Pollini v. FULLER RD. FIRE DEP'T

34 N.Y.2d 744 (1974)

Mario Pollini, Appellant, v. Fuller Road Fire Department et al., Respondents.

Court of Appeals of the State of New York.

Argued March 25, 1974.

Decided May 9, 1974.

Zola A. Aronson for appellant.

E. Richard Rimmels, Jr. and Frederic H. Montfort for Hicksville Fire Department and Hicksville Fire District, respondents.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS concur; Judge RABIN taking no part.

*745MEMORANDUM.

We agree with the Appellate Division that plaintiff is limited to his statutory remedy. The Hicksville Fire District can be considered a person or agency within the intendment of subdivision (3) of section 19 of the Volunteer Firemen's Benefit Law. We do not find, however, as that court did, any inconsistency in this result with that reached by the Appellate Division, Third Department, in Giuliano v. Town of Brunswick (32 A D 2d 705) where it was held that the injured fireman, employed by the Town of North Greenbush Fire District, could maintain an action against the Town of Brunswick. There, that section (Volunteer Firemen's Benefit Law, § 19, subd. [3]) did not stand in plaintiff's way because the defendant town (as opposed to the defendant fire district in the instant case) could in no respect be considered a "person or agency". We would also remark that in Holland v. Baker (61 Misc 2d 201, affd. 33 A D 2d 626), where the plaintiff attempted to sue the political subdivision which his fire company served, the action was correctly *746 dismissed although the court mistakenly relied on subdivision (3) of section 19 rather than on subdivision (2).

Order affirmed, with costs, in memorandum.