Claims Against Fire District Dismissed By Appellate Division
Three related actions were consolidated for joint trial relating to a 2002 house hire that damaged three attached townhouses in Bronxville, N.Y. The owners of Unit 1 hired a roofing company on behalf of himself and Unit 2 to perform work on a shared roof. During the course of the work, a fire started when an open flame being used to solder copper gutters ignited a wood fascia board. The fire caused damage to Units 1 and 2 and spread to attached Unit 3, owned by a neighbor. The fire was extinguished by the Fire Department. It was alleged that conduct by one of the fire commissioners caused a delay in the method of fighting the fire, which increased the damage caused to Unit 3. The fire commissioner was not a named defendant. After insurance claims were paid, actions were brought by and on behalf of Unit 3, against, among others, the Fire District.
After the actions were consolidated for trial, the Fire District moved for summary judgment dismissing all claims against it on the ground it could not be held liable in the absence of a “special relationship” with an injured party, which was lacking. The Supreme Court, Westchester County, denied the Fire District’s motion, erroneously finding there was conflicting testimony regarding the conduct of the fire commissioner, which created a question of fact to be decided by a jury. The Court further held that the parties should be able to examine the witnesses at trial to determine whether governmental immunity applies.
The Fire District appealed the Supreme Court’s decision to the Appellate Division, Second Department on the basis there was no question of fact to be submitted to the jury, and it was a question for the court, not the jury, to decide whether governmental immunity applies.
On March 31, 2009, the Appellate Division, Second Department ruled the Fire District demonstrated, prima facie, that it could not be held liable as there was no evidence of a special relationship to an injured party. However, the Appellate Division, also ruled the Fire District failed to demonstrate that the alleged conduct of the fire commissioner involved discretionary rather than ministerial acts for which it could not be held liable in the absence of a special relationship with an injured party. Therefore, the Appellate Division held the Fire District should have been awarded summary judgment except to the extent the complaints and cross claims concern the alleged conduct of the fire commissioner.
On the same date of that decision, the Court of Appeals ruled in the case of McLean v. City of New York, 12 N.Y.3d 194 (Ct. of App., 2009) that Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public, in general.”
Based on the McLean case, this office moved to reargue the Appellate Division’s decision. On May 25, 2010, the Appellate Division reversed its March 31, 2009 order, on the law, and granted the Fire District summary judgment, dismissing all claims against the Fire District in their entirety.