Brennan v. Lions Club of Olcott, Inc.

238 A.D.2d 929, 661 N.Y.S.2d 157, 1997 N.Y. App. Div. LEXIS 4744

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant Upper Mountain Fire Department, Inc., dismissed. Memorandum: Supreme Court erred in denying the motion of defendant Upper Mountain Fire Department, Inc. (UMFD), for summary judgment dismissing the complaint against it. UMFD established that, at the time Suzette Brennan (plaintiff) was injured, the off-duty members of UMFD who were present were not acting at the direction or control of UMFD and were not acting in furtherance of any duty owed to UMFD. Rather, the individuals were engaged in personal activity outside the scope of their employment (see, Riviello v Waldron, 47 NY2d 297, 302-303; Crawford v Westcott Steel Co., 188 AD2d 731). UMFD also established that it did not participate in crowd control or protection of the public at the demolition event, and plaintiffs failed to establish the existence of a duty owed by UMFD to plaintiff. (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Summary Judgment.) Present—Green, J. P., Lawton, Doerr, Balio and Fallon, JJ.