Opinion
2019–10419 Index No. 15569/14
12-28-2022
Tynisha Rene CRUZ, etc., appellant, v. CITY OF NEW YORK, et al., respondents.
Jeffrey J. Shapiro & Associates, LLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Diana Lawless of counsel), for respondents.
Jeffrey J. Shapiro & Associates, LLC (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Diana Lawless of counsel), for respondents.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated July 8, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, alleging that the defendants were negligent in responding to a 911 call and in rendering treatment to the plaintiff's decedent. In November 2018, the defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff failed to allege that the defendants owed a special duty to the decedent. The Supreme Court granted that branch of the motion. The plaintiff appeals.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must "accept the facts as alleged in a complaint as true, accord the plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141, 53 N.Y.S.3d 598, 75 N.E.3d 1159 ). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" ( Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d at 142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 ).
"When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a ‘special duty’ to the injured party" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 423–424, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). Such a special duty can arise if "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owned to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition" ( id. at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Ferreira v. City of Binghamton, 38 N.Y.3d 298, 312–313, 173 N.Y.S.3d 484, 194 N.E.3d 239 ).
Here, the plaintiff's notice of claim, complaint, and bill of particulars did not allege the existence a special duty (see Lauer v. City of New York, 95 N.Y.2d 95, 102–103, 711 N.Y.S.2d 112, 733 N.E.2d 184 ; Estate of M.D. v. State of New York, 199 A.D.3d 754, 757, 158 N.Y.S.3d 127 ; cf. Watts v. City of New York, 186 A.D.3d 1577, 1578, 129 N.Y.S.3d 340 ; Marks–Barcia v. Village of Sleepy Hollow Ambulance Corps, 183 A.D.3d 883, 885, 125 N.Y.S.3d 116 ; Sutton v. City of New York, 119 A.D.3d 851, 852–853, 990 N.Y.S.2d 546 ). In an order dated May 30, 2018, the Supreme Court noted that the plaintiff "plan[ned] to amend [the] complaint to set forth [a] special duty owed to the decedent." However, the record does not indicate that the court granted the plaintiff leave to serve the purported amended complaint, which is dated December 17, 2018, and was served in March 2019, in opposition to the defendants’ motion (see CPLR 3025[b] ; Achee v. Merrick Vil., Inc., 208 A.D.3d 542, 542–543, 173 N.Y.S.3d 46 ).
Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.
In light of our determination, we need not reach the parties’ remaining contentions.
DILLON, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.