Opinion
January 4, 1990
Appeal from the Court of Claims of the State of New York (Gerard M. Weisberg, J.).
This claim arises from a February 14, 1984 shooting in which Police Officer Thomas Ruotolo was fatally wounded, and claimants, Officer Hippolito Padilla and Officer Tanya Brathwaite, were injured while investigating an armed robbery. Claimants maintain that the New York State Board of Parole was negligent in not having filed a detention warrant for parole violation (Executive Law § 259-i [a] [i]; 9 NYCRR 8004.2 [d] [2]) against the gunman, George Agosto, based upon two felony arrests.
It is a long-standing common-law rule that police officers cannot recover against those whose negligence occasioned a service-related injury. Sound public policy militates against recovery by police for injuries occasioned by the hazardous duties for which they have been trained and are compensated by the public. (Santangelo v. State of New York, 127 A.D.2d 647, 648 [2d Dept 1987], affd 71 N.Y.2d 393, 397-398.)
Moreover, public entities are immune from liability in common-law negligence arising out of the performance of governmental functions unless (1) the injured party can establish a special relationship with the entity, which created a special duty to protect that individual, and (2) the party relied on the performance of that duty. (Miller v. State of New York, 62 N.Y.2d 506, 510; Tarter v. State of New York, 68 N.Y.2d 511, 519.) Because neither Executive Law § 259-i nor 9 NYCRR 8004.2 creates such a special duty or private cause of action in favor of these claimants, the claims were properly dismissed.
Finally, claimants maintain that newly enacted General Municipal Law § 205-e (L 1989, ch 346), modeled after section 205-a relating to firefighters, creates a cause of action against the State. That section grants police officers or their representatives a civil cause of action to recover damages for line-of-duty injuries resulting from a person's failure to comply with a statute, order, ordinance or rule. Since section 205-e, effective July 12, 1989, may not be retroactively applied (Murphy v. Board of Educ., 104 A.D.2d 796 [2d Dept 1984], affd 64 N.Y.2d 856), we need not reach the question of that statute's applicability in this case.
Concur — Ross, J.P., Carro, Asch, Kassal and Smith, JJ.