Schekter v. Long Island Lighting Co.

In a negligence action to recover property damages allegedly sustained as a result of a fire which occurred at the plaintiffs’ premises, the plaintiffs appeal, as limited by their brief, from so much of an order and *592judgment (one paper) of the Supreme Court, Nassau County (Wager, J.), entered June 10, 1986, as granted the motion of the defendant Albertson Fire Company and the cross motion of the defendant Garden City Park Water Fire District to dismiss the complaint insofar as it is asserted against them for failure to state a cause of action as against them and denied that branch of the plaintiffs’ cross motion which was for leave to amend the complaint.

Ordered that the order and judgment is affirmed insofar as appealed from, with one bill of costs.

It is well settled that "there can be no cause of action against a fire department for alleged negligence in the methods it uses to fight a fire, absent the assumption of a special duty” (Harland Enters. v Commander Oil Corp., 97 AD2d 785, affd 64 NY2d 708). We agree with the Supreme Court that the allegations in the original and in the proposed amended complaint, if proven, would not establish that the defendant fire companies assumed any special duty towards the plaintiffs (see, Vogel v Liberty Fuel Corp., 52 AD2d 667, 668). Therefore, the plaintiffs’ original complaint as against the defendant fire companies was properly dismissed and that branch of the plaintiffs’ cross motion which was for leave to amend the complaint was properly denied. Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.