| Francesco v Empress Ambulance Serv., Inc. |
| 2012 NY Slip Op 07268 [100 AD3d 589] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Nancy Francesco, Appellant, v Empress AmbulanceService, Inc., Doing Business as Empress Emergency Medical Services, et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, N.Y. (Timothy P. Coonand Jennifer Alampi of counsel), for respondents.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from anorder of the Supreme Court, Westchester County (Smith, J.), dated December 16, 2011, whichdenied her motion for summary judgment on the issue of liability against the defendants EmpressAmbulance Service, Inc., doing business as Empress Emergency Medical Services, andChristophe Reiland.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability againstthe defendant Christophe Reiland, and substituting therefor a provision granting that branch ofthe motion; as so modified, the order is affirmed, with costs to the plaintiff.
On September 9, 2008, the defendants Christophe Reiland and Marvin Martinez, employeesof the defendant Empress Ambulance Service, Inc., doing business as Empress EmergencyMedical Services (hereinafter Empress), were dispatched to the home of Rita Esposito(hereinafter the decedent) to provide emergency medical services. During the transport of thedecedent to the hospital, Reiland, a paramedic, placed an endotracheal tube into the decedent tohelp her breathe. Upon arriving at the hospital, the decedent suffered complications, includingcardiac arrest, and subsequently died.
The plaintiff, as the administrator of the decedent's estate, commenced this action, inter alia,to recover damages for wrongful death against Empress, Reiland, and Martinez. The plaintiffalleged that the negligence of Reiland and Martinez resulted in the decedent's death, and thatEmpress was vicariously liable for their negligence under the theory of respondeat superior.
During the pendency of the action, Reiland failed to appear for a court-ordered [*2]deposition. The Supreme Court granted the plaintiff's motion tostrike Reiland's answer for failure to comply with a prior order.
Subsequently, the plaintiff moved for summary judgment on the issue of liability againstEmpress and Reiland on the ground that, since the Supreme Court had stricken Reiland's answer,thereby establishing his liability, as a consequence, Empress, as Reiland's employer, was liablepursuant to the doctrine of respondeat superior. The Supreme Court denied the plaintiff's motion,and the plaintiff appeals.
The Supreme Court should have granted that branch of the plaintiff's motion which was forsummary judgment on the issue of liability against Reiland, since Reiland's answer had beenstricken due to his failure to comply with a prior discovery order (cf. Baez v Wurm, 240AD2d 526, 526 [1997]).
The Supreme Court properly determined that the plaintiff, through the affidavit of her expertmedical doctor, established her prima facie entitlement to judgment as a matter of law on theissue of liability against Empress (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Moreover, the Supreme Court properly concluded that, in opposition, Empress raised atriable issue of fact as to whether Reiland properly intubated the decedent and monitored herblood oxygen levels during his care of the decedent, through the affidavit of its own expert(see Alvarez v Prospect Hosp., 68 NY2d at 324). Contrary to the plaintiff's contention,the court correctly rejected the plaintiff's argument that Empress, as Reiland's employer, wasprecluded from contesting its own vicarious liability by raising a triable issue of fact regardingReiland's negligence in opposition to the plaintiff's motion on the basis that Reiland's answer hadbeen stricken (see e.g. Balanta v Stanlaine Taxi Corp., 307 AD2d 1017, 1018 [2003];Holt v Holt, 262 AD2d 530, 531 [1999]; S.D.I. Corp. v Fireman's Fund Ins. Cos.,208 AD2d 706, 708 [1994]; see also Cropper v Stewart, 2009 NY Slip Op 30595[U][Sup Ct, New York County 2009]; compare Trivedi v Golub, 46 AD3d 542, 543 [2007]).
Thus, that branch of the plaintiff's motion which was for summary judgment on the issue ofliability against Empress was properly denied. Mastro, J.P., Lott, Austin and Cohen, JJ., concur.