Hambel v. Bohemia Fire Department

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 23, 1993, which granted the motion of the defendants Bohemia Fire Department and Bohemia Fire District for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is affirmed, with costs to the respondents Bohemia Fire Department and Bohemia Fire District. Contrary to the plaintiffs’ contention, the Supreme Court properly awarded summary judgment to the moving defendants. It is well settled that public entities cannot be held liable for negligence claims arising out of the performance of their governmental functions, including police and fire protection, unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual (see, Miller v State of New York, 62 NY2d 506, 511; De Long v County of Erie, 60 NY2d 296, 304). When the liability of a governmental entity is at issue, ”[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182; see also, Platovsky v City of New York, 199 AD2d 373). At bar, the injured plaintiff alleges that the high decibel level of the defendants’ fire siren damaged his ears and caused him to suffer a significant hearing loss. However, the defendants were performing a governmental function when they sounded the fire siren to summon the volunteer members of the Bohemia Fire Depart 380 ment to an emergency call (see, Miller v State of New York, 62 NY2d 506). Accordingly, in the absence of any evidence of a special relationship between the injured plaintiff and the defendants, the plaintiffs’ negligence claims against the Bohemia Fire Department and Bohemia Fire District were properly dismissed. Balletta, J. P., O’Brien, Copertino and Pizzuto, JJ., concur.