FOULKES v. CITY OF NEW YORK (1999)

Order, Supreme Court, New York County (Jane Solomon, J.), entered February 27, 1998, which granted defendant City's motion to dismiss plaintiff firefighter's complaint under General Municipal Law § 205-a for failure to state a cause of action, unanimously affirmed, without costs.

 Plaintiff cannot and does not contend that his disabling lung condition, allegedly caused by prolonged exposure to diesel fumes at a firehouse, was the result of an “accident” within the meaning of General Municipal Law § 205-a, i.e., of a “sudden fortuitous mischance” (see, Martzloff v. City of New York, 238 A.D.2d 115, 118, 655 N.Y.S.2d 43, lv. dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 273, 686 N.E.2d 1368 [defining accident under General Municipal Law § 205-e];  Desmond v. City of New York, 88 N.Y.2d 455, 463, 646 N.Y.S.2d 492, 669 N.E.2d 472 [“wherever practical and sensible, sections 205-a and 205-e should be construed and applied in the same way”] ).   Instead, plaintiff argues that the issue of whether his lung condition was the result of an accident was previously decided in his favor when he was granted an accidental disability pension, and that the City is collaterally estopped from asserting the contrary.   We disagree.   Under Administrative Code of the City of New York § 13-354, the “Lung Bill”, plaintiff's application for an accidental disability pension enjoyed a presumption that his condition was accidental in origin (cf., Uniformed Firefighters Assn. v. Beekman, 52 N.Y.2d 463, 438 N.Y.S.2d 746, 420 N.E.2d 938 [interpreting General Municipal Law § 207-k, the “heart bill”];  see, Matter of Battista v. Board of Trustees, 188 A.D.2d 598, 591 N.Y.S.2d 492, lv. denied 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590).  Since no such presumption exists under General Municipal Law § 205-a, it cannot be said that the issue in the pension proceeding was the same as that herein.   Nor could the City have foreseen the possibility of litigation under General Municipal Law § 205-a at the time of the pension proceeding, which took place prior to the 1996 amendment to that statute expanding its scope to include line of duty injuries sustained “at any time or place” (see, Schiavone v. City of New York, 92 N.Y.2d 308, 315, 680 N.Y.S.2d 445, 703 N.E.2d 256;  see also, Ryan v. New York Tel., 62 N.Y.2d 494, 501, 478 N.Y.S.2d 823, 467 N.E.2d 487).   We would add that, as argued by the City but never reached by the IAS court, the action should also be dismissed on the ground that plaintiff does not allege that his injuries were sustained during the discharge or performance of his duties, which remains a prerequisite to recovery under the 1996 amendment (see, McKinney's Cons. Laws of N.Y., Book 23, General Municipal Law § 205-a, 1999 Cumulative Pocket Part, at 50, Historical and Statutory Notes, L. 1996, ch. 703, § 3).

MEMORANDUM DECISION.