HARLAND ENTERPRISES v. COMMANDER OIL CORP., 64 N.Y.2d 708 (1984)

475 N.E.2d 104, 485 N.Y.S.2d 733

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 the State of New York.Argued November 13, 1984
Decided December 20, 1984

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Alexander Vitale, J.

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

E. Richard Rimmels, Jr., for respondent.

Page 709

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

MEMORANDUM.

The order of the Appellate Division 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, affd 20 N.Y.2d 921; see, also, Rottkamp v Young, 15 N.Y.2d 831, affg 21 A.D.2d 373.) The fire department’s discretionary efforts in attempting to extinguish the fire in this case are not grounds for liability.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

Order affirmed, with costs, in a memorandum.