Kogel Lumber & Supply, Inc. v. Suffolk Cnty. Water Auth., 131 A.D.2d 728 (N.Y. App. Div. 1987). · Go Syfert
Kogel Lumber & Supply, Inc. v. Suffolk Cnty. Water Auth., 131 A.D.2d 728 (N.Y. App. Div. 1987). Cases Citing This Book View Copy Cite
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Strongest positive: Rood Utilities, Inc. v. City of Auburn (nyappdiv, 1996-11-08)
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discussed Cited as authority (rule) Rood Utilities, Inc. v. City of Auburn
N.Y. App. Div. · 1996 · confidence medium
Moreover, defendant’s alleged ministerial omissions in failing to provide adequate fire protection and sufficient water pressure and defendant’s alleged errors in judgment made in fighting the fire are insufficient to render defendant liable for its performance of this governmental function (see, Kenavan v City of New York, supra, at 569-570; Motyka v City of Amsterdam, supra; Messineo v City of Amsterdam, 17 NY2d 523 ; Henry v City of New York, 15 NY2d 726 ; Steitz v City of Beacon, 295 NY 51 ; Moch Co. v Rensselaer Water Co., 247 NY 160 ; Kogel Lbr. & Supply v Suffolk County Water Auth.,…
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Kogel Lumber and Supply, Inc.
v.
Suffolk County Water Authority
Appellate Division of the Supreme Court of the State of New York.
Jun 22, 1987.
131 A.D.2d 728
Cited by 4 opinions  |  Published

In an action to recover damages for injury to property caused by a fire, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kutner, J.), dated March 26, 1986, as granted so much of the motion of the defendant Suffolk County Water[*729] Authority which was for summary judgment dismissing the complaint insofar as it is asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The record clearly establishes that the claims of the plaintiffs are not actionable against the respondent, a public benefit corporation. Absent a special relationship between the injured party and the public entity which allegedly committed the negligent act or omission, a governmental agency cannot be held liable for negligent acts committed in the performance of its governmental functions (see, Sorichetti v City of New York, 65 NY2d 461). The complaint alleged that the plaintiffs’ lumber yard was destroyed by fire due in part to the respondent’s failure to provide sufficient water pressure at the pumping station adjacent to the lumber yard.

At the time of the fire, the only relationship between the plaintiffs and the respondent was that some of the plaintiffs subscribed to the respondent’s public water service for their private premises. Section VII of the respondent’s rules and regulations provided that it was not liable "for a deficiency or failure in the supply of water or the pressure thereof for any cause whatsoever”. Further, although some of the plaintiffs had previously sold the land upon which the respondent built the pumping station to the respondent, and some of the plaintiffs had entered into several construction loan agreements with the respondent, none of these contracts imposed any duty upon the respondent to maintain a particular level of water pressure at the pumping station. Consequently, none of these contracts created any special relationship between the plaintiffs and the respondent concerning maintenance of water pressure at the pumping station which would support a cause of action by the plaintiffs against the defendant (see, Vought v Teachers’ Coll., Columbia Univ., 127 AD2d 654).

Moreover, there is no merit to the plaintiffs’ contention that the respondent’s decision to reduce the water pressure in the pumping station during off-peak hours constituted an "affirmative act” which removes this case from the general rule of nonliability with respect to governmental agencies (see, Blancovitch v City of New York, 131 AD2d 418). Mangano, J. P., Niehoff, Spatt and Harwood, JJ., concur.