By Nicole Bode
DNAinfo Associate Editor
MANHATTAN— An NYPD officer shot in the leg by a fellow officer while standing in the locker room at the Lower East Side's 7th precinct has been cleared by an appeals court to continue his case against the city.
In a decision that could open the door to future lawsuits by on-duty police officers and firefighters, the Appellate Division, First Department ruled last week that an officer shot while getting ready in a police locker room should not be subject to the same rules against lawsuits that currently govern on-duty emergency workers.
The court ruled Police Officer Vincenzo Ferriolo has the right to sue the city and his fellow officer Kien Gian for negligence because he was not “engaged in any specific duty that increased the risk that he would be shot.”
Ferriolo was getting ready for his tour of duty around 11:15 p.m. Aug. 12, 2003 when fellow officer Kien Gian came in to change into his uniform, according to legal papers. Gian was holding his 9 mm semi-automatic gun when it accidentally went off, shattering Ferriolo’s left femur bone, legal papers said.
Ferriolo, 32, told the court that Gian, "called out my name, and he had the gun pointing at me, and a round went off."
Ferriolo, who lives in Suffolk County, had to have a metal rod surgically implanted in his leg and retired from the force on accidental disability, his lawyer said.
"He’s a relatively young guy, and he’s going to walk with a limp for the rest of his life," lawyer Joseph Decolator, of the firm Decolator, Cohen & DiPrisco, told DNAinfo.
Ferriolo sued the city and office Gian for common-law negligence. The city had argued they were shielded from that kind of liability by the “firefighter’s rule,” which raises the threshold for policemen and firefighters from suing for damages if they get injured in the line of duty.
"In this case the court said it didn’t apply, he was just putting his pants on and was talking to his partner when this knucklehead shot him," Decolator said.
"He wasn’t really doing any police duty when he was shot. It’s a good decision the court made. It takes the 'firefighter's rule' out of the locker room, it allows officers to sue for routine injuries that occur while preparing for duty."
The city’s Law Department said they would fight the decision.
"We believe this decision is inconsistent with case law, and plan to submit a request for an appeal to the Court of Appeals," said Barry Schwartz, senior counsel for the city's Law Dept.