Sawyer v. Town of Lewis , 782 N.Y.S.2d 318 ( 2004 )

Appeals from an order of the Supreme Court, Lewis County (Joseph D. McGuire, J.), dated September 22, 2003. The order, inter alia, granted the motion of defendant Town of Ava for summary judgment and denied the motions of defendants West Leyden Volunteer Fire Department, Inc., Steven W. Sullivan, Linda S. Sullivan and Town of Lewis for summary judgment in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion of defendants West Leyden Volunteer Fire Department, Inc., Steven W. Sullivan and Linda S. Sullivan in part and dismissing the amended complaint against defendant West Leyden Volunteer Fire Department, Inc. and as modified the order is affirmed without costs.

Memorandum: Defendant Steven W. Sullivan, who was Fire Chief of defendant West Leyden Volunteer Fire Department, Inc. (WLVFD), was operating a vehicle owned by defendant Linda S. Sullivan as he responded to an emergency call in defendant Town of Ava. As he was attempting to pass vehicles in a no-passing zone and near the crest of a hill, his vehicle collided with a vehicle driven by plaintiff John A. Sawyer, in which his wife and son were passengers. The Sawyers sustained injuries, and John Sawyer, individually and on behalf of his son, and Christine Sawyer commenced an action against the Town of Ava. They also commenced a separate action against WLVFD, the Sullivans, and defendant Town of Lewis, the town in which WLVFD is incorporated and in which WLVFD maintains its equipment and apparatus. The two actions were thereafter consolidated. The Town of Ava moved for, inter alia, summary judgment dismissing the complaint against it, and the remaining defendants moved for summary judgment dismissing the amended complaint against them. The Town of Lewis sought, in the alternative, conditional orders of indemnification from WLVFD and the Sullivans. Supreme Court granted the motion of the Town of Ava but denied the motions of the other defendants.

With the exception of the denial of that part of the motion of WLVFD and the Sullivans seeking summary judgment dismissing the amended complaint against WLVFD, we affirm for the reasons stated in the decision of Supreme Court. With respect to WLVFD, we conclude that it is entitled to summary judgment dismissing the amended complaint against it, and we therefore modify the order accordingly. Plaintiffs alleged that WLVFD is responsible for the actions of Steven Sullivan. Where, as here, a firefighter is a member of an incorporated fire agency in a fire protection district, the town in which the agency is incorporated is deemed to have control over the operations of the agency (see Not-For-Profit Corporation Law § 1402 [e] [1]). Although Sullivan was responding to a call in another town pursuant to a contract between WLVFD and that town, the Town of Lewis maintained exclusive control over WLVFD because WLVFD maintained its apparatus in the Town of Lewis (see § 1402 [e] [2]). Because WLVFD had no control over Sullivan, it is not a proper party to this lawsuit, which is based on Sullivan’s alleged negligence (see Miller v Savage, 237 AD2d 695, 696 [1997]; Haskell v Chautauqua County Fireman’s Fraternity, 184 AD2d 12, 17 [1992], lv dismissed 81 NY2d 954 [1993]).

We note that the Town of Ava served a notice of cross appeal but has failed to brief any issues with respect thereto, and thus we deem the cross appeal abandoned and dismissed (see 22 NYCRR 1000.12 [b]). Present—Pine, J.P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.