Opinion
July 13, 1984
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff failed to state a cause of action against Rochester Gas Electric Corporation (RGE) and summary judgment was properly granted dismissing the complaint. The rule is well established that a public utility may not be held liable for negligent failure to supply service absent a contractual relationship between plaintiff and the utility (see Moch Co. v. Rensselaer Water Co., 247 N.Y. 160; Strauss v. Belle Realty Co., 98 A.D.2d 424; Beck v. FMC Corp., 53 A.D.2d 118, affd 42 N.Y.2d 1027; cf. Koch v. Consolidated Edison Co., 62 N.Y.2d 548). It was error, however, to dismiss the third-party complaints against RGE by Firelands Construction Company and the County of Monroe. The third-party complaints, although couched in rather broad allegations of negligence, may be construed as alleging that RGE owed a duty to the third-party plaintiffs to prevent them from incurring liability for RGE's negligence in failing to reconnect the power lines as a result of which plaintiff was injured. Under current principles of apportionment and comparative negligence, a tort-feasor may have a claim for proportionate liability against a third party in the absence of a duty by that third party to the injured person. "If an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person" ( Garrett v. Holiday Inns, 58 N.Y.2d 253, 261; see, also, Nolechek v. Gesuale, 46 N.Y.2d 332). There are issues of fact with respect to the alleged negligence of RGE which preclude the granting of summary judgment dismissing the third-party complaints. It will be necessary to determine whose responsibility it was to restore the current to light pole No. 54; what kind of notice was given to RG who had the responsibility to reconnect the power line and who was responsible for the delay in reconnecting it. Those and other questions must be resolved by the trier of facts.