CROMAN v. III III

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Supreme Court, Appellate Division, Fourth Department, New York.

Adam CROMAN, Plaintiff-Appellant, v. COUNTY OF ONEIDA, Defendant, Town of Westmoreland, Lairdsville Fire Department, Inc., Lowell Fire Department, Westmoreland Fire Department, Westmoreland Fire District, Alan Baird, III, Individually and as First Assistant Chief of Lairdsville Fire Department, Inc., Gary Spaven, Individually and as Second Assistant Chief of Lairdsville Fire Department, Inc., James Kimball, Individually and as Chief of Westmoreland Fire Department, Peter Holmes, Individually and as Chief of Westmoreland Fire District, Leon R. Vanbenschoten, III, Individually and as Commissioner of Westmoreland Fire District, Bernard Lucas, Individually and as Commissioner of Westmoreland Fire District, Randy Smith, Individually and as Commissioner of Westmoreland Fire District, Bernard J. Szarek, Jr., Individually and as Commissioner of Westmoreland Fire District, Ronald M. Drake, Individually and as Commissioner of Westmoreland Fire District, Robert Walsh, Individually and as Commissioner of Westmoreland Fire District, George A. Dorn, Individually and as Chief of Lowell Fire Department, and Jeffrey J. Schaller, Defendants-Respondents.  (Appeal No. 1.)

Decided: September 22, 2006

PRESENT:  PIGOTT, JR., P.J., HURLBUTT, MARTOCHE, AND GREEN, JJ. Murad and Murad, Utica (Frederick W. Murad of Counsel), for Plaintiff-Appellant. Boeggeman, George, Hodges & Corde, P.C., White Plains (Paul E. Svensson of Counsel), for Defendant-Respondent Town of Westmoreland. Taddeo & Shahan, LLP, Syracuse (Steven C. Shahan of Counsel), for Defendants-Respondents Lairdsville Fire Department, Inc., Lowell Fire Department, Westmoreland Fire Department, Westmoreland Fire District, Alan Baird, III, Individually and as First Assistant Chief of Lairdsville Fire Department, Inc., Gary Spaven, Individually and as Second Assistant Chief of Lairdsville Fire Department, Inc., James Kimball, Individually and as Chief of Westmoreland Fire Department, Peter Holmes, Individually and as Chief of Westmoreland Fire District, Leon R. Vanbenschoten, III, Individually and as Commissioner of Westmoreland Fire District, Bernard Lucas, Individually and as Commissioner of Westmoreland Fire District, Randy Smith, Individually and as Commissioner of Westmoreland Fire District, Bernard J. Szarek, Jr., Individually and as Commissioner of Westmoreland Fire District, Ronald M. Drake, Individually and as Commissioner of Westmoreland Fire District, Robert Walsh, Individually and as Commissioner of Westmoreland Fire District, and George A. Dorn, Individually and as Chief of Lowell Fire Department. Knych & Whritenour, LLC, Syracuse (Matthew E. Whritenour of Counsel), for Defendant-Respondent Jeffrey J. Schaller.

 These consolidated appeals arise from actions seeking damages for injuries sustained by plaintiff Adam Croman and the wrongful death and conscious pain and suffering of Bradley P. Golden (Golden) as the result of a fire on property owned by defendant Jeffrey J. Schaller.   The fire was set in a vacant house on Schaller's property as part of a training exercise for volunteer firefighters, including Croman and Golden.   Supreme Court properly granted the motions of defendant Town of Westmoreland and the cross motion and motion of Schaller seeking summary judgment dismissing the complaints and cross claims against them and those parts of the motions of the “fire department defendants” (i.e., all of the remaining defendants with the exception of the County of Oneida and Alan Baird, III, individually and as First Assistant Chief of the Lairdsville Fire Department, Inc.) seeking summary judgment dismissing the complaints against them.   We reject plaintiffs' contention that the motions and cross motion were prematurely granted because discovery was not complete.   Plaintiffs “failed to show that ‘facts essential to justify opposition may exist but [could not] then be stated’ (CPLR 3212 [f] ) and that [plaintiffs] require[d] the discovery of facts that are within the exclusive knowledge of another party” (Wittkopp v. ADF Constr. Corp., 254 A.D.2d 775, 776, 678 N.Y.S.2d 199).   Contrary to plaintiffs' further contentions, Schaller met his burden of establishing that he owed no duty of care to Croman and Golden under the circumstances (see generally Morris v. Freudenheim, 273 A.D.2d 885, 709 N.Y.S.2d 312) and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: