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The families of three New York City police officers killed in the line of duty may not recover against the municipality under a provision creating a right of action when a law enforcement officer is injured due to a defendant’s violation of a rule or law, the Court of Appeals held Tuesday. But in upholding a mid-level court and dismissing the survivors’ claims, the Court of Appeals made new law. It said for the first time that liability under General Municipal Law � 205-e can be predicated on a violation of the penal law — even if there was no conviction. Still, in opening a new avenue for plaintiffs, the court in a ruling by Judge Susan Phillips Read, also erected numerous hurdles that will make it difficult for plaintiffs to prevail. The cases were McCormick v. City, 56, and Williams v. City, 13. The police cases were based on claims that officers died because the city violated a rule, requirement, statute or order — a cause of action recognized under � 205-e. Section 205-e was enacted by the Legislature in 1989. That was a year after the Court of Appeals said in Santangelo v. State, 71 NY2d 393, that common law generally bars tort recovery by a police officer injured in the line of duty. Sergeant John F. McCormick was killed on April 27, 1988, when a bullet fired by one of his colleagues passed through a door and struck the sergeant. His wife, Elizabeth, sued under � 205-e, based on the theory that the officer’s partners violated the Penal Law in their use of physical force. Supreme Court dismissed the action, and the Appellate Division, 1st Department, affirmed. The 1st Department held that a � 205-e claim cannot stand on the mere allegation of unlawful activity where, as here, none of the other officers was ever convicted of a crime. On appeal, the plaintiff argued that the ruling contradicted the intent of the statute and decisions from the 2nd and 4th departments. Williams involved two detectives, Keith Williams and Richard Guerzon, who were killed by a homicide defendant they were transporting to Rikers Island. Records show that Jay “Stoney” Harrison had been brought to the Queens District Attorney’s Office, where he was handcuffed to a steel pipe but left alone in a locker room. Harrison stole a revolver from a detective’s locker and on the way back to Rikers Island shot and killed the detectives on the Grand Central Parkway. The officers’ survivors sued under � 205-e, citing as the predicate for General Municipal Law liability a Labor Law provision addressing dangerous conditions in the workplace. A jury awarded $5.6 million to the Williams family and $8.9 million to the Guerzon family. But the 2nd Department reversed in a 3-2 opinion. It said the incident had nothing to do with any physical hazard within the locker room. The dissenting judges argued that a routine practice of leaving unguarded prisoners in a room containing firearms was inherently hazardous within the confines of Labor Law � 27-a. HIGH BURDEN SET Tuesday, the Court of Appeals ruled for the city in both matters in a unanimous opinion by Judge Read. In the death of Officer McCormick from a shot fired by another officer, the court established that a penal law violation is a proper predicate for � 205-e liability, but that plaintiffs must overcome an extremely high burden in matters where there was no conviction. Here, the plaintiff could not come close to meeting that burden, the court said. Read said a penal law predicate, where there is no conviction, not only requires the plaintiff to prove criminal conduct beyond a reasonable doubt, but to overcome a rebuttable presumption that there was no penal law violation. Additionally, she said, the same defenses that would be available to a criminal defendant in such a case — including the defense of justification — are available to the civil defendant. The court said there was nowhere nearly enough evidence that the officers involved in McCormick engaged in criminal conduct. The case of the slain detectives centered on the Public Employee Safety and Health Act (Labor Law � 27-a), which was enacted to provide public employees with at least as many workplace protections as provided private employees under federal law. The court left open the question of whether � 27-a applies in general to police officers but left no doubt that a “general duty” clause does not cover the “special risks faced by police officers.” Read said it is “highly unlikely” that the Legislature intended that labor inspectors would “second guess the decisions of police supervisors” on matters directly involving police procedure. “[T]he ‘occupational’ injury the officers sustained here was death at the hands of a prisoner,” Read wrote. “Important as it is to prevent such tragedies, we rely on the judgment of those supervising the police department to do so — not on regulation and oversight by the Commissioner of Labor.” Assistant Corporation Counsels Julie Steiner and Barry P. Schwartz defended the city in McCormick and Williams, respectively. Susan J. Levy of Levy and Levy in Manhattan appeared for the plaintiff in McCormick. Richard A. Dienst of Manhattan argued for the officers’ families in Williams. Also Tuesday, the court decided two other cases of particular importance in New York City:

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