaced suture, a "foreign object.” The Appellate Division modified, by holding that the dismissal of the Statute of Limitations defense under the "foreign object” exception was without prejudice to its reassertion if, following discovery, defendants demonstrate that there is a triable issue concerning whether plaintiffs could have reasonably discovered the malpractice "at a point in time more than three years prior to the commencement of this action.” (182 AD2d 160, 164.) The dissent voted to dismiss plaintiff’s complaint as time-barred on the ground that the "foreign object” rule is inapplicable where an object "is deliberately, albeit negligently, placed in the patient” (id., at 165). For the following reasons, we now reverse.

The limitations period for medical malpractice actions generally runs from the date of the last act constituting the basis of the claim, and not from the date of discovery of the resulting injury (Rodriguez v Manhattan Med. Group, 77 NY2d 217, 220). The "foreign object” rule, first enunciated by this Court in Flanagan (24 NY2d 427, supra), provides an exception to that general principle, where an object not intended to remain is negligently "left in a patient’s body” after the completion of a medical procedure (id., at 430 [emphasis added]). In such instances, the applicable limitations period will not commence to run "until the patient could have reasonably discovered the malpractice” (id., at 431). We stated in Flanagan that, unlike in cases where the plaintiff’s malpractice claim is predicated on negligent "medical treatment” or practice (id., at 431), application of a discovery rule is justified in foreign object cases because the presence of the foreign object — in that case, surgical clamps forgotten in the plaintiff’s body after surgery — did not create a danger of false or belated claims, did not "raise questions as to credibility,” and did not "rest on professional diagnostic judgment or discretion” (id., at 431). The principles enunciated in Flana gan, which have since been codified (see, CPLR 214-a), make clear that claims founded on negligent medical diagnosis or treatment should not be considered within the category of claims covered by the "foreign object” rule because they involve the evaluation of treatment decisions made by medical professionals.

In determining whether an object which remains in the patient constitutes a "foreign object,” the courts should consider the nature of the materials implanted in a patient, as well as their intended function. Objects such as surgical clamps, scalpels, and sponges are introduced into the patient’s body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure’s completion. Clearly, when such objects are left behind, no assessment of the medical professional’s expert judgment or discretion in failing to remove them is necessary to establish negligence. By contrast, items which are placed in the patient with the intention that they will remain to serve some continuing treatment purpose constitute "fixation devices” (Lombardi v DeLuca, 71 NY2d 838, affg 130 AD2d 632), a category of medical material that the pre-CPLR 214-a case law excludes from the "foreign object” rule, and is now explicitly excluded by the terms of that statute. That "fixation devices” were considered exempt from coverage under the judicially created "foreign object” rule prior to enactment of CPLR 214-a is confirmed by this Court’s holding in Lombardi (supra) that "[a] fixation device, in this case, suture material, intentionally placed in the body and not left there in the course of some later procedure in which it should have been removed, does not constitute a 'foreign object’, even though the claim arose prior to July 1, 1975, the effective date of CPLR 214-a” (130 AD2d 632, affd on mem below 71 NY2d 838, supra; accord, Goldsmith v Howmedica, Inc., 67 NY2d 120, 123; Mitchell v Abitol, 130 AD2d 633).

We have previously rejected an argument that the negligent failure to remove a "fixation device” from a patient’s body transforms that material into a "foreign object” (see, Rodriguez v Manhattan Med. Group, supra, at 222). In so doing, we reasoned that while the "foreign object” rule applies where the negligent act of forgetting a device in the patient’s body forms the basis of the complaint, it should not be extended to cover the "very different circumstances” presented by the "failure to detect the continued presence of a previously inserted device,” a form of negligence analogous to misdiagnosis (id., at 223). By parity of reasoning, a claim based on a medical professional’s deliberate implantation of a "fixation device” in the wrong place does not transform it into a foreign object. Such a claim is more readily characterized as one predicated on negligent medical treatment, which, like misdiagnosis, is a category of malpractice not covered by the "foreign object” rule (see, Merced v New York City Health & Hosps. Corp., 44 NY2d 398).

To find negligence where an object classifiable as a "fixation device” has been deliberately implanted in the patient’s body with the intent that it remain, thé trier of fact must assess "whether the defendant physician’s diagnostic methods and conclusions were consistent with contemporary professional standards of care” (Rodriguez v Manhattan Med. Group, 77 NY2d 217, 223, supra). Thus, establishing negligence in cases founded on faulty installation of a "fixation device” is clearly more difficult than where an object intended to be removed from the patient’s body at the completion of the operation is obviously forgotten there. Additionally, the presence of a clear chain of causation in cases where an object is negligently left in the patient provides a major justification for the "foreign object” exception’s discovery rule (Flanagan, 24 NY2d, at 430431, supra; see also, Mitchell v Abitol, 130 AD2d 633, 634). That justification is less persuasive in malpractice cases based on negligent installation of a "fixation device.” Accordingly, a claim of negligence based solely upon the ground that a "fixation device” was improperly installed or affixed during performance of an operation does not fall within the rationale of the "foreign object” exception (see, Mitchell v Abitol, supra, at 634).

Applying the aforementioned principles, we conclude that the suture deliberately and permanently implanted during plaintiffs hernia operation does not constitute a "foreign object” within the meaning of the our decision in Flanagan simply because it was improperly placed on plaintiff’s vas deferens, an organ not normally associated with the particular herniorrhaphy procedure. Sutures have been consistently characterized in decisional law as "fixation devices” because they are deliberately introduced into the body and intended to perform the continuing function of securing the surgical closure (see, e.g., Lombardi v DeLuca, 71 NY2d 838, affg 130 AD2d 632, supra; Cooper v Edinbergh, 75 AD2d 757). Moreover, plaintiff’s claim is more accurately characterized as a challenge to defendant Moront’s medical judgment and treatment — i.e., his placement of the suture — and not as one predicated on defendant’s failure to remove medical material that should have been extracted at the close of the operation. In fact, if plaintiff were permitted to proceed with this action, defendants would be called upon to justify Dr. Moront’s professional judgment and the practices he employed in providing plaintiff with medical treatment — a task which would be rendered extremely difficult due to the significant lapse in time and the attendant loss of evidence and witnesses likely to coincide with the delay (see, Flanagan, 24 NY2d, at 429, supra). Manifestly, our prior decisions do not support the imposition of that burden.

We are not unmindful of the harsh consequences of this ruling to plaintiff, who first discovered the misplaced suture that caused his sterility only after undergoing exploratory surgery performed 18 years after the injury-producing herniorrhaphy. However, our holding is consistent with this Court’s prior cautionary directive that the "foreign object” exception must not be broadened beyond the narrow confines announced in Flanagan (see, Rodriguez, supra, at 221-222, 224; Goldsmith v Howmedica, Inc., 67 NY2d 120, 123, supra; Matter of Beary v City of Rye, 44 NY2d 398, 415). Accordingly, only in circumstances where a foreign object is negligently "left” in the patient’s body without any intended continuing treatment purpose will the discovery rule be available to delay the running of the Statute of Limitations.

Because plaintiff cannot benefit from the "foreign object” exception’s date of discovery rule, and this suit was not commenced within three years of plaintiff’s eighteenth birthday — the date the infancy toll was removed — this medical malpractice action is time-barred.

Accordingly, the Appellate Division order should be reversed, with costs, the defendants’ motions to dismiss the complaint granted and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Simons, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, etc.

      . The derivative claims of plaintiffs wife are not before this Court.

      . Since the alleged act of malpractice occurred in 1971, plaintiff’s action is not governed by CPLR 214-a, which establishes a 2ti-year Statute of Limitations for medical malpractice occurring on or after July 1, 1975. Rather, the timeliness of plaintiff’s suit is governed by the three-year limitations period for medical malpractice actions set forth in CPLR 214 (6) and the decisional law interpreting the foreign object rule as enunciated in Flanagan v Mount Eden Gen. Hosp. (supra). Further, because plaintiff was an infant at the time that the alleged malpractice occurred, the accrual of this cause of action was tolled until February 25, 1985 — plaintiff’s eighteenth birthday (see, CPLR 105 [j]) — under the infancy toll of CPLR 208. Accordingly, because plaintiff’s action was commenced in October 1990, it is barred by the applicable three-year Statute of Limitations unless plaintiff can establish that the suture constituted a foreign object. If the foreign object rule applies, this action, commenced within one year of its discovery in 1989, would be timely.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [618 NE2d 123, 601 NYS2d 90]
    In the Matter of Rudolph L. Mazzei, a Judge of the Suffolk County Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued June 1, 1993;
    decided July 6, 1993

      POINTS OF COUNSEL

      Giaimo & Vreeburg, P. C., Kew Gardens (Joseph O. Giaimo of counsel), for petitioner.
    I. Petitioner’s conduct was not egregious conduct warranting removal. (Matter of LaBelle, 79 NY2d 350; Matter of Kiley, 74 NY2d 364; Matter of Reeves, 63 NY2d 105; Matter of Agresta, 64 NY2d 327; Matter of Kuehnel, 49 NY2d 465; Matter of Shilling, 51 NY2d 397; Matter of Cunningham, 57 NY2d 270; Matter of Lonschein, 50 NY2d 569; Matter of Edwards, 67 NY2d 153.) II. The Commission has no authority to discipline attorneys under the Code of Professional Responsibility.

      Gerald Stem, New York City, and Jean M. Savanyu for respondent.
    I. Petitioner engaged in gross misconduct characterized by dishonesty and deception. (Matter of Myers, 67 NY2d 550; Matter of Steinberg, 51 NY2d 74; Matter of Murphy, 38 AD2d 254; Matter of Brickel, 63 AD2d 448; Matter of Kuehnel, 49 NY2d 465; Matter of Levine, 74 NY2d 294; Matter of Boulanger, 61 NY2d 89; Matter of Gelfand, 70 NY2d 211; Matter of Waltemade, 37 NY2d [a].) II. The Commission properly charged and determined that petitioner’s conduct violated a provision of the Code of Professional Responsibility. (Matter of Intemann, 73 NY2d 580; Matter of Steinberg, 51 NY2d 74; Matter of Quinn, 54 NY2d 386; Matter of Cooley, 53 NY2d 64; Matter of Harris, 56 NY2d 365; Matter of Reeves, 63 NY2d 105; Matter of LaBelle, 79 NY2d 350; Matter of Cohen, 74 NY2d 272.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a former Judge of County Court, Suffolk County, initiated this proceeding to review a determination of the State Commission on Judicial Conduct that he should be removed from office (see, Judiciary Law §44 [7]). Although conceding that he engaged in sanctionable misconduct, peti; tioner contends that removal is unwarranted and that censure is more appropriate. Petitioner also argues that the Commission improperly charged a violation of the lawyer’s Code of Professional Responsibility. While petitioner is correct that he should not have been formally charged under the Code of Professional Responsibility, in the exercise of our de novo review powers we disregard that technical defect and accept the determined sanction.

Petitioner’s mother, Carmela Mazzei, lived in petitioner’s home for several years until her death in April 1989. Around that time, petitioner received at his home a "pre-approved” application for a Chemical Bank Visa Gold card, with a $5,000 credit limit, addressed to Mrs. Mazzei. After Mrs. Mazzei died, petitioner completed the application in his mother’s name, simulated her signature, and requested an "authorized user’s” card for her son. Chemical received the application after expiration of the offer, and no credit card was issued at that time.

Later in 1989 Chemical sent to Carmela Mazzei a second preapproved Visa credit card application. Petitioner again filled out the form, forged his deceased mother’s signature, and requested an authorized user’s card for himself. As completed by petitioner, this application, like the previous one, contained a number of additional misstatements: (i) Mrs. Mazzei’s year of birth was listed as 1909 when in fact she would have been 10 years older; (ii) the stated income included Social Security payments when in fact they had terminated; (iii) Mrs. Mazzei’s employment was listed as "Retired” when in fact she was dead.

On December 4, Chemical opened a Visa credit card account in Mrs. Mazzei’s name and issued two cards: one for her, and another, bearing petitioner’s name, as an authorized user of the account. Petitioner placed his mother’s card in a desk drawer and signed the back of his own card.

Petitioner first used his card a week later at an Atlantic City casino, obtaining $2,000 from a cash machine. Petitioner’s attempts to obtain another $2,000 that evening were thwarted when Chemical’s computer, and then a supervisor in the bank’s fraud prevention department, froze the account pending verification of the user.

Petitioner called the bank on several occasions to inquire about the account, stating that Mrs. Mazzei wanted to use her card, but that she should not be contacted, to avoid upsetting her. Chemical’s investigation revealed that Mrs. Mazzei’s Social Security number had been used in connection with a claim for death benefits, and when confronted with that fact, petitioner suggested that his mother mistakenly supplied his deceased father’s Social Security number. Petitioner later admitted that his mother had died, and returned her unsigned card with full payment of the account’s outstanding balance.

The Commission on Judicial Conduct served a written complaint upon petitioner containing a single charge of misconduct. The complaint cited violations of 22 NYCRR 100.1 (Judges must observe high standards of conduct to preserve integrity and independence of judiciary); 22 NYCRR 100.2 (a) (Judges shall respect and comply with law and conduct themselves at all times in a manner that promotes public confidence in integrity and impartiality of judiciary); the similarly-worded counterparts in the Code of Judicial Conduct (Canons 1, 2 [a]); and DR 1-102 (A) (4) of the Code of Professional Responsibility (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

At the hearing on the complaint (see, Judiciary Law § 44 [4]), petitioner’s defense focused on his motivation for obtaining the credit cards. According to petitioner’s evidence and argument, in 1989 he was estranged from his wife due in part to disputes over financial matters. Knowing that his wife would not open mail addressed to Carmela Mazzei, petitioner sought the account to hide his spending from his wife. In essence, he intended to deceive his wife, not Chemical.

The Referee issued a report sustaining the charge, and the parties cross-moved before the Commission to confirm the report, differing only as to the appropriate sanction. The Commission, by an 8 to 1 vote, determined that removal was warranted. The dissenting member argued for censure, noting that petitioner’s misconduct was removed from his judicial duties and that petitioner’s motive — to obtain a credit card without his spouse’s knowledge — is not as serious as an attempt to defraud the bank of funds. Petitioner sought review in this Court, and we accept the determined sanction.

Judges personify the justice system upon which the public relies to resolve all manner of controversy, civil and criminal. A society that empowers Judges to decide the fate of human beings and the disposition of property has the right to insist upon the highest level of judicial honesty and integrity. A Judge’s conduct that departs from this high standard erodes the public confidence in our justice system so vital to its effective functioning.

We have often said that removal, the ultimate sanction, should not be imposed for misconduct that amounts simply to poor judgment or even extremely poor judgment, but should be reserved for truly egregious circumstances (see, e.g., Matter of Kiley, 74 NY2d 364, 369-370; Matter of Cunningham, 57 NY2d 270, 275; Matter of Shilling, 51 NY2d 397, 403). Judges, however, are held to higher standards of conduct than the public at large (Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279, 283; see, Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462, 468-469) and thus what might be acceptable behavior when measured against societal norms could constitute "truly egregious” conduct in the present context. Such fine distinctions are unnecessary here, however, because under any standard, petitioner’s conduct compels a sanction of removal.

Falsification of documents is inimical to the character required of a Judge (see, Matter of Reeves, 63 NY2d 105, 110). Here, petitioner completed and submitted two fraudulent credit card applications, deceiving the bank into believing that the applicant was Carmela Mazzei, and that she was alive (compare, Matter of Bailey, 67 NY2d 61, 62-63, supra). Petitioner aggravated that misconduct by actually using the fraudulently-obtained card to procure $2,000, and making further misrepresentations to bank personnel investigating the case (see, Matter of Levine, 74 NY2d 294, 297).

That petitioner’s conduct was not directly related to his judicial office is immaterial in these circumstances (see, 22 NYCRR 100.2 [a] ["A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”; emphasis added]; Matter of Bailey, 67 NY2d, at 62-63 [false statements to obtain hunting license]). Nor does petitioner’s alleged motivation of deceiving his wife — not the bank — mitigate the objective conduct.

Petitioner also contends that the complaint erroneously charged a violation of DR 1-102 (A) (4) of the lawyer’s Code of Professional Responsibility. We agree that it is improper for the Commission, which has no power to discipline attorneys, to formally charge a violation of the Code (compare, Matter of Lenney, 71 NY2d 456, 459). While of course a Judge admitted to the Bar "shall not * * * [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation” (DR 1-102 [A] [4]), the proscription against such conduct is perforce included in the more generally-worded judicial code of conduct (see, 22 NYCRR 100.1, 100.2 [a]). The potential prejudice in formally charging violations of the lawyer’s ethical code in judicial disciplinary proceedings is that determinations by the Commission (or this Court on review) might erroneously be perceived as binding in subsequent proceedings to discipline the Judge as a lawyer. Inasmuch as we have de novo review power in this proceeding, however, it is unnecessary to remit to the Commission to correct the technical error (see, Matter of Gelfand, 70 NY2d 211, 216-217). It is undisputed that petitioner violated the Code of Judicial Conduct, and we conclude that removal is the appropriate sanction.

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., and Smith concur in Per Curiam opinion; Judge Bellacosa taking no part.

Determined sanction accepted, without costs, and Rudolph L. Mazzei is deemed removed from the office of Judge of the County Court, Suffolk County.

      . Although petitioner’s term expired December 31,1992, this proceeding is not moot because a sanction of removal would render him ineligible for future judicial office (NY Const, art VI, § 22 [h]; see, Matter of Bailey, 67 NY2d 61, 63, n; Matter of Scacchetti v State Commn. on Judicial Conduct, 56 NY2d 980, 982).

      . The charge stated: "On two occasions in 1989, respondent fraudulently signed his deceased mother’s name to a pre-approved application for credit cards sent by Chemical Bank to her, thereby obtaining an authorized user’s second card in his name, used such card to obtain a cash advance, attempted to use it a second time to obtain a cash advance, and, thereafter, gave false and misleading information to bank representatives who were inquiring into use of the credit card.”


author: Chief Judge Kaye.

text:
    [618 NE2d 127, 601 NYS2d 94]
    Greater Poughkeepsie Library District et al., Respondents, v Town of Poughkeepsie, Appellant.
    Argued June 3, 1993;
    decided July 8, 1993

      POINTS OF COUNSEL

      Corbally, Gartland & Rappleyea, Poughkeepsie (Jon Holden Adams of counsel), and Robert Cohen, Ballston Lake, for appellant.
    I. The Legislature cannot delegate the power to tax to a nonelective body. (Gautier v Ditmar, 204 NY 20; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; Matter of Ames Volkswagen v State Tax Commn., 47 NY2d 345; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; McCulloch v Maryland, 4 Wheat [17 US] 316; Yonkers Racing Corp. v State of New York, 131 AD2d 565.) II. The Town was entitled to Home Rule protection. (Adler v Deegan, 251 NY 467; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358; Matter of Osborn v Cohen, 272 NY 55; Matter of Kelley v McGee, 57 NY2d 522; Kamhi v Town of Yorktown, 74 NY2d 423.) III. Chapter 524 of the Laws of 1987 violates article XVI, § 2 of the New York Constitution. (Foss v City of Rochester, 65 NY2d 247; Matter of Town of Lewiston v State Bd. of Equalization & Assessment, 3 AD2d 498, 5 NY2d 741.)

      Thomas P. Halley, Poughkeepsie, for Greater Poughkeepsie Library District, respondent.
    I. The Legislature has not made an improper delegation of its powers. (Genet v City of Brooklyn, 99 NY 296; Gautier v Ditmar, 204 NY 20; People ex rel. Hudson Riv. Day Line v Franck, 257 NY 69; Gaynor v Marohn, 268 NY 417; Lang v Cohalan, 127 AD2d 17.) II. Home Rule protections do not apply to this statute. (Kessel v Purcell, 119 Misc 2d 449; Gautier v Ditmar, 204 NY 20; Genet v City of Brooklyn, 99 NY 296; Whittaker v Village of Franklinville, 265 NY 11; Matter of County of Cayuga v McHugh, 4 NY2d 609; Montgomery v Daniels, 38 NY2d 41; Matter of Malpica-Orsini, 36 NY2d 568; I. L. F. Y. Co. v Temporary State Hous. Rent Commn., 10 NY2d 263.) III. The statute does not violate article XVI, §2 of the New York Constitution, nor does it deny equal protection. (Shapiro v City of New York, 32 NY2d 96; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529.) IV. Appellant has no standing to challenge the constitutionality of a State legislative enactment. (Black Riv. Regulating Dist. v Adirondacks League Club, 307 NY 475; County of Albany v Hooker, 204 NY 1; Board of Educ. v Allen, 27 AD2d 69, 20 NY2d 109, 392 US 236; Matter of City of New York v Christiansen, 58 NY2d 884; Matter of Town of Moreau v County of Saratoga, 142 AD2d 864.)

      Richard, I. Cantor, Corporation Counsel, for City of Poughkeepsie, respondent.
    I. Appellant’s defenses are time-barred. (Solnick v Whalen, 49 NY2d 224; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallshurg, 78 NY2d 194; SJL Realty Corp. v City of Poughkeepsie, 133 AD2d 682; Press v County of Monroe, 50 NY2d 695.) II. Appellant Town is not protected by due process or equal protection claims. III. Libraries are a matter of State concern. (Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358; Buffalo & Erie County Pub. Lib. v County of Erie, 171 AD2d 369, 79 NY2d 754; Matter of Town of Islip v Cuomo, 64 NY2d 50; Adler v Deegan, 251 NY 467; Town of N. Hempstead v Incorporated Vil. of Westbury, 182 AD2d 272.) IV. The Greater Poughkeepsie Library District is not a corporation with both the power of taxation and indebtedness. (Salzman v Impellitteri, 203 Misc 486.) V. The legislative delegation of power to the Greater Poughkeepsie Library District is valid. (Matter of Levine v Whalen, 39 NY2d 520; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Matter of Turf House v Hammond, 83 AD2d 367.) VI. The apportionment formula does not violate equal protection standards. (Maresca v Cuomo, 64 NY2d 242; Matter of Rosenstock v Scaringe, 40 NY2d 563; Alevy v Downstate Med. Ctr., 39 NY2d 326; Town of N. Hempstead v Incorporated Vil. of Westbury, 182 AD2d 272.) VII. Chapter 524 of the Laws of 1987 does not violate article XVI, § 2 of the New York State Constitution. (Foss v City of Rochester, 65 NY2d 247.)
   OPINION OF THE COURT

Chief Judge Kaye.

Under a statute creating the Greater Poughkeepsie Library District (L 1987, ch 524), the City of Poughkeepsie and the Town of Poughkeepsie must levy a tax to fund the Library District in an amount fixed by the trustees of the Library District. The Town of Poughkeepsie contends that the statute violates the State Constitution because it delegates the power to tax in violation of articles III, IX and XVI; fails to contain a Home Rule message as required by article IX, § 2 (b) (2); and fails to require equalized values among the two assessing units that make up the Library District (see, art XVI, §2). Both Supreme Court and the Appellate Division held the statute constitutional. We disagree, concluding that the statute improperly delegates the power to tax.

The Statute

Established by special act as a joint endeavor of the Town of Poughkeepsie and the City of Poughkeepsie, the Library District has all the powers and duties of public libraries set forth in the Education Law, and additionally has authority to fix the amount of tax revenue to be raised and appropriated by the Town to fund the library. The Library District is governed by a board of 11 trustees, 7 appointed by the Town Supervisor, 4 by the City Mayor. The trustees set the budget, as well as the sources for funding the budget, which include appropriations from the City and Town (L 1987, ch 524, § 3).

A complicated formula determines the amounts to be appropriated from the City and Town. The trustees begin by dividing their budget into two portions — an amount to be funded by real property taxes in the City and Town, and an amount to be funded by other sources. Initially, the amount that the trustees determine should be funded by City and Town taxes is divided between the City and Town in proportion to the assessed valuation of property in the Library District. If 75% of the District’s assessed valuation is within the Town, for example, the Town will be responsible for 75% of the library budget allocated to the City and Town, with the City responsible for 25%. This is the "apportionment formula.”

Once the City’s allocated amount exceeds $300,000, for that year and thereafter the City and Town are responsible for appropriating the amount of the budget allocated by the trustees according to the apportionment formula (L 1987, ch 524, §§ 3-4). Thus, continuing the example, the Town would have to appropriate 75% of the amount allocated and the City 25%. In this event, however, the library budget is subject to approval by the City and Town legislative bodies, and if either fails to approve, the preceding year’s budget is used. To date, the City’s allocated amount has not exceeded $300,000.

If the City’s allocated amount is $300,000 or less — which has thus far been the case — the apportionment formula is not used to determine the appropriation. Instead, a formula hypothesizing contributions of 60% from the Town and City and 40% from other sources is used. Under that formula, the City is responsible for appropriating $300,000 and the Town 60% of the over-all library budget minus $300,000. If the amounts obtained from other sources exceed 40% of the over-all budget, the amount the Town must actually contribute is correspondingly reduced. No approvals are required and neither the Town nor City can contest the amount to be appropriated (L 1987, ch 524, § 3).

The Controversy

In 1991 the library trustees set the budget at $1,448,570, determining that $612,570 would be raised from other sources and $836,000 would be obtained from the City and Town. With the Town having 71.23% of the total assessed value in the Library District, under the apportionment formula the Town would have been responsible for $595,482.80 ($836,000 X .7123) and the City $240,517.20 ($836,000 X .2877). Since the amount allocable to the City was less than $300,000, however, the apportionment formula was inapplicable. Instead, the City was responsible for $300,000 and the Town for a maximum of $569,142 — obtained by subtracting $300,000 from $869,142 (60% of $1,448,570). Since the trustees needed a total of $836,000 from the Town and City and the City was responsible for the set amount of $300,000, the Town was ultimately responsible for $536,000.

The Town refused to pay that amount, claiming it could raise only $423,309. However, the statute provides no authority for the Town to review — let alone reduce — its designated contribution. The Library District brought this action to compel the Town to pay the difference, and the City intervened. As an affirmative defense, the Town challenged the statutory method of determining its required appropriation, contending it is unconstitutional.

Analysis

Analysis of this statutory scheme requires two steps. First, we must determine whether the statute delegates taxing power to the Library District, or merely delegates the administration of a tax fixed by the Legislature. Delegation of purely administrative functions is constitutionally permissible (Matter of Levine v Whalen, 39 NY2d 510, 515). If, however, the power to tax has been delegated to the Library District, we must then decide whether such delegation falls within constitutional limitations.

I.

Under the statutory scheme as it has operated to date, the Library District sets the library budget with no input from the Town or the City. Under that budget, the City is responsible for a fixed sum — $300,000. Thus, the Legislature has set the amount and rate for the City. However, the amount that must be raised by the Town fluctuates with the total budget, the amount to be obtained from other sources, and the relative assessed values of property within the District. The Library District controls two of those variables: it alone sets the budget, and it alone estimates the amount of funds available from other sources. Therefore, although a complicated formula determines the actual amount the Town must raise, the simple fact is that the library trustees control the end result and thus effectively set the tax rate for the Town.

Respondents urge that the Library District is not exercising taxing powers because the amount the Town will have to pay —and therefore the Town’s effective tax rate — is capped by the statutory formula. It is argued that the Library District may constitutionally be given the discretion to set the tax rate so long as it remains below the cap (see, Gautier v Ditmar, 204 NY 20, 30 [where Legislature fixed maximum interest on tax liens at 12% purchasers’ acceptance of lower rates of interest is permissible]).

This argument does not withstand analysis. First, Gautier addressed the interest rate on unpaid taxes, not the tax rate itself. Second, unlike Gautier, here there is no fixed cap on the tax rate. Instead, the "cap” varies depending on figures set by the Library District. By controlling its estimated expenses and alternative sources, the Library District can effectively fix the Town’s tax rate. Thus, there is a delegation of taxing power to the Library District.

II.

The power to tax, of course, lies solely with the Legislature (NY Const, art III, § 1; art XVI, § 1; Sonmax, Inc. v City of New York, 43 NY2d 253, 257; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454, 459). This power is inherent in our form of government and justified by legislative accountability to the electorate. "The People have conferred upon their legislative body an unlimited power of taxation * * * and if legislators abuse their power in enacting some new plan of taxation, or act unwisely in imposing some new form of tax, it is to the People that they are answerable” (People ex rel. Eisman v Ronner, 185 NY 285, 291-292). "In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.” (McCulloch v Maryland, 4 Wheat [17 US] 316, 428.)

The taxing power may be delegated to legislative bodies of municipalities and quasi-municipal corporations (Foss v City of Rochester, 65 NY2d 247, 253; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454, 459, supra; Gautier v Ditmar, 204 NY, at 27; see also, 16 McQuillin, Municipal Corporations § 44.07, at 26 [3d ed]). Such delegation preserves legislative accountability since "the municipalities or political divisions * * * are through the local authorities representatives of the people and participants in the government of the state” (Gautier v Ditmar, 204 NY, at 27). To prevent local usurpation of the taxing power, such delegation must specify the types of taxes which may be imposed and provide for some type of administrative or judicial review (NY Const, art XVI, § 1; 1938 Const Convention, 2 Revised Record, at 747; vol 3, at 2439-2440).

The power to tax may not, however, be delegated to administrative agencies or other governmental departments (Gautier v Ditmar, 204 NY, at 27-28; Matter of Brooklyn Children’s Aid Socy. v Prendergast, 166 App Div 852, 861, affd 215 NY 705). "[I]t would be incompetent for the legislature to leave to a state officer or department the power to determine whether a tax should be levied, or at what rate, or upon what property” (Gautier v Ditmar, 204 NY, at 28).

Two types of municipal subdivisions exercise the kind of governmental powers warranting delegation of the power to tax: municipal corporations and district corporations. A "municipal corporation” is a county, city, town, village or school district (General Construction Law § 66 [2]). A "district corporation” is any other territorial division of the State which possesses the power to contract indebtedness and levy taxes or benefit assessments upon real estate or to require the levy of such taxes or assessments (General Construction Law § 66 [3]). Fire districts and certain conservation districts may be granted the powers of a district corporation (NY Const, art VIII, § 3).

While municipal corporations generally provide comprehensive local government services, school districts — created for the purpose of education — have long been viewed as independent units on a par with general municipal corporations (see, Union Free School Dist. No. 3 v Town of Rye, 280 NY 469, 476; Kenwell v Lee, 261 NY 113, 117). Fire districts are also distinct government units which exercise their powers independent of the towns they serve (see, Harland Enters, v Commander Oil Corp., 108 Misc 2d 511, 513; Bauman v Town of Irondequoit, 204 Misc 494, 501; 4 Opns St Comp, 1948, at 209, 210). They operate as autonomous political entities, electing their own governing bodies and administrative officers (Town Law §§ 174, 175), and have independent expenditure limitations (Town Law § 176). Because fire districts are independent government units, towns must levy the taxes specified by a fire district without change (Town Law § 105).

Prior to 1938, other special purpose corporations operated as units of government independent from the counties, cities, towns or villages where they were formed (3 Revised Record, op. cit, at 2506-2510; see also, Gaynor v Marohn, 268 NY 417; Sixth Report of NY St Commn for Revision of Tax Laws, 1935 NY Legis Doc No. 63, at 118-121). The increasing proliferation of special districts, all operating as independent units of government, however, grew problematic, and in 1938 it was decided that "the further development of overlapping, independent taxing units of government should be halted. Not only do such special taxing units seriously complicate the governmental structure of the State, and especially the fiscal aspect thereof, but they diminish both the direct administrative and financial responsibility of the normal units of government of the State.” (Report of Comms on State Finances and Revenues, Cities, Counties and Towns, and Villages, Doc No. 6, at 3, reprinted in 2 Revised Record, op. cit., at 1077.) Article VIII, § 3 was added to the State Constitution, limiting the creation of municipal and district corporations to counties, cities, villages, towns, school districts, fire districts and certain conservation districts (NY Const, art VIII, § 3). These governmental subdivisions operate as independent units to which the taxing power may be delegated.

Article VIII, § 3 did not end the creation of other special districts, but merely changed their character, bringing them closer to administrative departments (see, 3 Revised Record, op. cit., at 2509-2510). Special districts are still widely used for creating and funding local services, but are subject to control by the municipal corporations they serve (see, e.g., Town Law arts 12, 12-A [providing for the formation of a variety of special districts]; see also, NY Dept of State, Local Government Handbook, at 114 [3d ed] [listing town improvement districts]).

The general statutes do not provide for the creation of library districts — libraries are generally created and funded by municipal corporations under the Education Law (Education Law §§255, 256). In recent decades, however, several special library districts have been created, either to limit support of a library to one part of a town or school district (see, e.g., L 1975, ch 593), or to expand support to more than one municipality (see, e.g., L 1992, ch 456). There are currently 26 such districts, including the one at issue. None of the special library districts — except for the one before us — has been delegated the power to tax.

As the Library District recognizes, special library districts are most like public improvement districts. Their function is to provide a mechanism for creating and funding library systems similar to those authorized under the Education Law. Special library districts cannot be created as full-blown independent governmental units; like public improvement districts, they are properly viewed as administrative departments. Respondent City’s argument that the taxing powers given to the Library District are constitutional because they are no different from those given to fire districts is thus without merit.

Our conclusion is supported by the policy that underlies the taxation power: broad discretion granted to the Legislature, moderated by accountability to the electorate (Gautier v Ditmar, 204 NY, at 27; People ex rel. Eisman v Ronner, 185 NY, at 292). Our system of government reflects this policy.

The governing bodies of independent units — counties, cities, towns, villages, school districts and fire districts — are generally elective (NY Const, art IX, § 1; Local Government Handbook, op. cit., at 145-146). Thus, delegation to these officials preserves accountability in taxation matters. In addition, even where the local governing body may be appointed (see, e.g., Town Law § 189-e [voters may choose whether board of joint fire district is elected or appointed]), the budget process — and thus the taxing power — is subject to legislative and voter oversight (see, e.g., Town Law § 179 [fire district expenditure limits]; see generally, Local Government Handbook, op. cit., at 131-132 [school districts]; at 148-153 [voter referenda and public hearings]).

The statute at issue contains none of these hallmarks of accountability. Library District trustees are appointed, there is virtually no legislative control — even where legislative review is provided, if the City or Town legislative body disapproves, the trustees’ own budget from the prior year is used— and there is no voter input. Policy therefore also supports our conclusion that the delegation of the power to tax under L 1987, ch 524 is unconstitutional.

In view of our disposition, it is unnecessary to reach the remaining issues raised by appellant.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring that chapter 524 of the Laws of 1987 is unconstitutional and that defendant is not under a legal duty to pay to plaintiff Greater Poughkeepsie Library District the 1991 budget contribution computed pursuant to chapter 524.

Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, with costs, and judgment granted in accordance with the opinion herein.


author: Hancock, Jr., J. Titone, J.

text:
    [619 NE2d 369, 601 NYS2d 432]
    Gertrude J. Cooper, Appellant, v City of New York et al., Respondents, et al., Defendant.
    Argued May 4, 1993;
    decided June 15, 1993

      POINTS OF COUNSEL

      Molod & Berkowitz, New York City, and Seligson Rothman & Rothman (Martin S. Rothman, Seymour Berkowitz and Alyne I. Diamond of counsel), for appellant.
    I. General Municipal Law § 205-e, as amended (L 1992, ch 474), dispositively supports plaintiff Cooper and mandates reversal of the order of the Court below, reinstatement of the complaint and remand of the matter to the Court below for a review of the issue of damages. The statute declares in pertinent part that a police officer has a cognizable cause of action against a tortfeasor for personal injuries sustained "at any time or place” (emphasis added) for line-of-duty injuries resulting from a violation of a statute, ordinance, rule, order or requirement of a governmental body. (Matter of Asman v Ambach, 64 NY2d 989; Strauss v University of State of N. Y., 2 NY2d 464; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Giblin v Nassau County Med. Ctr., 61 NY2d 67; Sega v State of New York, 60 NY2d 183; Consumer Prod. Safety Commn. v GTE Sylvania, 447 US 102; Zion v Urtz, 50 NY2d 92; Matter of State of New York v Ford Motor Co., 74 NY2d 495; Matter of

      Schmidt v Roberts, 74 NY2d 513.) II. The controlling effect of Poniatowski v City of New York (14 NY2d 76 [1964]) and of Wiseman v City of New York (10 NY2d 952 [1961]), which clearly recognized that a police officer who is injured in circumstances almost identical to those at bar has a cognizable cause of action against the City, are dispositive in plaintiffs favor; and, on the threshold level, render "the fireman’s rule”, General Municipal Law § 205-e, and Santangelo v State of New York (71 NY2d 393 [1988]) immaterial and irrelevant herein. (Buckley v City of New York, 176 AD2d 207; Lawrence v City of New York, 56 NY2d 300; Ramos v Doesn’t Matter Realty Corp., 153 Misc 2d 80.) III. Since the act which occasioned the need for the services of the police was separate, apart, distinct and independent from the negligent operation of the police vehicle, the "fireman’s rule” is inapplicable and plaintiff has a common-law action against the City and there is no need to invoke the remedial provisions of General Municipal Law § 205-e. (Janeczko v Duhl, 166 AD2d 257; Sharkey v Mitchell’s Newspaper Delivery, 165 AD2d 664; laccarino v Welland Estates, 178 AD2d 402; Guadagno v Baltimore & Ohio R. R. Co., 155 AD2d 981; Germain v Cherico, 178 AD2d 461; Magness v Glandorf, 171 AD2d 652; Boglioli v Fletcher, 170 AD2d 425; Brofsky v City of New York, 172 AD2d 640; Dawes v Ballard, 133 AD2d 662; Murphy v Creative Foods Corp., 170 AD2d 441.)

      O. Peter Sherwood, Corporation Counsel of New York City (Linda H. Young and Pamela Seider Dolgow of counsel), for City of New York, respondent.
    I. Plaintiff should not be allowed to rely on a statutory theory to support her complaint when that theory was not pleaded, was not even mentioned at trial and appeared for the first time as a preservation argument on appeal. (Gannon v Royal Props., 285 App Div 131, 309 NY 819; Maisch v City of New York, 181 AD2d 467; Sciarrotta v Valenzuela, 182 AD2d 443; Sutherland v Hallen Constr. Co., 183 AD2d 887; Austin v City of Buffalo, 179 AD2d 1075, 79 NY2d 1033; Brown v Ellis, 145 Misc 2d 1085, affd sub nom. Brown v Harrington, 150 Misc 2d 375; Gordon v American Museum of Natural History, 67 NY2d 836; Quain v Buzzetta Constr. Corp., 69 NY2d 376; Szigyarto v Szigyarto, 64 NY2d 275; Martin v City of Cohoes, 37 NY2d 162.) II. Santangelo bars recovery by a police officer injured not merely in the course of official police duties but while in the midst of responding to an emergency call. (Santangelo v State of New

      York, 71 NY2d 393; Pascarella v City of New York, 146 AD2d 61, 74 NY2d 610; Maisch v City of New York, 181 AD2d 467; Sciarrotta v Valenzuela, 182 AD2d 443; Buckley v City of New York, 176 AD2d 207, 79 NY2d 757; Duccilli v Belko Steel Corp., 163 AD2d 89; Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478, 78 NY2d 863; Dowell v Bacarella, 170 AD2d 435; Sledge v City of New York, 173 AD2d 534, 78 NY2d 1101.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiff, a police officer, was injured when the police vehicle in which she was riding as a "recorder” struck another vehicle in responding to an "officer in need of assistance emergency call”. The decisive issue presented in plaintiff’s appeal is whether the Appellate Division properly reversed the judgment against the City after a jury verdict and dismissed the complaint under Santangelo v State of New York (71 NY2d 393) which holds that police officers like firefighters generally cannot recover for injuries resulting from the special risks inherent in the duties they are engaged to perform (id., at 397). For reasons which follow we hold that the dismissal was proper and, accordingly, affirm.

I

The following facts taken from the trial testimony are pertinent. On December 14, 1984, plaintiff, in performance of her duties as a police officer, was riding as a passenger "recorder” in a police car operated by Officer Bakal. At about 9:00 p.m. the police car received a "1013” call — a top-priority call, which must be responded to, indicating that a fellow officer is in trouble and needs assistance. When the call was received, it was dark and just beginning to rain. In responding to the "1013”, plaintiff and Officer Bakal proceeded at approximately 40 miles per hour with the car’s red light flashing and sirens sounding. The accident occurred when the police car crashed into the rear of defendant Hall’s automobile which was stopped at an intersection for a red light. There was a conflict in the proof as to whether defendant Hall had changed lanes immediately prior to the impact.

At the conclusion of the evidence, the City moved to dismiss plaintiff’s complaint under the Santangelo rule. The Court denied the City’s motion and submitted the case to the jury which found that defendant Hall was free of fault and that Officer Bakal’s negligence was the sole cause of the collision. Plaintiffs complaint was subsequently dismissed as against defendants Bakal and Hall. The action against those defendants is not before this Court.

The trial court denied the City’s motion to set aside the verdict and its renewed motion to dismiss under Santangelo. The court, however, granted the City’s motion to reduce the verdict and entered a judgment for the reduced sum. The City appealed to the Appellate Division and plaintiff cross-appealed on the question of the reduction in damages. Citing Santangelo, the Appellate Division unanimously reversed and dismissed the complaint. Although the theory was not pleaded in the complaint or asserted before the trial court, the Appellate Division, in the exercise of its discretion, considered and rejected plaintiffs unpreserved contention that there was a basis for the City’s liability under General Municipal Law § 205-e.

We granted leave to appeal to plaintiff to address her contention that the Santangelo rule does not apply because the action falls within the exception to that rule which assertedly applies when there is a sufficient degree of separation between the negligent act causing the injury and the event which occasioned the services being performed. In this Court, plaintiff argues additionally that the Appellate Division erred in rejecting her argument pertaining to General Municipal Law § 205-e. However, because the General Municipal Law § 205-e theory was not submitted to the jury for its consideration and was thus unpreserved, that theory is not available to plaintiff in this Court as a basis for reversal (see, Lichtman v Grossbard, 73 NY2d 792, 794-795; Gordon v American Museum of Natural History, 67 NY2d 836, 837, n). We turn to a discussion of plaintiffs arguments concerning Santangelo.

II

In Santangelo, this Court decided that the so-called "fireman’s rule” (see, e.g., McGee v Adams Paper & Twine Co., 26 AD2d 186, 190, affd on opn below 20 NY2d 921) should be applied to claims of police officers as well as those of firefighters for injuries resulting from the particular dangers associated with the performance of their duties (Santangelo, supra, at 397-398). We observed that the "fireman’s rule” was grounded on the public policy that "firefighters trained and compensated to confront such dangers [i.e., risks of negligence-related injuries in fighting fires] must be precluded from recovering damages for the very situations that create a need for their services” (id., at 397). We pointed out that in the more recent cases cited from other jurisdictions the rationale for the "fireman’s rule” has been cast "in terms of assumption of risk: persons who choose to become firefighters assume the risks of fire-related injuries, including the risk of negligence of property owners and occupants in maintaining their premises (see, e.g., McGee v Adams Paper & Twine Co., 26 AD2d, at 190, supra; see also, Pottebaum v Hinds, 347 NW2d 642 [Iowa]; Calvert v Garvey Elevators, 236 Kan 570, 694 P2d 433; Armstrong v Mailand, 284 NW2d 343 [Minn]; Krauth v Geller, 31 NJ 270, 157 A2d 129(id., at 397 [emphasis added]). We concluded that these same policy considerations are equally relevant to line-of-duty injuries sustained by police officers. Thus, plaintiff Santangelo was precluded from recovering for injuries incurred in apprehending an escaped mental patient because such function was within the scope of a police officer’s duties and the risk of injury was inherent in the task. Here, as in Santangelo, plaintiff, in riding as a passenger "recorder” in a vehicle responding to a "1013” emergency call, was performing a function endowed with the special risks inherent in the duties of a police officer. It is undisputed that responding to an emergency call would require crossing intersections in excess of the speed limit and against the traffic signals, irrespective of weather and lighting conditions, with the attendant possibility of collision. Responding to such an emergency entails risks that are clearly inherent in the type of police duties contemplated by the Santangelo rationale.

Plaintiff argues, however, that the Santangelo rule should not apply because the negligence causing her injuries — i.e., the improper driving of Officer Bakal — was separate and distinct from the incident which necessitated the police car’s emergency response to the "1013” call. Plaintiff cites Appellate Division decisions as authority for her asserted "separate and distinct” exception to the Santangelo rule (see, e.g., Janeczko v Duhl, 166 AD2d 257, 259-261; Sharkey v Mitchell’s Newspaper Delivery, 165 AD2d 664; Starkey v Trancamp Contr. Corp., 152 AD2d 358, 361; but see, Pascarella v City of New York, 146 AD2d 61, 68-69, lv denied 74 NY2d 610 [Santangelo applied to preclude recovery of policeman injured in explosion while investigating report of terrorist bomb]; Buckley v City of New York, 176 AD2d 207, 208, lv denied 79 NY2d 757 [San-tangelo a bar to claim of policemen injured in apprehending criminal suspect based on City’s failure to follow operating procedures]). The "separate and distinct” exception which plaintiff would have us adopt is that articulated in Starkey— i.e., that the application of Santangelo should depend on "the degree of separation between the negligent act directly causing the injury and the act which occasioned the police officer’s services” (Starkey, supra, at 361 [emphasis added]). In Starkey, the Appellate Division declined to apply Santangelo because the injury sustained by a police officer from a defective condition at a construction site was separate and apart from the reason for his being at the site.

Our Court, however, has never adopted the proposed "separate and distinct” exception and, indeed, to do so would be inconsistent with the rationale of Santangelo. Rather, as noted in Pascarella (supra, at 68-69) and Buckley (supra, at 208) the determinative factor is whether the injury sustained is related to the particular dangers which police officers are expected to assume as part of their duties. Thus, in Pascarella, where plaintiff’s claim against the City was based, in part, on the negligence of other police officers in failing to follow instructions for bomb disposal, the Appellate Division dismissed the claim, quoting our statement in Santangelo that police officers "receive both training that enables them to minimize the dangers their occupation requires them to face, and compensation and special benefits to help assure that the public will bear the costs of injuries suffered by its protectors in the line of duty” (Santangelo, supra, at 397-398).

The Pascarella Court added that "individuals who elect to join the uniformed services do so with knowledge of the dangers attendant upon those occupations and the distinct possibility that they might be hurt in the course of their employment. It is precisely because being a police officer is so hazardous that the Legislature has provided for added benefits to those injured in the line of duty” (Pascarella, supra, at 69-70; see, Buckley v City of New York, supra, at 208 [citing Santangelo for the proposition that police officers may not generally recover damages for negligence relating to hazards and emergencies for which they are trained and compensated]). Here, there is no question that plaintiff’s injuries were related to a particular risk that she had assumed as part of her duties. Part of that risk was the possibility of injury while rushing to the scene of an emergency. That no connection can be shown between Officer Bakal’s negligence and the unknown incident that gave rise to the emergency call is of no moment. What matters is the connection between plaintiff’s injury and the special hazard that plaintiff assumed as part of her police duties.

Plaintiff contends, however, that even though her claim is related to special hazards inherent in the police function, Santangelo should not apply because her claim against the City is based on the negligence of a fellow servant. In effect, she argues that all fellow-servant claims of negligence against the City are actionable because we have abrogated the general common-law fellow-servant doctrine, which traditionally prohibited recovery by an employee against an employer based on the negligence of another employee (see, Buckley v City of New York, 56 NY2d 300, 305 [concluding that the "fellow-servant rule is no longer to be followed in New York”]; see also, Poniatowski v City of New York, 14 NY2d 76, 81). Nothing in our Santangelo decision supports that argument. To carve out an exception for claims otherwise falling within Santangelo but resulting from the negligence of fellow servants would amount to a contradiction of the rule’s rationale. The policy reasons — i.e., that police officers and firefighters are trained and compensated to encounter the special hazards inherent in their work and assumed as part of their employment — apply equally whether these hazards relate to negligence of third parties or fellow servants (Santangelo, supra, at 396-397). Moreover, to engraft such an exception onto Santangelo would create an obvious anomaly. Police officers injured by the negligence of a third party in a work-related accident resulting from a risk inherent in their work would be barred under Santangelo but those injured in similar circumstances by the negligence of fellow servants would be permitted to recover. We thus reject the broad "fellow-servant exception” to San-tangelo urged by plaintiff and apparently the dissent.

We emphasize, however, that the Santangelo rule does not preclude all causes of action against a municipality for injuries resulting from a fellow police officer’s negligence; nor is Santangelo at odds with our previous holdings in which we abrogated the general prohibition of the fellow-servant rule (see, Buckley, 56 NY2d 300, supra; and Poniatowski, supra). As noted, the Santangelo rule bars only those claims for injuries caused by the negligence of a fellow police officer when the injury is related to the dangers that are associated with police functions — as, for example, for an injury resulting from a bomb explosion (see, Pascarella, supra), an injury caused from the improper apprehension of a suspect (see, Buckley, 176 AD2d 207, supra) or, as here, for injuries sustained in responding to an emergency "1013” call. Obviously, injuries could be sustained by police officers as a result of negligence of their fellow officers during the performance of their work which are wholly unrelated to the assumed risks of police duty. It follows that Santangelo and the precedent of this case would not be a bar to the wide range of claims based on negligence of fellow servants where the risk factors on which the Santangelo decision is predicated are not present (see, Kenavan v City of New York, 70 NY2d 558, 569; Buckley, 56 NY2d 300, supra).

Finally, our decision today is consistent with our holding in Kenavan in which the claims against the municipality were dismissed for a different and unrelated reason, i.e., on the basis of the general governmental immunity rule protecting a municipality from liability for "judgmental errors in the exercise of its governmental functions (see, e.g., Weiss v Fote, 7 NY2d 579, 584-587)” (Kenavan, supra, at 569; see, McCormack v City of New York, 80 NY2d 808, 811 [dismissing the claim on the same ground and citing, inter alia, Haddock v City of New York, 75 NY2d 478, 484]).

The concerns expressed in the dissent, we believe, are sufficiently answered by the points already made: (1) that the Santangelo rule is a narrow one covering only claims arising out of the special hazards inherent in police functions; (2) that our holding here neither overrules nor limits our previous decisions abrogating the traditional common-law fellow-servant rule; and (3) that our holding does not affect a broad area of claims based on negligence of fellow servants outside of those which fall within the Santangelo rule.

The order of the Appellate Division should be affirmed, with costs.

Titone, J.

(dissenting). The majority concludes that the "firefighter rule” bars plaintiff from suing the municipality for injuries sustained in a line-of-duty car accident caused by a coworker. The Court then addresses the viability of the claimed "separate and distinct” exception to that rule. In my view, however, the pivotal inquiry should be whether the "firefighter rule” has any application at all to this co-worker negligence suit. Notably, the "firefighter rule” has not previously been applied in New York to bar recovery for line-of-duty injuries occasioned by the plaintiff’s fellow servant. Rather, this type of claim has been permitted and is directly governed by an independent line of cases, the vitality of which has recently been confirmed in our decisions in Kenavan v City of New York (70 NY2d 558) and McCormack v City of New York (80 NY2d 808). Moreover, no compelling policy justification exists for penalizing police officers and firefighters —solely because of the occupation they have chosen — for the carelessness of their fellow servants by barring their recovery under an extension of the "firefighter rule”. Indeed, application of the "firefighter rule” to co-worker negligence cases will lead to exactly the type of unjustifiable hardship that this Court attempted to avoid when it abolished the "fellow-servant” rule in Buckley v City of New York (56 NY2d 300). Accordingly, I respectfully dissent.

The majority has affirmed the Appellate Division’s application of the "firefighter rule” as a common-law bar to plaintiff’s suit. However, the "firefighter rule”, which precludes firefighters and, after Santangelo v State of New York (71 NY2d 393), police officers from recovering for line-of-duty injuries caused by "negligence in the very situations that create the occasion for their services” (id., at 397), has never been applied to bar a suit where the tortfeasor was a co-worker of the injured plaintiff. Indeed, every case in which the rule has previously been applied has involved negligent acts committed by a third party, such as an escaping criminal or the owner of land to which the officer or firefighter is summoned in an emergency (see, Santangelo, supra [suit against hospital staff for negligent supervision of mental patient who injured police officer during attempted escape]; Sciarrotta v Valenzuela, 182 AD2d 443 [suit against negligent driver who struck police officer directing traffic]; Maisch v City of New York, 181 AD2d 467 [suit by police officer against owner of premises for negligent maintenance of steps]; Furch v General Elec. Co., 142 AD2d 8 [claim by firefighter against contractors whose negligent construction of office building caused toxins to be released throughout burning building]).

The majority suggests that the "firefighter rule” was applied in Pascarella v City of New York (146 AD2d 61, lv denied 74 NY2d 610) to bar a claim against the City based "on the negligence of other police officers in failing to follow instructions for bomb disposal” (see, majority opn, at 590). However, the Court’s dismissal of plaintiff Pascarella’s claim was not predicated on the "firefighter rule”. The plaintiff police officer, injured when a terrorist bomb exploded outside the police headquarters, sued the municipality on the ground that the agency’s creation of a written internal procedure for handling a bomb threat created a special duty owed by the municipality to the plaintiff which provided an exception to the municipality’s general immunity from negligence claims. The Appellate Division held that the police agency did not create a special relationship with its employees which would render it liable to them for negligence whenever it adopts internal policies which it fails to adhere to. The Court also held that even had the supervising officer exercised poor judgment in failing to deploy a bomb squad under existing departmental guidelines, such policy determinations were insulated from liability under Kenavan v City of New York (supra), which held that discretionary decisions made by fellow officers in the exercise of their professional judgment are not actionable in tort. Pascarella thus concerned only the application of two separate aspects of the governmental immunity doctrine; the "special duty” rule and the "immunity for discretionary decisions” rule (see, e.g., Tango v Tulevech, 61 NY2d 34). Regardless of how this lower court case is characterized, this Court has not previously applied the "firefighter rule” to negligence suits based on the conduct of a fellow servant.

That the "firefighter rule” has not previously been applied to bar actions predicated on co-worker negligence is no accident. In fact, an independent line of cases has developed to govern the exact circumstance where the negligence complained of is attributable to a "fellow servant”. However, for reasons which are not apparent, the majority disregards this line of cases, which removed any common-law impediment to such recovery. The existence of this peculiarly applicable precedent renders the majority’s extension of the "firefighter rule” an unwarranted intrusion on settled principles without compelling justification.

The onerous "fellow-servant” rule, which developed at common law to preclude respondeat superior claims against an employer by an employee injured in the workplace due to the negligence of a co-worker, was abolished by this Court in Buckley v City of New York (56 NY2d 300, supra) on the ground that it worked "an unjustifiable hardship upon individuals injured in the workplace” (id., at 305). Focusing on the role of the employer, we reasoned that it was illogical to permit a third party, but not an employee, to recover from the employer for the negligence of a co-worker where "in both instances the employer might have avoided the injury by selection of more careful employees” (id., at 303). Indeed, the Buckley Court acknowledged that "the class of persons most frequently endangered by the negligence of an employee — his fellow workers — should not, without compelling reason, be denied a remedy accorded to the general public” (id., at 303).

Significantly, both Buckley and its companion case (Lawrence v City of New York, 56 NY2d 300) involved line-of-duty injuries sustained by members of the City’s uniformed services. Yet, the Court did not feel called upon to apply the "firefighter rule” as a bar to recovery, even though that rule had been in existence for at least 14 years (see, McGee v Adams Paper & Twine Co., 20 NY2d 921, affg 26 AD2d 186). It could be argued that the absence of a reference to the "firefighter rule” in Buckley is unsurprising in that the preSantangelo case involved an injured police officer, and the "firefighter rule” was not legally applicable to police officer claims until Santangelo extended it. However, the same cannot be said about the companion case, Lawrence v City of New York, in which the injured plaintiff was a firefighter. Presumably, if the "firefighter rule” was never limited to claims against third-party tortfeasors such as landowners, it would have been applied in Lawrence to bar the firefighter’s attempt to recover for line-of-duty injuries. The fact that the rule was not applied — or even mentioned — suggests that it was at that time assumed to have no application in the context of a suit brought to remedy the negligence of a co-worker.

That nothing since Buckley has altered the law in this area is confirmed by this Court’s recent formulation of the law governing firefighters’ and police officers’ negligence suits against municipal employers. In Kenavan v City of New York (70 NY2d 558, supra), a case involving a firefighter’s line-of-duty injuries, we specifically relied on Buckley to support our ruling that "[although a municipality may be held liable for injuries suffered by a firefighter caused by the negligence of a fellow firefighter (see, e.g., Buckley v City of New York, 56 NY2d 300, 305 * * *), liability will not be imposed where the firefighter’s conduct involves the exercise of professional judgment” (id., at 569 [emphasis supplied; some citations omitted]). Plainly, the italicized language would not have been a true statement of the law if, as the majority asserts, the "firefighter rule” has always barred recovery for line-of-duty injuries caused by co-workers’ negligence. Moreover, if the majority’s assertion were correct, the qualifying rule articulated in Kenavan — i.e., that "liability will not be imposed where the [coworker’s] conduct involves the exercise of professional judgment” — would have been completely superfluous. In fact, the Pascarella case, so heavily relied upon by the majority to support its proposition that the "firefighter rule” also governs line-of-duty injuries caused by a co-worker, similarly recognized that a municipality could be responsible under the doctrine of respondeat superior "for acts committed by its employees in the scope of their employment” (146 AD2d, at 68).

Without explanation, the majority concludes that its decision today is entirely consistent with the holdings in Kenavan and McCormack because in those cases "the claims against the municipality were dismissed for a different and unrelated reason” — on the basis of governmental immunity from judgmental errors (majority opn, at 592). However, this leap in logic is belied by the express language in Kenavan, which states that unless the injury-producing conduct involved an act of professional judgment, a municipality may otherwise be held liable for "injuries suffered by a firefighter caused by the negligence of a fellow firefighter” (70 NY2d, at 569). Indeed, if the "firefighter rule” bars recovery for all line-of-duty injuries regardless of the source of the negligence, as the majority holds, application of the governmental immunity doctrine to bar a suit where the colleague’s official action involves the exercise of expert judgment in policy matters would be unnecessary.

Similarly, implicit in our later holding in McCormack v City of New York (80 NY2d 808, supra), that a plaintiff police officer could not recover for injuries occasioned by a commanding officer’s discretionary act, is the converse conclusion that negligent acts of co-workers not involving the exercise of professional judgment constitute actionable conduct. Once again, had we considered the "firefighter rule” a general bar to recovery for line-of-duty injuries, we would have had no need in McCormack to discuss whether the allegedly negligent police officer’s conduct was immune from liability because it was classifiable as the exercise of professional judgment.

In view of the holdings and analysis in Buckley, Kenavan and McCormack, the majority’s application of the "firefighter rule” in this context can only be regarded as a dramatic extension of that rule and a significant departure from past precedent. While altering the common-law’s status quo is certainly a prerogative of this, the State’s highest Court, I cannot agree that there are sound reasons for doing so here.

Attempting to limit the far-reaching effect of its holding, the majority states that the "firefighter rule” "does not preclude all causes of action against a municipality for injuries resulting from a fellow police officers’ negligence”, but only those in which the injuries are "related to the dangers that are associated with police functions” (majority opn, at 591). However, the majority fails to explain what "obvious” category of cases would involve injuries during work performance which are "wholly unrelated to the assumed risks of police duty” (majority opn, at 592). By definition, all cases of "fellow-servant” negligence will inherently involve injury "associated with police functions” because the municipality can only be held liable on respondeat superior theories for an employee’s negligent conduct that occurs during the scope of employment, i.e., during crimefighting or firefighting. Thus, despite the majority’s protestation, it is hard to imagine any instance where the majority’s holding would not bar recovery for a fellow-servant’s negligence.

The underlying rationale for the firefighter rule is that public funds should not be used to pay damages for line-of-duty injuries sustained by firefighters and police officers who are "experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence” (Santangelo, supra, at 397). The majority concludes that the "firefighter rule” bars claims based on the negligence of third parties and fellow servants alike because '' 'persons who choose to become firefighters assume the risks of fire-related, injuries, including the risk of negligence of property owners and occupants in maintaining their premises’ ” (majority opn, at 589, quoting Santangelo, supra, at 397 [emphasis added]). However, while the italicized language may support the conclusion that police officers and firefighters assume the risks inherent in fighting crime and fires, it does not follow from those terms that police officers and firefighters analogously assume the additional and entirely separate risks associated with the carelessness of their co-workers. Those risks are certainly not part of the hazards that police and firefighters expect to encounter in the ordinary course of their employment.

As between a negligent member of the general public and a trained police officer or firefighter, losses due to negligence at the scene of the emergency should be assumed by the trained expert. However, no similar policy consideration justifies application of that rule where the plaintiff and the tortfeasor are presumably equally trained, and where the plaintiff, a passenger in a negligently driven police car, had no more opportunity than a member of the general public would have had to employ any special skills to avoid injury. Where the tortfeasor is a co-worker employed by a municipality, the burden should be placed on the municipal employer engaged in the selection and training of its personnel because that entity is in the best position to avoid the injury. The loss should not be borne by the injured police officer who exercises no control over his or her negligent co-worker. Notably, the majority’s extension of the "firefighter rule” to these facts to all but eliminate the common-law right to recover for line-of-duty injuries, as well as its summary rejection of the "separate and apart” exception, is inconsistent with a trend in other jurisdictions towards limiting application of the rule by creating exceptions for independent acts of negligence or willful and wanton conduct (see, e.g., Garcia v City of S. Tucson, 131 Ariz 315, 640 P2d 1117, 1120; Rose v City of Los Angeles, 159 Cal App 3d 883, 206 Cal Rptr 49; Winn v Frasher, 116 Idaho 500, 777 P2d 722; Pottebaum v Hinds, 347 NW2d 642 [Iowa]; Griffith v Southland Corp., 94 Md App 242, 617 A2d 598; Wagener v Burmeister, 858 SW2d 865 [Mo]; Gould v George Brox, Inc., 137 NH 85, 623 A2d 1325; Mahoney v Cams Chem. Co., 102 NJ 564, 510 A2d 4).

Ultimately, the majority here has effectively revived the "fellow-servant” rule abolished in Buckley (supra) by denying police officers and firefighters, as a class, the right to maintain a common-law action against the municipal employer for line-of-duty injuries caused by a co-worker. Contrary to the majority’s suggestion that I am urging a " 'fellow-servant exception’ ” to the "firefighter rule” (see, majority opn, at 591), my position is that the "firefighter rule” has always been an exception to the general rule of liability established in Buckley, and should continue to be an exception, not the general rule. Unfortunately, the majority’s holding removes from those agencies entrusted with the crimefighting and firefighting functions the incentive to carefully select and train public servants carrying out those tasks, and may destroy the trust between fellow firefighters and police officers that is so critical. Accordingly, because no compelling policy or case-law justification exists for penalizing police officers and firefighters for the carelessness of their fellow servants by extending the "firefighter rule” to co-worker negligence cases, I would reverse the Appellate Division order dismissing the complaint and reinstate plaintiffs verdict.

Chief Judge Kaye and Judges Simons and Bellacosa concur with Judge Hancock, Jr.; Judge Titone dissents and votes to reverse in a separate opinion; Judge Smith taking no part.

Order affirmed, with costs.

       The bar to plaintiffs claim in Buckley v City of New York (176 AD2d 207, lv denied 79 NY2d 757), also cited by the majority (see, majority opn, at 589) was ultimately based not on the firefighter rule, but on the fact that the alleged act of negligence involved the exercise of poor judgment by a superior, which is not actionable under Kenavan v City of New York (supra).