| Kupferstein v City of New York |
| 2012 NY Slip Op 08698 [101 AD3d 952] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Iris Kupferstein, Respondent, v City of New York,Appellant. |
—[*1] Bamundo, Zwal & Schermerhorn, LLP (Alexander J. Wulwick, New York, N.Y., ofcounsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, the defendant appeals from anorder of the Supreme Court, Kings County (Velasquez, J.), dated December 21, 2010, whichdenied that branch of its motion which was for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and that branch of the defendant'smotion which was for summary judgment dismissing the complaint is granted.
On October 1, 2006, the plaintiff's decedent suffered an asthma attack in his apartment andcalled 911. When a "Basic Life Support" ambulance arrived at the scene, the decedent was barelybreathing. He later became unconscious. The emergency medical technicians requested an"Advanced Life Support" (hereinafter ALS) ambulance and placed a bag valve mask on thedecedent. The ALS ambulance arrived a few minutes later. The paramedics placed the decedenton a cardiac monitor, started intravenous (hereinafter IV) fluids, intubated the decedent, andprepared him for transport. They moved the decedent by stretcher into the building's elevator,where the decedent regained some consciousness and became combative, disconnecting hiscardiac monitor and IV, and wedging himself in the elevator. A paramedic called the on-callphysician for authority to administer the sedative Versed for the purpose of calming the decedentand to permit his removal from the elevator. The drug was administered to the decedent, whowas then removed from the elevator. On the way to the ambulance, the decedent suffered cardiacarrest. He was revived and taken to the hospital. The decedent died on October 5, 2006.
The plaintiff commenced this action against the City of New York, alleging, inter alia, thatthe decedent's death was caused by the negligence of the ambulance personnel in delaying thetransport of the decedent to the hospital and in administering Versed to the decedent. Thedefendant moved, among other things, for summary judgment dismissing the complaint,contending that it could not be liable for any negligence because there was no special relationshipbetween it and the decedent. The Supreme Court denied that branch of the defendant's motionwhich was for summary judgment dismissing the complaint, finding that the special relationshipdoctrine did not apply.[*2]
The timing of the transport of the decedent from hisresidence to the hospital involved "the quintessential purpose of the municipal ambulancesystem—transporting the patient to the hospital as quickly as possible" (Applewhite v Accuhealth, Inc., 90AD3d 501, 504 [2011]). Similarly, the decedent was administered Versed in order toeffectuate his transport from the elevator into the ambulance, and not for the purpose ofproviding medical treatment (cf. Kowalv Deer Park Fire Dist., 13 AD3d 489, 491 [2004]). Accordingly, under the particularcircumstances of this case, both the timing of the transport and the administration of Versedconstituted ministerial governmental functions.
A municipality will not be held liable for the negligent performance of a ministerialgovernmental function unless the plaintiff establishes a special relationship with the publicentity, creating a special duty of protection with respect to that individual (see Valdez v City of New York, 18NY3d 69, 75 [2011]; McLean vCity of New York, 12 NY3d 194, 199 [2009]; Laratro v City of New York, 8 NY3d 79, 82-83 [2006]; Pelaez v Seide, 2 NY3d 186,199-200 [2004]; Lauer v City of New York, 95 NY2d 95, 102 [2000]; Kircher v Cityof Jamestown, 74 NY2d 251, 257 [1989]; Cuffy v City of New York, 69 NY2d 255,260 [1987]). " 'A special relationship can be formed in three ways: (1) when the municipalityviolates a statutory duty enacted for the benefit of a particular class of persons; (2) when itvoluntarily assumes a duty that generates justifiable reliance by the person who benefits from theduty; or (3) when the municipality assumes positive direction and control in the face of a known,blatant and dangerous safety violation' " (McLean v City of New York, 12 NY3d at 199,quoting Pelaez v Seide, 2 NY3d at 199-200). Insofar as relevant in this case, to establisha special relationship, a plaintiff must show: "(1) an assumption by the municipality, throughpromises 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" (Cuffy v City of NewYork, 69 NY2d at 260; see Laratro v City of New York, 8 NY3d at 82-83).
Here, the defendant made a prima facie showing of entitlement to judgment as a matter oflaw by demonstrating that no special relationship existed between it and the decedent (seeCuffy v City of New York, 69 NY2d at 260; see generally Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, theSupreme Court should have granted that branch of the defendant's motion which was forsummary judgment dismissing the complaint. Rivera, J.P., Leventhal, Roman and Cohen, JJ.,concur.