| Applewhite v Accuhealth, Inc. |
| 2011 NY Slip Op 09002 [90 AD3d 501] |
| Dcmbr 15, 2011 |
| Appellate Division, First Department |
| Tiffany Applewhite et al., Appellants, v Accuhealth, Inc.,et al., Defendants, and City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 30, 2010, thatin an action for personal injuries sustained as a result of allegedly negligent treatment renderedby emergency personnel of defendant City of New York, sued herein as Emergency MedicalService and the City of New York, granted said defendant's motion for summary judgmentdismissing the complaint as against it, unanimously reversed, on the law, without costs, themotion denied, and the complaint reinstated as against the City of New York.
The record demonstrates that plaintiffs filed the note of issue on May 8, 2009. This requiredthe City (defendant) to file a motion for summary judgment no later than 120 days after the filingof the note of issue, i.e., September 5, 2009 (CPLR 3212 [a]). However, because September 5thwas a Saturday, and Monday, September 7th, was Labor Day (see General ConstructionLaw § 25-a [1]), the motion defendant served on September 8, 2009, was timely.
The facts underlying this case are discussed in a decision on a prior appeal (81 AD3d 94[2010]). Accordingly, this decision will relate only those facts necessary to a full understandingof this decision.
The infant plaintiff suffered anaphylactic shock during a home infusion of medication calledSolu-Medrol. Her mother called 911 while the nurse who had been giving the home infusioncommenced CPR. Two emergency medical technicians (EMTs) arrived, but only in a basic lifesupport (BLS) ambulance because an advanced life support (ALS) ambulance was not availableat the time the mother placed her call. While one of the EMTs assisted the nurse with CPR, theother left the apartment to request an ALS ambulance, because the ambulance that arrived firstlacked a stretcher, a valve mask and a defibrillator. During that time, the mother made a secondcall to 911. Some time thereafter, paramedics arrived in an ALS ambulance. These paramedicsadministered epinephrine and oxygen to infant plaintiff and then transported her to the hospital.She survived, but suffered significant brain damage.
Plaintiffs commenced this action against the City of New York because it administered theambulance service through the fire department. After plaintiffs filed the note of issue, defendantmoved for summary judgment. The motion court granted that motion. Plaintiffs appealed.
As a threshold issue, we must determine the capacity in which the City was acting. When theCity acts in a proprietary capacity, it is subject to the same principles of tort law as a privateentity (Miller v State of New York, 62 NY2d 506, 511 [1984]). By contrast, discretionaryacts, such as the failure to issue a license, can never be a basis for damages (McLean v City of New York, 12 NY3d194, 202 [2009]). Similarly, public entities are not usually liable for claims arising out of theperformance of a government function (ministerial acts) (id.). "[A] municipality is notliable to a person injured by the breach of a duty—like the duty to provide policeprotection, fire protection or ambulance service—that the municipality owes to the generalpublic" (Laratro v City of NewYork, 8 NY3d 79, 82-83 [2006]).
However, liability for ministerial acts may arise where there exists a special relationshipbetween the injured party and the public entity that creates a special duty of protection to theinjured party (see McLean, 12 NY3d at 201). To establish that a municipality owes aspecial duty, a plaintiff must demonstrate four elements: " '(1) an assumption by the municipality,through promises or actions, of an affirmative duty to act on behalf of the party who was injured;(2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) someform of direct contact between the municipality's agents and the injured party; and (4) that party'sjustifiable reliance on the municipality's affirmative undertaking' " (Mastroianni v County ofSuffolk, 91 NY2d 198, 204 [1997], quoting Cuffy v City of New York, 69 NY2d255, 260 [1987]).
Plaintiffs posit that we must analyze this case under general tort principles because theemergency medical services (EMS) personnel were allegedly negligent in their provision ofmedical care, and provision of medical care is not a government function. Conversely, the Cityargues that the provision of emergency medical services is a government function that requiresproof of a special duty as a basis for liability.[FN1]
Under the facts of this case, defendant was acting in a ministerial capacity. Plaintiffs faultdefendant for failing to bring oxygen to the apartment, for advising the mother that she shouldwait for the ALS ambulance and for waiting for the ALS ambulance that arrived 20 minutes laterinstead of taking the infant plaintiff to the hospital that was four minutes away. Absent areallegations that defendant provided medical treatment in an improper manner. Thus, this case isnot like Kowal v Deer Park FireDist. (13 AD3d 489 [2004]), in which it was not necessary to establish a specialrelationship where a municipal paramedic mistakenly placed an endotracheal tube in theplaintiff's esophagus thereby causing her death (see also Fonville v New York City Health &Hosps. Corp., 300 AD2d 623, 624 [2002] [claims based upon improper treatment were notsubject to special relationship analysis]).
Here, the gravamen of plaintiffs' claim is that defendant should have transported the infantplaintiff to the hospital immediately rather than waiting an additional 20 minutes for the ALSambulance to effectuate transport. This claim involves the quintessential purpose of themunicipal ambulance system—transporting the patient to the hospital as quickly aspossible. Thus, defendant's poor advice and failure to transport is much closer to the performanceof a government function than to the proprietary act of a medical provider caring for a patient.Accordingly, defendant's actions were ministerial and the special relationship doctrine applies.
Pursuant to that doctrine, dismissal of the complaint was improper because defendantassumed a special duty toward this plaintiff. The first element of a special relationship is theassumption of an affirmative duty to act.[FN2]Here, the first ambulance to arrive at plaintiffs' home was a BLS ambulance that did not have thenecessary equipment to treat infant plaintiff. Despite her mother's request to take the child to thenearby hospital immediately, the EMTs allegedly assured the mother that it would be better forinfant plaintiff to wait at the home until an ALS ambulance arrived with paramedics and properequipment. Under these alleged circumstances, the assurances and advice of the emergencypersonnel constituted an assumption, "through promises or actions, . . . to act onbehalf of [infant plaintiff]" for the purposes of determining a special relationship (Cuffy vCity of New York, 69 NY2d 255, 260 [1987]).
The parties do not dispute the second factor, knowledge on the part of the municipality'sagents that inaction could lead to harm, and the third factor, some form of direct contact betweenthe municipality's agents and the injured party. The main point of contention centers around thefourth factor in the special relationship analysis—justifiable reliance. Defendant contendsthat the mother could not have relied on anything they said or did. This misses the point. Therecord reflects that the mother asked the EMS technicians to take her daughter to MontefioreHospital, only four minutes away. The EMS technicians responded that it was preferable to waitfor the ALS ambulance and continued to administer CPR. The EMS technicians made thedecision not to transport the child immediately and to call for the ALS ambulance to effectuatetransport. At no point did defendant communicate to the mother that the ALS ambulance wouldtake another 20 minutes to arrive for the subsequent transport. The mother justifiably relied onthe EMS technicians, who had taken control of the emergency situation, and who elected to awaitthe arrival of the ALS ambulance.
It is irrelevant that the mother's affidavit in opposition to a different motion by defendantnurse Russo did not specifically allege that she asked the EMTs to take infant plaintiff to thehospital. This amounts to, at most, a triable issue of fact or a credibility determination, neither ofwhich is appropriate for resolution on this motion for summary judgment (see Powell v HIS Contrs., Inc., 75AD3d 463, 465 [2010]).
The issue of proximate cause also cannot be resolved on the existing record. There are triableissues regarding whether the infant plaintiff's brain damage could have been altogether avoidedor, at the very least, mitigated. The expert affidavits do not resolve the cause and severity of theinjuries, but instead raise material issues of fact. Concur—Mazzarelli, J.P., Andrias,Catterson and Moskowitz, JJ.
Footnote 1: The City concedes that"plaintiffs are correct that acts of misfeasance may render the special duty doctrine inapplicable"but insists that what occurred here was an act of nonfeasance that does require a specialrelationship before liability can attach. In McLean (12 NY3d 194 [2009]), the Court ofAppeals did not discuss the doctrine of a special duty or relationship in terms of misfeasance andnonfeasance, but clearly intended to apply the special relationship doctrine to all acts thatconstitute a government function. Accordingly, we will not evaluate this case using a distinctionbetween nonfeasance and misfeasance. We merely distinguish proprietary functions fromministerial functions.
Footnote 2: Because the motion court foundno justifiable reliance, it did not reach this issue.