Mosomillo v City of New York

[*1] Mosomillo v City of New York 2005 NY Slip Op 51546(U) [9 Misc 3d 1114(A)] Decided on September 13, 2005 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2005
Supreme Court, Kings County

Margaret Mosomillo, Individually and as Administratrix of the Estate of Anthony Mosomillo, Deceased, Plaintiff,

against

City of New York, Defendant.



In the Matter of the Claim of Lisa Arciero, As Mother and Natural Guardian of Infant Marie Mosomillo, daughter of decedent Anthony Mosomillo, Plaintiff, against

against

City of New York et ano., Defendants.



41319/98

Mark I. Partnow, J.

Upon the foregoing papers, the motion by defendant City of New York (the City) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint herein is granted.

On May 26, 1998, Anthony Mosomillo, a police officer, was executing an arrest warrant when he was shot and killed by the suspect, Jose Serrano (Serrano). Anthony Mosomillo was survived by his wife, Margaret Mosomillo, and their daughter, Francesca Mosomillo and by his daughter, Marie Mosomillo, from a previous marriage to Lisa Arciero. On or about October 22, 1998, Margaret Mosomillo, individually and as administratrix of the estate of her late husband, commenced a wrongful death action premised upon the negligence of the City and General [*2]Municipal Law (GML) § 205-e. It appears that several months earlier, decedent's ex-wife, Lisa Arciero, commenced a wrongful death action against the City in her capacity as mother and natural guardian of Marie Mosomillo. Subsequently, the City moved to consolidate both actions for trial and Margaret Mosomillo cross-moved to dismiss the complaint of Lisa Arciero on the ground that the latter did not have the legal capacity to sue since Margaret Mosomillo had been appointed administratrix of decedent's estate. By order dated November 15, 2002, the motion was granted. The cross motion was denied, the court finding that "the infant plaintiff in Action No. 2 has a cognizant cause of action for . . . loss of nurture and guidance."

In its motion, the City points out that Anthony Mosomillo and his partner, Officer Miriam Torres (Torres), arrived at 534 East 34 Street in Brooklyn to execute an arrest warrant for Serrano because of his failure to appear in Criminal Court pursuant to a misdemeanor desk appearance ticket. After speaking to the landlady of the subject premises, the officers were advised that Serrano was in the basement apartment with a woman named Betsy Ramos (Ramos). According to the City, the officers spoke to Ramos who denied that Serrano was in the apartment, but consented to a search of the premises. The search was initially unsuccessful but, after a further conversation with the landlady regarding a possible hiding place in a closet, the officers returned to Ramos' apartment and searched again. After they discovered Serrano, a struggle ensued and Serrano shot Anthony Mosomillo with a gun removed from Torres' holster. The City argues that the complaint of Lisa Arciero must be dismissed because she "was not married to decedent on the date of the incident and . . . was never appointed Administratrix of the Mosomillo Estate." Whether or not the complaint is dismissed on that ground, the City contends that both plaintiffs are barred from pursuing a negligence claim against the City by the "firefighter's rule." Moreover, because plaintiffs lack sufficient statutory predicates for a claim based upon GML § 205-e, the City asserts that those claims must likewise be dismissed. Specifically, the City maintains that plaintiffs have only alleged that it violated some "internal procedures" and that "violations of internal rules or even New York City Police Department Patrol Guide regulations are not sufficient predicates to sustain a 205-e action."

In opposition to the motion, Margaret Mosomillo (Mosomillo) essentially concedes that the "firefighter's rule bars police and firefighters from recovering in negligence for line of duty injuries"; however, she characterizes GML § 205-e[FN1] as a "narrow passageway around the common law rule." Mosomillo argues that the City, through Officer Miriam Torres, violated the Fourth Amendment to the United States Constitution; that is, the provision which "prohibits police from making a warrantless and non-consensual entry into a suspect's home in order to make a routine felony arrest." According to Mosomillo, although the police officers had an arrest warrant, they did not have a search warrant. Since "there is no actual indication that Ms. Ramos consented to the search," her Fourth Amendment rights were violated and that violation constitutes a predicate for Mosomillo's GML § 205-e claim. She further asserts that proximate cause need not be established, only a reasonable connection between the violation and the police officer's injury or death. In this case, she adds, "had the Fourth Amendment not been violated, neither of the searches would have been performed."

In her opposition papers, Arciero contends that the City may not challenge her legal capacity to sue since the prior order herein, which denied Mosomillo's cross motion, was not appealed and constitutes "law of the case." In a footnote, Arciero adopts the arguments advanced by Mosomillo with respect to GML § 205-e in opposition to the [*3]City's motion.

In reply, the City faults plaintiffs for waiting seven years to present a statutory predicate as a basis for their GML § 205-e claims and then presenting "a new theory of liability [which] comes as a complete surprise to the City." The City further notes that plaintiffs have produced no evidence to controvert the testimony of Torres that Ramos consented to the search of her apartment. Moreover, the City asserts that plaintiffs cannot establish a reasonable connection between an alleged Fourth Amendment violation and decedent's death.

While a police officer can assert a common-law tort claim against the general public, liability against a fellow officer or employer can only be based on the statutory right of action in GML § 205-e (see Williams v City of New York, 2 NY3d 352 [2004]). Therefore, to the extent that the complaints herein plead negligence causes of action against the City, such claims are dismissed.

To make out a claim under GML § 205-e, a plaintiff must identify the statute or ordinance with which the defendant failed to comply, describe the manner in which the police officer was injured or killed and set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm (see Giuffrida v Citibank Corp., 100 NY2d 72, 79 [2003]). In this case, plaintiffs' failure to satisfy the pleading requirements in either the complaints or the bill of particulars renders the cause of action legally insufficient (see Mackay v Misrok, 215 AD2d 734 [1995]).

Assuming that plaintiffs had served supplemental bills of particulars which referred to an alleged federal constitutional violation or sought leave to amend their complaints accordingly, summary judgment would still be warranted. To establish a prima facie case under GML § 205-e, a plaintiff, in addition to demonstrating a violation of a relevant statute, ordinance or regulation, must also establish a practical or reasonable connection between the violation and the injury or death of the police officer (see Abbadessa v City of New York, 269 AD2d 341 [2000]). Here, the facts alleged by plaintiffs are insufficient to establish the requisite causal connection between the alleged constitutional violation and the injuries sustained. The fatal injury to Anthony Mosomillo did not result from the violation, if any, of Ramos' constitutional right to be free from an unreasonable search but, rather, from the criminal act of Serrano in shooting decedent (see Kenavan v City of New York, 267 AD2d

353 [1999], Iv denied 95 NY2d 756 [2000]). Therefore, plaintiffs' remaining claims, which are premised upon GML § 205-e, are dismissed.

The foregoing constitutes the decision, order and judgment of this court.

Dated: September 13, 2005

ENTER, J. S. C.

Footnotes

Footnote 1: The provision is mistakenly referred to by Mosomillo as GML § 205 [a]. GML § 205-e provides a right of action to injured police officers or their estate representatives where the injury or death results from the failure of any person "to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus" (GML § 205-e [a]).