Opinion
January 31, 1992
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with same Memorandum as in Austin v City of Buffalo ([appeal No. 1] 179 A.D.2d 1075 [decided herewith]) and the following Memorandum: Defendants Kenneth M.J. Glowacki and James Weed are entitled to summary judgment dismissing the complaints against them. We reject plaintiff's contention that those defendants were negligent when they placed the emergency telephone call notifying the authorities of the leaking propane because they did not give further information concerning the existence of a lighted stove on the premises. Defendants did all they could to notify the firefighters of that fact when the firefighters arrived. One who assumes a duty to act is not liable to an injured plaintiff unless he has assumed such a relation to the plaintiff that he has affected the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit on him (see, Prosser and Keeton, Torts § 56, at 375 [5th ed]). Here, the firefighters were obligated to respond to a call of a propane leak and the failure of the individuals to report over the 911 line that there was a lighted stove on the premises was merely the withholding of a benefit to the firemen. Public policy dictates against imposing liability against a citizen who places an emergency call merely because he fails to give all pertinent information.
For the reasons stated in the Memorandum in Austin v. City of Buffalo (supra) and for the reasons stated herein, the order appealed from is reversed by dismissing the causes of action against all defendants, except the Wilson defendants, and as to the Wilson defendants the order is modified by dismissing the causes of action against them, except the causes of action pursuant to General Municipal Law § 205-a.