dissent and vote to affirm in the following memorandum by Kane, J. Kane, J. (dissenting). As noted by the majority, it is well established that, in this State, a municipal officer is not liable for the injurious consequences of official action involving the exercise of discretion. The authority for that proposition and the types of situations to which it is applicable are noted in Tango v Tulevech (61 NY2d 34, 40, 41). However, it is also noted that the rule requires that acts of a discretionary or quasi-judicial nature be founded upon a "reasoned judgment which could typically produce different acceptable results” (id., p 41). Here, the linchpin of official action was the judgment to "declare that a public emergency existed with respect to the work to be performed under the contract”.
Troy City Charter § 3.10 provides in relevant part: "In case *795of any public emergency such as conflagration, riot, storm, earthquake, or other unusual peril to the lives or properties of the citizens of Troy, it shall be the duty of the city manager to declare such public emergency and to summon all the forces of the city for the purpose of taking all possible protective measures.” Therefore, the record must be examined with care to seek out the basis for that "reasoned judgment” to declare an emergency with respect to the performance of the contract. The rule or definition of "emergency” applicable to a defendant in the ordinary negligence action requires that the emergency be not of his own making (McAllister v Adam Packing Corp., 66 AD2d 975). We perceive no reason why such a rule should not apply to defendants in this action for tortious interference with contractual obligations when the necessary allegations to sustain such a cause of action are documented in the record (see, Alvord & Swift v Muller Constr. Co., 46 NY2d 276).
Keeping in mind that this is a motion for summary judgment, there is, in our view, a substantial question of fact whether this plaintiff was given the opportunity to attempt performance of the contract and thus advert the precipitous action of the City Manager, defendant John P. Buckley, in declaring what he perceived to be an "emergency” and thus entitle him to direct defendant Troy Urban Renewal Agency to cancel plaintiff’s contract and award it to another whose bid was higher. The record clearly demonstrates that the "work proceed notice” given to plaintiff by defendant agency, dated October 27, 1978, was for access to the contract site "for salvage purposes only” and particularly provided that "no demolition work is to be commenced until a second notice is issued”. No second notice was ever issued. Moreover, plaintiff was not contacted by defendants until November 14, 1978, when time restraints were imposed upon him as to the method of performance of the demolition work. An issue of fact exists as to whether an "emergency” existed or was, in fact, created. If the latter, such action would be improper for it would, in effect, condone the use of statutory emergency powers as a subterfuge to invalidate binding contractual obligations. Additionally, such action would be beyond the scope of official authority and without the immunity afforded official acts of a discretionary or quasi-judicial nature (see, Tango v Tulevech, supra, p 41).
We would therefore affirm the order appealed from.