Harland Enterprises, Inc. v. Commander Oil Corp.

• Decision Date: 20 December 1984
• Citation: 475 N.E.2d 104,64 N.Y.2d 708,485 N.Y.S.2d 733
• Parties: , 475 N.E.2d 104 HARLAND ENTERPRISES, INC., Doing Business as Holland Associates, et al., Plaintiffs, v. COMMANDER OIL CORP., Appellant, Westbury Fire Department of the Westbury Fire District, Respondent, et al., Defendants. (And Three Other Actions.).
• Court: New York Court of Appeals Court of Appeals

Page 733

485 N.Y.S.2d 733

64 N.Y.2d 708, 475 N.E.2d 104

HARLAND ENTERPRISES, INC., Doing Business as Holland

Associates, et al., Plaintiffs, v. COMMANDER OIL CORP., Appellant,

Westbury Fire Department of the Westbury Fire District,

Respondent, et al., Defendants.

(And Three Other Actions.).

Court of Appeals of New York.

Dec. 20, 1984.

Robert J. Aurigema, Garden City, Donald E. Deegan and Marian C. Rice, Hempstead, for appellant.

E. Richard Rimmels, Jr., Mineola, for respondent.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner, Alfred Weinstein and Francis F. Caputo, New York City, of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 97 A.D.2d 785, 468 N.Y.S.2d 524, should be affirmed, with costs.

This action was brought for damages sustained when plaintiffs' warehouse was destroyed by fire. Defendant oil company, whose carelessness in repairing an oil burner located on the premises is alleged to have started the fire, cross-claimed against defendant fire department for negligence in fighting the fire. Special Term granted the fire department's motion to dismiss the cross claim on the grounds that no special duty to provide fire protection was owed to the oil company, and that mere errors of judgment on the part of the fire department in the course of fire fighting are not actionable. The Appellate Division affirmed on similar grounds and, subsequently, this court granted leave to appeal.

A fire department is not chargeable with negligence for failure to exercise perfect judgment in discharging the governmental function of fighting fires. (McGee v. Adams Paper & Twine Co., 26 A.D.2d 186, 198-199, 271 N.Y.S.2d 698, affd. 20 N.Y.2d 921, 286 N.Y.S.2d 274, 233 N.E.2d 289; see, also, Rottkamp v. Young, 15 N.Y.2d 831, 257 N.Y.S.2d 944, 205 N.E.2d 866, affg. 21 A.D.2d 373, 249 N.Y.S.2d 330.) The fire department's discretionary efforts in attempting to extinguish the fire in this case are not grounds for liability.

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE, JJ., concur.

Order affirmed, with costs, in a memorandum.