DURANDETTE v. William J. Uva, Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Sylvester DURANDETTE, Plaintiff, v. CITY OF SYRACUSE FIRE DEPARTMENT, Appellant, William J. Uva, Respondent.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, CALLAHAN, DOERR and BOEHM, JJ. Corporation Counsel's Office by Vanessa L. Smith, Syracuse and Terri Conti York, New York City, for Appellant. Hancock and Estabrook, L.L.P. (Patrick M. Connors, of counsel), Syracuse, for Respondent.

Plaintiff commenced this action against his employer, defendant City of Syracuse Fire Department (Fire Department), and his fellow firefighter, defendant William J. Uva, to recover for injuries he allegedly sustained when Uva struck him in the back.   The complaint sets forth causes of action alleging negligence and assault against Uva and negligent hiring and supervision against the Fire Department.

Based upon undisputed evidence that plaintiff received benefits pursuant to General Municipal Law § 207-a, Supreme Court granted the motion of the Fire Department for summary judgment dismissing the complaint against it (see, Damiani v. City of Buffalo, 198 A.D.2d 814, 815, 603 N.Y.S.2d 1006, lv. denied 83 N.Y.2d 757, 615 N.Y.S.2d 874, 639 N.E.2d 415;  O'Dette v. Parton, 190 A.D.2d 1074, 1075, 593 N.Y.S.2d 690;  see also, Deutsch v. Great Atl. & Pac. Tea Co., 89 A.D.2d 597, 452 N.Y.S.2d 469).   The Fire Department appeals from that part of the order denying its motion to dismiss Uva's cross claim alleging that plaintiff's injuries were the result of the Fire Department's negligence and seeking apportionment of liability and contribution.

 We affirm.  “[C]ontribution is permitted even in favor of an intentional wrongdoer if the parties are subject to liability to plaintiff for damages for the same injury” (Corva v. United Servs. Auto. Assn., 108 A.D.2d 631, 632, 485 N.Y.S.2d 264, citing 2A Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 1401.12;  see, Nassau Roofing & Sheet Metal Co. v. Facilities Dev. Corp., 71 N.Y.2d 599, 602-603, 528 N.Y.S.2d 516, 523 N.E.2d 803;  Smith v. Guli, 106 A.D.2d 120, 122-123, 484 N.Y.S.2d 740).   The Fire Department is subject to liability to plaintiff based upon its alleged negligence in hiring, retaining, training or supervising Uva, plaintiff's fellow employee (see, Bomba v. Borowicz, 265 App.Div. 198, 199, 38 N.Y.S.2d 403).   The fact that plaintiff may not sue the Fire Department directly does not foreclose Uva from seeking apportionment of liability and contribution (see, Dole v. Dow Chem. Co., 30 N.Y.2d 143, 152, 331 N.Y.S.2d 382, 282 N.E.2d 288;  Zahno v. Urquart, 213 A.D.2d 1004, 625 N.Y.S.2d 111;  Briscoe v. Williams, 50 A.D.2d 883, 377 N.Y.S.2d 163).

Order unanimously affirmed with costs.

MEMORANDUM: