Foleyv.Masiello

Appellate Division of the Supreme Court of New York, Fourth DepartmentJun 6, 2008
52 A.D.3d 1225 (N.Y. App. Div. 2008)
52 A.D.3d 1225860 N.Y.S.2d 3452008 N.Y. Slip Op. 5145

No. CA 07-02505.

June 6, 2008.

Appeal and cross appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered February 6, 2007. The order granted plaintiff's motion for partial summary judgment and denied defendants' cross motion for summary judgment dismissing the complaint.

HODGSON RUSS LLP, BUFFALO (JOSHUA FEINSTEIN OF COUNSEL), FOR DEFENDANTS-APPELLANTS-RESPONDENTS.

THE MATTACOLA LAW FIRM, ROME (GREGORY A. MATTACOLA OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.

Present: Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.


It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, the cross motion is granted and the complaint is dismissed.

Memorandum: Plaintiff, individually and as president of the Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC (Union), and on behalf of all other individuals providing fire protection to defendant City of Buffalo (City), commenced this action seeking tax revenues (two percent funds) paid to the City and allegedly owed to the Union pursuant to Insurance Law §§ 9104 and 9105. Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability and instead should have granted defendants' cross motion seeking summary judgment dismissing the complaint. We agree with defendants that, pursuant to those sections of the Insurance Law, the two percent funds are to be paid, inter alia, to the fiscal officer of the fire department of the municipality or the fiscal officer of the municipality, and "the Union has no right to receive a portion of the funds directly from the State" ( Watt v Richardson, 6 AD3d 1117, 1118, lv denied in part and dismissed in part 3 NY3d 735). Defendants therefore established as a matter of law that plaintiff was not entitled to the sole relief sought in the complaint, and plaintiff failed to raise a triable issue of fact in response ( see generally Zuckerman v City of New York, 49 NY2d 557, 562). In light of our determination, we do not address the parties' remaining contentions.