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138710
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09/08/2023
STATE OF NEW YORK COURT OF CLAIMS
DAVID M. MORSE, as Administrator of
the Estate of PEYTON L.S. MORSE,
Deceased, and DAVID M. MORSE and
STACY SNYDER-MORSE, Individually,
Claimants, DECISION AND
ORDER
-v-
THE STATE OF NEW YORK, Claim No. 138710
Motion No. M-99164

Defendant.

BEFORE: HON. CATHERINE C. SCHAEWE

Judge of the Court of Claims

APPEARANCES: For Claimants:

O’CONNELL AND ARONOWITZ, P.C.
BY: Thomas J. DiNovo, Esq., of counsel

For Defendant:
HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Mark Sweeney, Assistant Attorney General

Claimant David M. Morse as Administrator of the Estate of his son Peyton L.S. Morse

(Decedent) and claimant Stacy Snyder-Morse (hereinafter collectively referred to as claimants)

filed this claim to recover for personal injuries and wrongful death of Decedent while he was a

recruit firefighter for the City of Watertown and attending training at the State Academy of Fire

Sciences (the Academy). In lieu of answering, defendant State of New York (defendant) now

moves to dismiss, arguing that this claim is barred by the exclusive remedy of the Workers’

Compensation Law and/or governmental immunity. Claimants oppose the motion.

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Claim No. 138710, Motion No. M-99164 Page 2

On a motion to dismiss the claim for failure to state a cause of action pursuant to

CPLR 3211 (a) (7), the Court must “accept the facts as alleged in the [claim] as true, accord

[claimants] the benefit of every possible favorable inference, and determine only whether the

facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88

[1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). “In assessing

a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by

the [claimants] to remedy any defects in the complaint . . . and the criterion is whether the

proponent[s] of the pleading [have] a cause of action, not whether [they have] stated one” (Leon,

84 NY2d at 88 [internal quotation marks omitted]).

In their claim, claimants allege that through its Division of Homeland Security and Office

of Fire Prevention and Control (OFPC), defendant provides instruction and training to

individuals who have sought to become firefighters (recruits). The instruction and training of the

recruits takes place at the Academy which is owned, operated, maintained, and controlled by

defendant and located in Montour Falls. Decedent arrived at the Academy in February 2021. On

the afternoon of March 3, 2021, the recruits were participating in training exercises (also referred

to as evolutions), one of which required Decedent to crawl through a wooden box (the Box) that

was designed to represent a confined space. During the course of this evolution, Decedent

allegedly complained of shortness of breath. As he became unable to breathe, he expressed

distress to the instructors. Nevertheless, the instructors apparently ignored Decedent’s

complaints and directed him to continue with the exercise without assessing his condition or

assisting him in any manner.

Claimants assert that the instructors failed to provide proper instruction, safe training,

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Claim No. 138710, Motion No. M-99164 Page 3

supervision, observation, assessment, and monitoring to Decedent. Claimants further allege that

Decedent’s pleas for help and to exit the Box were denied and as a result, he suffered severe

respiratory distress which in turn resulted in a cardiac event. Claimants also state that defendant

failed to have personnel present who were trained in emergency life saving measures and did not

have an Automated External Defibrillator (AED) available. Claimants indicate that due to

defendant’s negligence, Decedent experienced excruciating pain and suffering, fear, difficulty

breathing, respiratory distress, anoxia, inpatient hospitalization, and ultimately death. Claimants

assert causes of action for conscious pain and suffering and wrongful death.

Matthew Timerman, Fire Chief for the City of Watertown Fire Department (the Fire

Department), provides an affidavit in opposition to this motion. Timerman states that Decedent

received a score of 100 on the civil service exam for the firefighter position and in December

2020, he was offered employment as a paid career firefighter for the Fire Department. Timerman

asserts that at the same time, Matthew Fitzgerald was also hired as a paid career firefighter for

the Fire Department. Both Decedent and Fitzgerald were hired on a full-time basis and began

their employment on February 1, 2021. During their first two weeks, Decedent and Fitzgerald

received identification cards and human resource training, and learned about the Fire

Department’s organizational structure and standard operating procedure. They also received

uniforms, gear, and lockers as well as training on their gear and self-contained breathing

apparatus (SCBA). They were further assigned to companies within the Fire Department to work

on incidents with experienced firefighters.

Decedent and Fitzgerald were enrolled in the Academy which began on February 13,

2021 and which would provide instruction and training for their positions. Timerman indicates

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that this training is not offered exclusively by the State or solely at the Academy as several

departments provide their own training.1 Timerman notes that both Onondaga and Jefferson

Community Colleges offer instruction and national certification by the International Fire Service

Accreditation Congress. This certification is accepted by the State pursuant to reciprocity

agreements. Timerman states that defendant charges a fee for each recruit attending the training

and that the City of Watertown budgeted the necessary funds for Decedent and Fitzgerald to

attend.2

Timerman notes that Decedent attended the Acadamy as a full-time paid career firefighter

for the City of Watertown and used gear, including the SCBA, provided by the City. He explains

that the SCBA has two alarms on it, a Personal Alert Safety System (PASS) and an End of

Service Time Indicator (EOSTI). The PASS alarm, which is both audio and visual, will issue a

pre-alarm warning when the firefighter has not moved for 20 seconds. This warning can be reset

by the firefighter, either by moving or shaking the device. If there is no motion for 30 seconds,

the alarm is much louder and must be reset by using a reset button. The EOSTI alarm is

activated when the firefighter has consumed 2/3 of the air in the supply tank. The purpose is to

notify the firefighter that they are using their reserve supply and “should take immediate action to

remove themselves from what is considered to be an immediately dangerous to life and health

1
In fact, the City of Watertown had previously conducted its own training. However, several of the employees
who were involved with the training had recently retired. Timerman also determined that it would not be cost-effective
to run the training for just two new employees.
2
Apparently, the City was not actually billed for either recruit to attend the Academy. Timerman indicates
that an invoice is normally sent halfway through the 11-week training course. He opines that because Decedent died
three weeks into his training and Fitzgerald was then removed from the program as a result of the incident, the City never
received invoices or was otherwise requested to pay the fees.

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(IDLH) environment.”3 Although Timerman admits he was not present during Decedent’s

incident, several sources have told him that both of Decedent’s PASS and EOSTI alarms had

been activated.

Matthew Roy has submitted an affidavit in opposition to this motion. Roy is the Human

Resource Manager for the City of Watertown. Roy states that on December 28, 2020, Decedent

was offered full-time employment as a City of Watertown firefighter, completed all conditions to

employment and became a permanent employee on February 1, 2021. Roy indicates that after

Decedent went to the Academy for training, he continued to receive his salary from the City and

was entitled to all fringe benefits such as health, dental, and vision insurance as well as coverage

by the City’s workers’ compensation insurance. Roy notes that as a result of Decedent’s injuries,

the City (the self-insured workers’ compensation carrier) paid all of the expenses for his medical

care and treatment, as well as funeral and other related expenses.4 The payments were made as

workers’ compensation benefits based upon Decedent’s full-time employment status with the

City. Roy specifically states that claimants did not receive any benefits pursuant to the State

Volunteer Firefighters’ Benefit Law due to Decedent’s death.

Matthew Cangelosi, a firefighter with the City of Oneida, states that he also went to class

at the Academy beginning February 13, 2021 and was a roommate of Decedent. Cangelosi

indicates that the recruits were separated into two different battalions which each had six

companies consisting of approximately four recruits in each. Decedent was assigned to

3
Affidavit of Matthew Timerman, sworn to Apr. 17, 2023, in Opposition to Motion, ¶ 34 (internal quotation
marks omitted).
4
As a result of Decedent’s death, claimants received a Workers’ Compensation award totaling $62,125.

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Company 7 while Cangelosi was assigned to Company 10. Cangelosi asserts that during the first

two weeks, the recruits received mostly classroom instruction. However, he notes that Week 3

was referred to by both instructors and recruits as “Hell Week” and was to be a heavy exertion

training week. Cangelosi states that before Week 3 began, one of the instructors (Herbert) said

that the Academy “had not ‘lost anyone yet,’ and that there were no ‘bodies in the maze.’ ”5

Cangelosi indicates that the training during Week 3 took place in a large two-story

building. The first floor was a gymnasium measuring approximately 40 feet by 40 feet.

Cangelosi notes that on March 3, 2021 (during Hell Week), one of the training exercises required

a recruit to crawl through the Box which was designed to represent a confined space where the

recruits would have to navigate around obstacles while wearing their SCBA, helmet, jacket,

pants, boots, gloves, and full-face gear (in other words, while dressed in full gear). Cangelosi

asserts that some time after he finished his exercise, he heard a PASS alarm. Cangelosi indicates

that he thought the situation was unusual because the alarm was active for a minute or two which

indicated that the recruit was not moving for most of that time.

Cangelosi asserts that he surmised that a recruit was struggling in the Box and as he

started to walk in that direction, he realized that the recruit was Decedent who was half out of the

Box and not moving. Cangelosi states that one of the instructors was nudging Decedent with his

foot, essentially telling him to keep moving because he was burning up in the fire. Cangelosi

notes that when the instructors pulled Decedent out of the box and removed his mask, his face

was purple and Cangelosi knew that he was in serious medical trouble. Cangelosi indicates that

5
Affidavit of Matthew Cangelosi, sworn to Apr. 19, 2023, in Opposition to Motion, ¶ 11.

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at that time, the instructors directed the recruits to immediately leave the gym and await further

instructions. Cangelosi recounted that while there was an Emergency Medical Technician

(EMT) in the gym during the exercise, she only had a small bag which included bandages and

ice packs. He noticed that one of the instructors ran from the gym to another building in order to

retrieve an AED.

Cangelosi asserts that the recruits were brought to a large room after Decedent’s injury

and addressed by the Academy Director. Cangelosi notes that several recruits who were

paramedics (and had received more medical training than the EMTs) questioned why there was

not a full-time medical staff person at the Academy (particularly during Hell Week) and why

there was not an ambulance present on site. The Director stated that the budget did not allow for

either of those things to be provided. The question was also posed as to why the paramedics in

the class were not asked to assist with Decedent’s medical care, but Cangelosi states that no

satisfactory answer was given.

Tess Lauper states that she was hired as a firefighter by the City of Ithaca, and began her

training at the Academy on February 13, 2021. Lauper indicates that the City of Ithaca paid for

her to attend the Academy and she received her salary and fringe benefits while attending the

training. She further notes that she was assigned to Decedent’s company and on the day of

Decedent’s incident, she had been assigned as a photographer to photograph recruits as well as

document the instruction and training processes. Lauper also avers that different instructors were

brought in just for Hell Week instruction. Lauper asserts that the morning of Decedent’s

incident, the company did ladder work and navigation through tubes and then they had lunch.

After lunch, they began exercises which included going through the Box. Lauper explained that

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the Box was designed to represent a confined space and required that the recruits navigate around

obstructions within it while wearing full gear and using their SCBA. Additionally, their face

masks were covered to simulate real-life conditions. Lauper went through the Box first, then two

other recruits completed the exercise before Decedent. Lauper states that as Decedent was going

through the Box, she recalled that it seemed to be taking him longer than it should. She estimates

10 minutes elapsed as opposed to 2 to 5 minutes for the other recruits to complete the exercise.

She indicates that instructors opened the flap of the Box to watch and try to coach Decedent, but

then they started to scream at him. At that point, Lauper retrieved her camera and was 10-15 feet

from the Box. She heard Decedent state that he could not breathe and an instructor responded

that if he could “talk [he could] breathe.”6 In Lauper’s opinion, the instructors did not appear to

take Decedent’s complaints of being unable to breathe seriously and forced him to continue with

the exercise.

Lauper states that as Decedent was near the last section of the Box, someone opened the

last flap on the top of the Box. The instructors were yelling for Decedent to keep going and not

quit as he was close to the exit. Lauper notes that Decedent was in the last section for a long

time and several minutes had elapsed from the time he said he couldn’t breath until she saw him

outside the Box. She indicates that Decedent was half inside and half outside of the Box and the

instructors were yelling at him to get up, but he was not moving. She asserts that at that time, she

knew something was wrong so she called for a medic. Lauper states that an instructor removed

Decedent’s mask and she saw that his face was blue and she believed that he had aspirated. She

6
Affidavit of Tess Lauper, sworn to Apr. 18, 2023, in Opposition to Motion, ¶ 28 (internal quotation marks
omitted).

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indicates that the scene turned to chaos and the instructors directed all recruits – even those that

were certified paramedics trained to provide advance life-support treatment – to immediately exit

the gym and wait for further instructions.

Lauper notes that while the recruits were waiting outside the gym, a paramedic teaching

at the Academy went to the gym to try to assist with Decedent. She then saw an instructor run to

the main Academy building to get keys for the van to transport Decedent to the hospital. She

asserts that at a meeting held later, several recruits inquired why the paramedics were not asked

to assist since it was obvious Decedent was in critical condition, but they never received a

satisfactory answer. She also indicates that she did not see an AED in the gym.

Defendant contends that because the Volunteer Firefighters’ Benefit Law is patterned

after the Workers’ Compensation Law, and OFPC is mandated by statute to plan, coordinate and

provide training for both volunteer and paid firefighters, this Court should draw an analogy to the

Court of Appeals’ holding in Lima v State of New York, 74 NY2d 694 (1989) and find that this

claim is barred by the exclusive remedy of Workers’ Compensation Law § 29. Defendant further

asserts that the employer/employee relationship is even stronger in this case as Decedent was

attending the training at the Academy, owned by the State.

Conversely, claimants assert that because Decedent was a paid firefighter, the Workers’

Compensation Law is applicable rather than the Volunteer Firefighters’ Benefit Law, and the

situation in Lima is not analogous to the circumstances in this case. Claimants further note that

the Volunteer Firefighters’ Benefit Law § 19 (3) specifically extends immunity from liability to

parties acting pursuant to governmental or statutory authority in the performance of their duties

which resulted in the injury. Claimants observe that such language is notably absent from the

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Workers’ Compensation Law.

As an initial matter, it is undisputed that Decedent was a full-time paid firefighter for the

City of Watertown, and on its face the Volunteer Firefighters’ Benefit Law does not apply.

Nonetheless, defendant’s contention is that it is analogous to the Workers’ Compensation Law

and the same exclusions to liability should apply. Volunteer Firefighters’ Benefit Law § 19

(emphasis supplied) provides in pertinent part that:

[t]he benefits provided by this chapter shall be the exclusive remedy of a

volunteer firefighter, or his or her spouse, parents, dependents, next of kin,
executor or administrator, or anyone otherwise entitled to recover damages, at
common law or otherwise, for or on account of an injury to a volunteer firefighter
in line of duty or death resulting from an injury to a volunteer firefighter in line of
duty, as against . . . any person or agency acting under governmental or
statutory authority in furtherance of the duties or activities in relation to
which any such injury resulted; provided, however, that the benefits provided
by this chapter shall not be the exclusive remedy as against persons who, in the
furtherance of the same duties or activities, are not similarly barred from recourse
against the volunteer firefighter, or his or her executor or administrator.

In Lima, a volunteer firefighter was injured while participating in a fire training program

sponsored by the State and supervised by a State instructor (74 NY2d at 695). As defendant

asserts, the Court of Appeals noted that the Volunteer Firefighters’ Benefit Law was patterned

after the Workers’ Compensation Law and “provide[d] a compensation system for volunteer

firefighters based on an employer/employee-type relationship” (id.).7 However, the Court found

that the claimants were barred from recovering against the State based upon the specific

exclusivity remedy set forth in Volunteer Firefighters’ Benefit Law § 19, i.e. that the State

through its instructor was “acting under governmental or statutory authority in furtherance of the

7
The Volunteer Firefighters’ Benefit Law was enacted in order to provide some type of compensation to
injured volunteer firefighters who were previously not entitled to any benefits when injured while engaged in volunteer
firefighting activities.

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duties or activities in relation to which . . . [the] injury resulted.” The Court held that “[t]he State

qualifie[d] for immunity under this analysis because it was carrying out its statutory duty to

‘[p]lan, coordinate and provide training’ for volunteer firefighters (Lima, 74 NY2d at 696,

quoting Executive Law § 156 [6]). Although the Court noted that the Volunteer Firefighters’

Benefit Law was patterned after the Workers’ Compensation Law, it did not imply in any manner

that the Workers’ Compensation Law had a similar exclusion from liability. Workers’

Compensation Law § 11 establishes that as long as an employer provides compensation as

required by Section 10, its liability to an injured employee is limited to payment of that

compensation. Further, Workers’ Compensation Law § 29 (6) extends this limitation to a fellow

employee, “the employer’s insurer or any collective bargaining agent of the employer’s

employees or any employee, of such insurer or such collective bargaining agent (while acting

within the scope of his or her employment).” There is no exemption from liability for one acting

under governmental or statutory authority who causes an injury during the course of executing its

duties related thereto. Moreover, Workers’ Compensation Law § 29 (1) envisions the precise

circumstance present in this case, that is where an employee is injured or dies during the scope of

employment due to the negligence of another party (not his or her employer). The statute

specifically provides that the employee (or in the case of death, his or her dependents) may take

the workers’ compensation benefits provided by the Workers’ Compensation Law and also

commence an action against the other (negligent, non-employer) party.

The Court finds the allegations asserted that Decedent was not an employee of defendant

support the inference that the exclusivity remedies of Workers’ Compensation Law §§ 10, 11 and

29 on their face are not applicable in this case. The Court further finds that the exclusivity

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remedies of Volunteer Firefighters’ Benefit Law § 19 are not analogous to the exclusivity

remedies provided by the Workers’ Compensation Law. Accordingly, defendant’s motion to

dismiss the claim based upon the Workers’ Compensation Law is denied.

Defendant also contends that because the OFPC is statutorily mandated to provide

training, operate the Academy, and certify firefighters, the State was performing a governmental

function and based upon the discretionary actions of its instructors, this claim is barred by the

doctrine of governmental immunity. Conversely, claimants argue that defendant was operating

the Academy in the same manner as a public or private school, which provides instruction for a

fee, and therefore was acting in a proprietary capacity.

“It has long been recognized that a ‘governmental entity’s conduct may fall along a

continuum of responsibility to individuals and society deriving from its governmental and

proprietary functions’ ” (Drever v State of New York, 134 AD3d 19, 21 [3d Dept 2015], quoting

Miller v State of New York, 62 NY2d 506, 511-512 [1984]). “At one end of the continuum lie

purely governmental functions undertaken for the protection and safety of the public pursuant to

the general police powers. . . . On the opposite periphery lie proprietary functions in which

governmental activities essentially substitute for or supplement traditionally private enterprises”

(Sebastian v State of New York, 93 NY2d 790, 793 [1999] [internal quotation marks, citations

and brackets omitted]). Purely governmental functions which include police and fire protection

as well as traffic regulation generally do not subject a municipal defendant to liability (Drever,

134 AD3d at 22). Proprietary functions such as the municipality acting as a landlord through its

ownership and maintenance of property “generally subject [defendant] to the same duty of care as

private individuals and institutions engaging in the same activities” (Sebastian, 93 NY2d at 793

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[internal quotation marks, citations and brackets omitted]; see also Miller, 62 NY2d at 511-512).

“In determining where along the continuum a governmental entity’s challenged conduct falls, it

is necessary to examine the specific act or omission out of which the injury is claimed to have

arisen and the capacity in which that act or failure to act occurred” (Drever, 134 AD3d at 22

[internal quotation marks omitted]; see also Sebastian, 93 NY2d at 793-794; Miller, 62 NY2d at

511-512; Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982]).

In this case, Decedent was attending a State-operated training course at a State-owned

facility. The State Fire Administrator has the statutory obligation to promulgate the rules and

regulations pertaining to the minimum basic training, certify the firefighters who have completed

such training and to operate the Academy (and thus to use his or her discretion). However, the

instructors are not so obligated. Moreover and as aptly noted by claimants, defendant operates

the Academy in a similar manner to a private institution, charging a fee for instructing recruits,

and according to its website it provides housing during the week when classes are taking place.

Notably, the Academy is also not the only institute a recruit can attend to obtain his or her basic

training in order to receive the State-mandated certification. The Court finds that claimants have

set forth sufficient allegations to support an inference that defendant was engaging in a

proprietary function (see Lemery v Village of Cambridge, 290 AD2d 765 [3d Dept 2002] [where

the Court held that operation of a police training school which charged a fee “for each enrollee’s

attendance and [the] plaintiff’s injury arose out of [the defendant’s] operation, management and

control of the police training school . . . [was]. . . a proprietary function subjecting [the

defendant] to the same duty of care as a private individual or institution engaged in the same

activity”]).

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“It is well settled that in order to set forth a prima facie case of negligence, the

[claimants] must demonstrate: (1) a duty owed by the defendant to the [Decedent]; (2) a breach

of that duty; and (3) an injury suffered by the [Decedent] which was proximately caused by the

breach” (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [1st Dept 2000]; see also

Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280

AD2d 797, 797 [3d Dept 2001]). “A teacher is under a duty to use reasonable care to prevent

injury to students. This responsibility includes the obligation not to direct a student to do that

which is unreasonably dangerous . . . and to provide such instruction and supervision as is

reasonably required to safely perform the directed tasks . . . . What is reasonable will, of course,

vary with, among other factors, the age and abilities of the student” (Yarborough v City Univ. of

N. Y., 137 Misc 2d 282, 285 [Ct Cl 1987] [citations omitted]; see Govel v Board of Educ. of City

of Albany, 267 App Div 621, 624 [3d Dept 1944], affd 293 NY 928 [1944]; Tabone v State of

New York, 116 Misc 2d 864, 868 [Ct Cl 1982]). Schools and universities are not insurers of the

safety of their students, and the fact that an accident occurs does not give rise to the inference of

negligence (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

Claimants have alleged that even though Decedent complained of not being able to

breathe and both his PASS and EOSTI alarms had been activated, defendant’s instructors did not

assist him. Instead, they merely encouraged – or perhaps bullied – him to continue with the

exercise. Once the instructors actually checked on Decedent and removed his mask they

discovered that his face was blue. Moreover, according to one of the affidavits submitted in

opposition to defendant’s motion, it was another recruit who called for a medic, rather than one

of the instructors. Clearly, claimants have set forth sufficient allegations that the instructors

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unreasonably directed Decedent to proceed with the exercise despite his expressed difficulty with

breathing and subsequent lack of movement and warning that his air supply was at a dangerous

level. Accordingly, the Court finds that claimants have sufficiently stated causes of action for

negligence and wrongful death.

In conclusion, defendant has failed to meet its burden of establishing that claimants

cannot proceed with this claim upon the affirmative defenses of either the exclusive remedy of

the Workers’ Compensation Law or governmental immunity. Accordingly, defendant’s

pre-answer motion to dismiss the claim is denied in its entirety.

Binghamton, New York

June 28, 2023

CATHERINE C. SCHAEWE
Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed March 2, 2023; Affirmation of Mark Sweeney, Assistant

Attorney General, dated March 2, 2023, and attached exhibits; Memorandum of Law
dated March 2, 2023; Memorandum of Law with corrections dated March 3, 2023.

2) Affirmation in Opposition of Thomas J. DiNovo, Esq., dated April 19, 2023, and
attached exhibit; Affidavit of Matthew Timerman, sworn to April 17, 2023, and attached
exhibits; Affidavit of Matthew Roy, sworn to April 5, 2023, and attached exhibit;
Affidavit of Tess Lauper, sworn to April 18, 2023; Affidavit of Matthew Cangelosi,
sworn to April 19, 2023; Memorandum of Law dated April 19, 2023.

Filed Papers: Claim filed January 24, 2023.

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