BRENNAN v. Upper Mountain Fire Department, Inc., Appellant.

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

Suzette BRENNAN and Richard Brennan, Respondents, v. LIONS CLUB OF OLCOTT, INC., et al., Defendants, Upper Mountain Fire Department, Inc., Appellant.

Decided: April 25, 1997

Before GREEN, J.P., and LAWTON, DOERR, BALIO and FALLON, JJ. Osborn, Reed, Burke & Tobin, L.L.P. (Paul Riordan, of counsel), Pittsford, for Appellant, Upper Mountain Fire Dept. Inc. Harter, Secrest & Emery (Richard Alexander, of counsel), Rochester, for Respondent.

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 N.Y.2d 297, 302-303, 418 N.Y.S.2d 300, 391 N.E.2d 1278;  Crawford v. Westcott Steel Co., 188 A.D.2d 731, 590 N.Y.S.2d 593).   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.

Order unanimously reversed on the law without costs, motion granted and complaint against defendant Upper Mountain Fire Department, Inc., dismissed.

MEMORANDUM: