This is a subrogation action in which the plaintiff seeks reimbursement for payment to its insured for damages for which the plaintiff alleges the defendant is liable. By notice of motion dated March 29, 2024, defendant moves for summary judgment dismissing the complaint (motion sequence #1). By notice of cross-motion dated May 22, 204, the plaintiff cross-moves for summary judgment on its complaint (motion sequence #2). The following papers were read and considered in determining the motions: NYSCEF document numbers 15-29 and 32-39. DECISION AND ORDER Background The following facts are undisputed unless otherwise noted: On June 10, 2021, the defendant, City of Poughkeepsie, requested mutual aid from the New Hamburg Fire Department for a fire located at 5 Parker Avenue in the City of Poughkeepsie. The New Hamburg Fire Department responded to the scene with 4 firefighters and a single fire truck. The New Hamburg fire truck was driven by Brian Smith. After New Hamburg’s assistance was no longer needed at the site, Mr. Smith, while backing up the fire truck to leave the scene, ran the truck into a telephone pole as he lost sight of his spotter (another New Hamburg firefighter). The truck was damaged. New Hamburg’s insurer, National Union Fire Insurance Company of Pittsburgh, alleges that it paid for the damage to the fire truck and thereafter submitted a notice of claim to the City of Poughkeepsie for payment for the damage in the amount of $85,307.25. The City of Poughkeepsie, through its insurer, denied the claim. This action followed. In this action, plaintiff asserts that the defendant breached General Municipal Law §209(2) by failing to pay for the damages to the fire truck. That section reads, in relevant part: “Any loss or damage to, or expense incurred in the operation of, fire apparatus or other equipment answering a call for assistance from outside territory, as provided for in subdivision one of this section or otherwise, and the cost of any materials used in connection with such call, shall be a charge against and paid by the city…which issued the call for assistance.” Defendant argues in its instant motion that it has no obligation to pay for the damage to the fire truck because the damage was caused solely by Mr. Smith’s negligence in backing up the truck into the utility pole. It cites General Municipal Law §209(1) in support of its position. That section reads, in relevant part: “The fire department of any city, village or fire district…may answer calls for assistance outside the area regularly served and protected by such fire department or fire companies…While responding to a call for assistance under this subdivision a city, village, fire district, ambulance district, town or county or public authority operating an airport crash-fire-rescue unit shall be liable for the negligence of firefighters of the city fire department, village fire department, fire district fire department, town fire department, ambulance district or crash-fire-rescue unit, respectively, occurring in the performance of their duties in the same manner and to the same extent as if such negligence occurred in the performance of their duties within the area regularly served and protected by such departments, districts or units.” Defendant also cites section “13″ of the Mutual Aid Agreement to which both parties are subject. That section reads, in full: “Insurance It shall be the responsibility of any participating agency responding outside of their primary response area to maintain appropriate insurance coverage as required by law. Each agency should insure their personnel and vehicle(s) regardless of their location, or location of the call. Hold Harmless New York State General Municipal Law 209 entitled Outside Service by local fire departments, companies, ambulance districts, airport crash-fire-rescue units, states the following: A. Members of participating agencies have the same immunities and privileges on a mutual aid call that they have on a call within their own jurisdiction. B. Participating agencies are liable for the negligence of their personnel on a mutual aid call. C. Participating agencies may make a claim to the agency that requested the call for assistance ‘for any loss or damage to, or expense incurred in the operation of fire apparatus or other equipment answering a call for assistance and the cost of any materials used in connection with such call, shall be a charge against and paid by the agency….. which issued the call for assistance’.” In sum and substance, defendant argues that subsection “B” of the Mutual Aid Agreement, as well as General Municipal Law §209(1), make the plaintiff responsible for the damage to its own truck because that damage was caused by Mr. Smith’s own negligence. In sum and substance, plaintiff argues that subsection “C” of the Mutual Agreement, as well as General Municipal Law §209(2), require the defendant to pay for the damage to the truck because each section requires the agency who requested the mutual aid to pay for “any” loss or damage to the fire apparatus or other equipment answering a call regardless of its cause. Plaintiff argues that subsection “B” of the Mutual Aid Agreement and General Municipal Law §209(1) pertain only to liability for negligence with respect to third parties. Both parties rely on the plain language of the statute, each claiming that the respective subsection they rely on is clear, unambiguous and plainly supports their respective position. Discussion Both parties agree that disposition of their respective motions (and, therefore, this action) rests on statutory construction of General Municipal Law (“GML”) §209. And while they both insist that the statute is clear and unambiguous, they disagree as to that clarity, each claiming that two separate subsections of the statute are clear and unambiguous in their respective favors. It is well-settled that all parts of a statute must be read together and are to be “harmonized with each other, as well as with the general intent of the statute” (Rangolan v. County of Nassau, 96 NY2d 42, 48 [2001]). It is impermissible to construe one section of a statute in a manner that would nullify or render meaningless another section of the statute (id.). Here, the two sections of the statute relied upon by the parties must be construed as asserted by the plaintiff. To find otherwise would render meaningless the language of subsection 2, would ignore the intent of the Legislature in enacting the statute and would require a strained interpretation of subsection 1. Subsection 2 of GML §209 provides that “[a]ny loss or damage to…fire apparatus or other equipment answering a call for assistance from outside territory…shall be a charge against and paid by the city…which issued the call for assistance.” [Emphasis added.] This language is plain, broad and mandatory. Contrary to defendant’s contention, there is no indication in the language of this section that its application is limited in temporal scope. That is, it is not limited to instances in which damage to equipment occurs while the responding fire company is actively involved in fighting a fire. Therefore, the fact that the New Hamburg firefighters were “released” from the scene before the truck was damaged is irrelevant. Nor is there any language in subsection 2 which makes the responsibility to pay for “any loss or damage” dependent upon how the loss happened or who was responsible for the loss. Therefore, the fact that the loss happened as a result of a New Hamburg firefighter’s backing the truck into a tree is also irrelevant. Additionally, the parties do not dispute that the intent of the Legislature in enacting GML §209 was to encourage neighboring communities to answer calls for help in fighting fires. Limiting subsection 2 of the statute in the manner proposed by the defendant would undermine this intent as it could make responding agencies hesitant to provide aid if they had doubts about whether the cost of damage to their equipment would be covered by the municipality requesting help. Defendant’s sole argument regarding Legislative intent is that it should not be considered when a statute is clear and unambiguous. Here, however, while the individual sections of the statute might be clear standing alone, there is at least some ambiguity when reading subsections 1 and 2 together. This is evident from the very fact that the parties offer differing and arguably reasonable interpretations of the two subsections when read together (see, generally, Fleischman v. Transamerica Corp., 151 AD3d 937 [2d Dept 2017]; Fernandez v. Price, 63 AD3d 672, 675 [2d Dept 2009]). Therefore, it is appropriate to consider the Legislative intent as discussed above. Further, reading subsections 1 and 2 in the manner proffered by the defendant requires a strained reading of subsection 1. In particular, it requires a strained reading of what it means to be “liable for the negligence of” one’s own personnel. Liability for negligence is a concept that is regarded in the context of relationships between differing parties because “negligence is not a thing, but a relation. It cannot exist in a vacuum” (New York Pattern Jury Instructions, Third Edition, 2023 §2:10 (citing, inter alia, Levine v. New York, 309 NY 99 [1955]). “Absent a duty of care to the person injured, a party cannot be held liable in negligence” (Balsam v. Delma Engineering Corp., 139 AD2d 292 [1st Dept 1988] (citing Palsgraf v. Long Island R.R. Co., 248 N 339)). In other words, in considering the concept of liability for negligence, one does not owe a duty of care to himself. Therefore, one cannot be held liable to himself for negligence. Reading subsection 1 of GML §209 in the manner proffered by the defendant requires the Court to ignore this concept and find that subsection 1 regards the plaintiff as liable to itself because of its own personnel’s negligence. The only logical way to interpret subsection 1 of the statute is to find that its provision regarding liability for negligence pertains to negligence with regard to third parties. The defendant here does not allege that the plaintiff owed it a duty of care with respect to the damage done to the plaintiff’s own truck. Therefore, subsection 1 of GML §209 has no applicability to the facts here. Interpreting subsections 1 and 2 of GML §209 in this manner harmonizes the two sections and gives meaning to each of them, and to the statute as a whole. If the Court were to read the sections in the manner proffered by the defendant, it would, at the very least, render subsection 2 meaningless and disregard the Legislative intent. The Court has considered the other arguments proffered by the defendant and finds them to be without merit. It is noted that plaintiff’s cross-motion seeks summary judgment on the issue of liability, and that plaintiff does not otherwise offer any evidence to support the amount of damages it incurred. Based on the foregoing, it is hereby ORDERED that the defendant’s motion for summary judgment (sequence #1) is DENIED; and it is further ORDERED that the plaintiff’s cross-motion for summary judgment as to the issue of defendant’s liability (sequence #2) is GRANTED; and it is further ORDERED that a trial on the issue of damages will be scheduled at the upcoming conference to be held on September 3, 2024 at 9:30 a.m. The foregoing constitutes the decision and order of this court. Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof. Dated: August 9, 2024
