Plunkett v. Emergency Medical Services Corp. , 687 N.Y.S.2d 375 ( 1999 )

—Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 9, 1998, which, upon the grant of reargument, denied plaintiffs’ motion for leave to amend their complaint nunc pro tunc to assert a cause of action pursuant to General Obligations Law § 11-106, unanimously affirmed, without costs.

While plaintiffs are not collaterally estopped from litigating a General Obligations Law § 11-106 negligence claim against defendants, the issue of defendants’ negligence not having been fully litigated by plaintiffs at the 1994 trial of their General Municipal Law § 205-e cause of action, leave to amend the complaint to assert a General Obligations Law § 11-106 negligence claim against defendants was nonetheless properly denied. As of October 9, 1996, the effective date of General Obligations Law § 11-106, which amended General Municipal Law § 205-e to permit police officers and firefighters to recover for line-of-duty injuries on a negligence theory, defendant Emergency Medical Services was an agency of plaintiff’s employer, the City of New York — EMS and the agency with which plaintiffs were employed having merged with City agencies respectively on March 17, 1996 and April 30, 1995 — and General Obligations Law § 11-106, although creating a negligence cause of action in favor of certain municipal employees for line-of-duty injuries, specifically precludes the assertion of such a cause against the employees’ municipal employer and fellow municipal employees (General Obligations Law § 11-106 [2]; General Municipal Law § 205-e [1]). Concur— Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.