SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 19, 1969
RICHARD M. TUTHILL ET AL., RESPONDENTS,
CITY OF ROCHESTER ET AL., APPELLANTS
Appeal from order of Monroe Special Term denying motion to dismiss complaint. 57 Misc. 2d 94.
Del Vecchio, J. P., Marsh, Gabrielli, Moule and Henry, JJ.
Memorandum: The complaint fails to allege facts to support any cause of action against defendants. Plaintiffs were residents of the Point Pleasant Fire District which had contracted with the City of Rochester for relaying calls for fire assistance, to the district's fire department. Plaintiffs' home was destroyed by fire and they charge negligence because of the failure of the city (and its agents) to have personnel present to handle the distress call and, further, because it failed to establish safety regulations for use of the relay system. The contract between the city and Fire District created no especial duty nor benefit running to plaintiffs individually and at best was for the benefit of the general public. Here, as in Moch Co. v. Rensselaer Water Co. (247 N. Y. 160) plaintiffs have not shown that their benefit under the contract is either primary or immediate. Under these circumstances there is no liability to plaintiffs. (See Riss v. City of New York, 22 N.Y.2d 579; Motyka v. City of Amsterdam, 15 N.Y.2d 134; Steitz v. City of Beacon, 295 N. Y. 51.) Reliance on section 209-p of the General Municipal Law to establish a basis for tort responsibility is unavailing, since the section creates neither a new duty nor liability any greater than existed under common law.
Order unanimously reversed, without costs, motion granted, and complaint dismissed.
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