| Sherpa v New York City Health & Hosps. Corp. |
| 2011 NY Slip Op 09113 [90 AD3d 738] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Phuri Sherpa, Individually and as Coadministrator of the Estate ofTshering Lamasherpa, Deceased, Appellant, v New York City Health & Hospitals Corp.,Defendant, and City of New York, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner, AmyLondon, and Ronald E. Sternberg of counsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals (1)from so much of an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated August4, 2010, as granted that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against the defendant City of New York, and (2), aslimited by his brief, from so much of a judgment of the same court dated August 24, 2010, as,upon the order, is in favor of the defendant City of New York and against him dismissing thecomplaint insofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant City of New York.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment dated August 24, 2010 (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are broughtup for review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
Shortly after 1:00 a.m. on July 30, 2005, the plaintiff called 911 on behalf of his wife, thedecedent Tshering Lamasherpa, and requested an ambulance because the decedent was havingtrouble breathing. Based on the information conveyed in the 911 call, the ambulance dispatcherclassified the plaintiff's call as "RESPIR," which is a priority "4" call, and dispatched a Basic LifeSupport (hereinafter BLS) ambulance to the scene. Shortly thereafter, that ambulance wasreassigned to a higher priority call, and another BLS ambulance was assigned to respond to theplaintiff's call. After the arrival of the BLS ambulance, the decedent's priority status wasupgraded, and an Advanced Life Support (hereinafter ALS) ambulance was assigned to respond.An ALS ambulance carries additional life support equipment and medicine and is staffed byparamedics who [*2]have additional training and are authorizedto administer intravenous medications and perform invasive procedures such as intubating apatient. After the ALS ambulance arrived, the decedent went into cardiac arrest. The ALSparamedics succeeded in resuscitating the decedent and transported her to the emergency room.Over the next 24 hours, the decedent suffered three more episodes of cardiac arrest, from whichshe was resuscitated, but she could not be resuscitated from a fourth episode of cardiac arrest thatoccurred at 1:39 a.m. on July 31, 2005, and she passed away.
The plaintiff commenced this action against, among others, the City of New York, thealleged owner and operator of the 911 emergency system and ambulances. Insofar as is relevant,the plaintiff alleged that the 911 dispatcher negligently sent the wrong kind of ambulance inresponse to his 911 call. The defendants moved for summary judgment dismissing the complaint.The Supreme Court, among other things, granted that branch of the motion which was forsummary judgment dismissing the complaint insofar as asserted against the City and dismissedthe complaint insofar as asserted against that defendant. We affirm the judgment insofar asappealed from by the plaintiff.
In the context of municipal employees acting as agents for a municipality, "[g]overnmentaction, if discretionary, may not be a basis for liability" (McLean v City of New York, 12 NY3d 194, 203 [2009]; seeLauer v City of New York, 95 NY2d 95, 99 [2000]; Tango v Tulevech, 61 NY2d 34,40 [1983]; Kochanski v City of NewYork, 76 AD3d 1050, 1051 [2010]). "[D]iscretionary or quasi-judicial acts involve theexercise of reasoned judgment which could typically produce different acceptable results whereasa ministerial act envisions direct adherence to a governing rule or standard with a compulsoryresult" (Tango v Tulevech, 61 NY2d at 41; see Haddock v City of New York, 75NY2d 478, 484 [1990]; Kelleher v Town of Southampton, 306 AD2d 247, 248 [2003]).
The defendants met their prima facie burden of establishing entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against the City by showing that theambulance dispatcher's decision of which kind of ambulance to send was discretionary and,therefore, protected by the doctrine of governmental immunity (see generally Allen v Townof Amherst, 294 AD2d 828, 829 [2002]). In opposition, the plaintiff failed to raise a triableissue of fact.
The plaintiff's remaining contentions are without merit or need not be reached in light of theforegoing.
Accordingly, the Supreme Court properly granted that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against the City.Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.