Opinion
Index 607202/2018
02-23-2022
EKWINDER KHASIRA and HARPAL SINGH, as Go-Administrators of the Estate of LAKHWINDER KHASIRA Deceased, and EKWINDER KHASIRA, Individually, Plaintiffs, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY POLICE AMBULANCE EMERGENCY BUREAU, Defendants. Motion Seq. Nos. 002, 003
Unpublished Opinion
PRESENT: HON. ROBERT A. MCDONALD JUSTICE.
ROBERT A. McDONALD JUDGE.
| The following papers were considered on this motion: | NYSCEF DOC NO. |
| Notice of Motion (002).................................... | 45 |
| Affirmation in Support.......................................... | 46-51 |
| Notice of Cross-Motion (003)............................................. | 56 |
| Affirmation in Opposition to Motion/Support of Cross-Motion;.. | 57-68 |
| Affirmation in Opposition to Cross-Motion........................ | 71-72 |
| Reply Affirmation............................. | 73 |
This motion by the defendants COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT and NASSAU COUNTY POLICE AMBULANCE EMERGENCY BUREAU for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is decided as provided herein.
This cross-motion by the plaintiffs EKWINDER KHASIRA and HARPAL SE4GH, as Co-Administrators of the Estate of LAKHWlNDER KHASIRA, Deceased and EKWINDER KHASIRA, Individually, for an order pursuant to CPLR 3025 (b) granting them leave to amend their complaint to advance a claim of "special duty" and an order pursuant to Civil Rights Law § 50-a directing the defendants to produce EMT/GC Mario Orlassino's unredacted disciplinary records relating to the care provide by him to Lakhwinder Khasira, Deceased, on March 27, 2017, is determined as provided herein.
The plaintiffs in this action seek to recover damages for, inter alia, the wrongful death of the decedent, Lakhwinder Khasira, ("the decedent") based upon the care provided to him by the defendants in the early morning hours of March 27, 2017. They allege that the defendants committed medical malpractice and were negligent in their care -or lack thereof- of the decedent. More specifically, they allege that the defendants failed to appreciate the gravity of the decedent-s physical state and brought him to his hotel room and put him to bed instead of transporting him to a hospital where he could have received the Care he was in dire need of.
Presently, the defendants seek summary judgment dismissing the; complaint against them on several grounds. First, they seek dismissal of the medical malpractice claim based upon Insurance Law § 5501. They seek dismissal of the negligence claim based upon the plaintiffs' alleged failure to plead that they owed the decedent a special duty in their Notice of Claim or their complaint. They further maintain that assuming, arguendo, that the: plaintiffs' failure to specifically plead a special duty is not determinative and/or can be cured by amendment, there was, in fact, no special duty owed by them. Finally, the defendants maintain that assuming, arguendo, that the plaintiffs can establish an issue of fact as to whether they owed the defendant a special duty, liability is in any event barred by the governmental immunity defense since they were engaged in discretionary acts while performing governmental services.
The plaintiffs have cross-moved to amend their complaint to include allegations that the decedent was owed a special duty by the defendants who treated him on the night of March 27, 2018. They have also sought further disclosure by the defendants of Orlassino's full personnel file entries relating to this incident based upon the repeal of Section 50-a of the Civil Rights Law.
The facts relevant to the determination of these motions which are critical to the resolution of the defendants' motion are as follows:
The decedent's wife Ekwinder Khasira testified at her 50-h hearing as follows:
The decedent's wife testified that she, her husband and their two children spent the day of March 26, 2017 site-seeing in New York City followed by dinner at a restaurant. She testified that her husband had a few drinks at dinner; more specifically, two to three small glasses of Black Label with water. She drove them back to their hotel in Westbury using GPS while her husband slept in the back seat of the car. She testified that when they arrived at their hotel sometime after midnight on March 27th, heir husband could not get up; he was unable to get out of the ear. When even her-attempts to awaken him by touching him failed, she pulled their car up to the front Of the hotel and tried once again to awaken her husband. When she was still unable to wake him, she sought assistance at the hotel's front desk but was told that there was no one available to help her. A hotel guest in the breakfast area came outside to help her, got her husband Out of the car and placed him on the ground. The decedent's wife testified that this individual suggested they contact 911; she agreed and that individual's mother called 911.
The decedent's wife testified that the defendants Nassau County Police Department and the Nassau County Police Emergency Ambulance Bureau responded within five to seven minutes. She testified that her husband was unconscious and did not ever talk to the defendant responders. The police inquired of her as to where they had come from and when she answered a restaurant, they asked if her husband had had any alcohol there and she told them that he had. She testified that they did not ask her how much alcohol her husband had consumed. When she was asked if she thought her husband was intoxicated at that time, she answered that she thought he "needed treatment" She testified that after the police "found out that he was drunk," they asked for identification and continued questioning her.
The decedent's wife testified that she did not know whether anyone from the ambulance examined her husband because she was busy talking to the police officers. She testified that after being there about 15-20 minutes and trying to awaken her husband, the police officers placed him in a wheelchair which the defendants had brought; and then, the two police officers brought him to their room on the fourth floor via elevator. The decedent's wife testified that after the officers put her husband in bed she asked them if he needed any medication and they said "no, he's fine." The officers then left. She testified that none of the ambulance ever came to their room.
The decedent's wife testified that a few minutes after the emergency personnel left, she saw something coming out of her husband's mouth while he was sleeping. She cleaned him up and covered him with a blanket. Later that morning around 5:45 a.m. she awoke and after going to the bathroom, went to check on her husband and discovered that his lips were purple, and he was really cold. She was unable to wake him and called 911. The decedent was taken to Nassau County Medical Center where he was pronounced dead. The Nassau County Medical Examiner determined the cause of death to be "acute ethanol intoxication." His lung exam found "aspiration of gastric contents'' with "edema" and "congestion" and his bronchial tree had "material consistent with gastric content present in the proximal branches."
At his examination before trial, Orlassino testified that he was an "EMT-CC" which stood for Emergency Medical Technician Critical Gare, Prehospital Care with advanced level standing. He was dispatched to the scene at 1:53 a.m. and arrived at 1:58 a.m. Upon arrival, he parked his ambulance behind the two police ears that were already there. Orlassino testified that before he even exited his vehicle, Police Officer Cote approached him and told him that they were dealing with someone who had been drinking and that neither he nor his wife wanted him brought to the hospital; They only wanted help getting him to his hotel room. Orlassino testified that he observed Police Officer Siarkowicz standing beside a man who was sitting up against a car and that he overheard a woman who turned out to be the decedent's wife tell Siarkowizc that she did not want her husband brought to the hospital as they were returning to Canada in a few hours.
Orlassino testified that he approached the decedent and asked him what was going on whereupon his wife interrupted and said that she did not want him brought to the hospital. The decedent's wife told him that her husband had been drinking and that she had to drive them hack to the hotel. She also told him that she had just gone to the front desk seeking help and that she did not understand why an ambulance was there. Orlassino testified that she did not tell him that she was concerned about her husband or that she thought he needed medical care. Orlassino further testified that the decedent told him that he did not want to go to the hospital as he was fine. While Orlassino observed that the decedent had alcohol on his breath, his breathing Was normal his eyes were open and he was moving his arms. Orlassino conducted a limited exam including examining the decedent's chest and lungs which were normal and checking for a pulse. Orlassino testified that he knew that the decedent was intoxicated; that he told his Wife that he was severely intoxicated; and, that he told her that her husband should be brought to the hospital. In fact, Orlassino acknowledged that the decedent could suffer from alcohol poisoning and that he was in danger of choking on his own vomit which could be life threatening. He admitted, however, that he did not share that information with the decedent's wife.
Orlassino testified that he was not the person who could compel the decedent to go to the hospital; that was the police officers' call as they are trained in how to deal with intoxicated people. For that reason, he followed the police officers' lead. He testified that his job was to provide medical care, Orlassino testified that he and the police officers put the decedent on a "stair chair" which is like a wheelchair, strapped him to it and transported him to his room. The decedent fell asleep in the chair and his head slumped to one side. Orlassino testified that the decedent awoke as they were guiding him to stand up alongside the bed. They lied him on bed on his side and propped pillows: behind him. They instructed the decedent's wife to call 911 immediately if there was any change in his status. Orlassino testified that as they were leaving, he asked Office Siarkowicz why the decedent's wife refused to have him brought to the hospital and:he responded because they did not have insurance in the United States, Orlassino was questioned about the Patient Care Report he prepared regarding this incident and acknowledged being asked about it by the Commander who reviews them, When asked about the missing entries relating to patient information, assessment, vitals, treatment and protocols, he said they were not filled out because the call got changed from an "Aided" which indicates that the person was transported to a "no aided" because the decedent was not transported, He also admitted that he had to write a letter to his Commander about this incident; When asked why his entry "No aided" was followed by "GOA," he responded that that was an error. That abbreviation stands for "gone on arrival" a/k/a no longer at the scene.
Police Officer Cote testified at his examination before trial that he and his partner Were dispatched to the hotel at 1;52 a, m, The dispatch message was "intoxicated male on the floor, front parking lot, complainant requests an ambulance." The complainant's name was Alexis, who it seems was the woman who called 911 from the hotel. Cote testified that when he and his partner arrived at 1:53 a.m., they observed the decedent's wife standing next to him. The decedent was not unconscious and was moving "sluggishly." The decedent's wife told them that her husband was drunk but she did not tell them how much he had to drink. Officer Cote testified that it appeared that the decedent could be severely intoxicated and that bis wife told him that she Was concerned about him. Cote vaguely recalled a conversation with the decedent's wife about insurance after which the decedent's wife "insisted" he be brought to their room. He testified that they transported him to his: hotel room in a stair chair and that he was moving "sluggishly" when he was strapped into it. They left after getting the decedent to the hotel room-Police Officer Siarkowicz testified at his deposition that he was dispatched to the scene with his partner Officer Cote. He testified that when they arrived, they observed the decedent sitting up leaning against the ear. His wife was standing beside him talking to someone who he believed worked at the hotel and they were snickering and pointing to the decedent. The decedent's wife told him that they had been visiting her brother-in-lawy that her husband had two drinks and that she was unable to get him up to their room when they arrived back at the hotel Siarkowiez testified that the decedent's wife didn't appear to be concerned about him at all as she was saying that they would laugh about this the next day. The decedent's wife's only concern was getting him to their room. While waiting for the ambulance, he observed that the decedent appeared to be sleeping. Siarkowiez testified that he was not concerned about the decedent because he was breathing.
Officer Siarkowiez testified that when the ambulance arrived, the decedent's wife was adamant that she did not want him brought to the hospital. She stated that they did not have insurance. He believed that he told her that she did not have to worry about money and that her husband could still be brought to the hospital for treatment, Siarkowiez testified that they in fact, offered to bring the decedent to the hospital but his wife continued to refuse and said that there was no need to do so. He testified mat they put the decedent in the stair chair and transported him to the room. Once there, they placed him in the bed. He testified that his wife continued to joke about this and took pictures of her husband saying he was going to laugh about it the next day. Siarkowiez testified that after they got; the decedent to bed, may left. He did not recall die decedent's wife asking him any questions and testified that he may have said to her that her husband just needed to sleep it off.
Siarkowiez read the report he prepared out loud as follows:
"Aided Bill Khasira was reported not to have been able to bear weight after exiting auto after having visited family and having several cocktails. No injuries reported or noticed. Wife was adamant about not going to the hospital due to their lack of insurance in this country. Wife just asked for assistance to get him into his bed, which was done without incident. Aided was left in care of wife and family."
EMTCC Orlassino's Personnel File
The plaintiffs' motion for disclosure of EMT Orlasslno's personnel file based upon the amendment to Civil Service Law § 50-a is denied. General Construction Law § 94 provides that ''[u]nless otherwise specially provided by law, all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed," "It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly of by necessary implication requires it" (Majewski v. Broadalbin-Perth Cent School Dist., 91 N.Y.2d 577, 584 [1998], citing Jacobus v. Colgate, 217 NY 235, 240 [Cardozo, J.] ["It takes a clear expression of the legislative purpose to justify are troactive application"]; Landgraf v. USI Film Prods., 511 U.S. 244, 265 ["the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic"]). The plaintiffs have not met their burden of showing any intention for the amendment of Civil Service Law § 50-a to apply retroactively. Furthermore, the plaintiffs have already been provided portions of the relevant materials from Qrlassino's file after an in camera review by this court.
Plaintiffs' Motion to Amend
'"' [A]plications for leave to amend pleadings under CPLR 3025(b) should be freely granted unless the proposed amendment (I) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit' " (Recine v. Recine, __A.D.3d__, 157 N.Y.S.3d 395, 395-396 [2d Dept 2022], quoting Venablesv Rovegno, 195 A.D.3d 876, 876 [2d Dept 202:1] [internal quotation marks omitted.])."" 'In determining amotion for leave to. amend a pleading, a court shall not examine: the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt'" (Recine v. Recine, 157 N.Y.S.3d at 395-396, quoting JPMorgan Chase Bank, N.A. v, Campbell, 189 A.D.3d 1014, 1014 [2d Dept 2020]; citing Favia v. Harley-Davidson Motor Co., Inc., 119 A.D.3d 836, 836 [2d Dept 2014]).
The specific words "special duty" are not required to be plead; Rather, "the complaint [must] allege[] facts and circumstances from which the existence of a special duty could reasonably be inferred" (Bishop v. Bostick, 141 A.D.2d 487, 489 [2d Dept 1988]; see also, Cockburn v. City of New York 129 A.D.3d 895, 897 [2d Dept 2015]). In fact, the words "special duty," standing alone do not establish such a claim (POzarski v. Brooklyn Bridge Park Corp., 64Misc.3d 1217(A) at *9 [Sup Gt Kings County 2019], citing Freeman v. City of New York, 111 A.D.3d 780 [2d Dept 2013]; Cockburn v. City of New York, supra). The facts alleged in support of the alleged "special duty'' are determinative (Pozarski v. Brooklyn Bridge, Park Corp., 64 Misc.3d 1217(A) at *9-10, citing Freeman v. City of New York) supra; Cockburn v. City of New York, supra). Nevertheless, where "the complaint fails to allege any facts tending to show knowledge by the defendants that inaction would lead to harm, or that there was any justifiable reliance made by the defendants, it fails "to state facts from which it could be found that there was a special relationship between the [plaintiff] and the defendants and, therefore, the complaint does not state a viable cause of action" (Cockburn v. City of New York, 129 A.D.3d at 897, citing Estate of Gail Radvin v. City of New York, 119 A.D.3d 730, 733 [2d Dept 2014];Freeman v. City of New York, 111 A.D.3d at 782; cf. Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 431 [2013]).
The plaintiffs' Notice of Claim alleges that there was an urgent call for medical services due to the decedent's unresponsiveness and that, the defendants failed to recognize the seriousness of the decedent's condition and to properly diagnose and treat him. In their complaint the plaintiffs allege that the defendants warranted and represented that the defendants were trained and capable of promptly and properly assessing and responding to calls for emergency medical services and/or ambulance conveyance: and care "due to obvious, reported and witnessed unremitting life-threatening medical emergencies including the decedent.., ." They further allege that the decedent suffered a life-threatening medical emergency while in the defendants' control; that the decedent urgently required immediate hospital, medical and emergency services due to his reported and witnessed unremitting life-threatening medical condition; and, that the defendants failed to provide the decedent with the care he needed. In their Bill of Particulars, the plaintiffs allege that the defendants carelessly, negligently and egregiously ignored the decedent's condition which was a progressive life threatening one. They allege in minute detail that that the defendants failed to treat the decedent appropriately and that as a result of their negligent care, the defendants permitted the decedent to suffer prolonged breathing problems, decreased heart rate arid other alarming medical complications which ultimate lead to his cardiopulmonary arrest and wrongful death.
The plaintiffs allege that they pled facts which indicate that the defendants voluntarily assumed a duty through promises or actions and took positive direction and control to act on behalf of the decedent; that the defendants knew that inaction could lead to harm; that there Was some kind of direct contact between the defendants and the decedent; and, that they justifiably relied on the defendants' affirmative undertaking. They cite their allegation that the defendants responded to the call for medical services relating to decedent's unresponsiveness as the assumption of a duty by the defendants to the decedent as well as the direct contact. They cite their allegation that the defendants' inaction led to the decedent's condition deteriorating leading to his death and that the defendants knew that that was a risk. They allege that the decedent relied on the defendants to transport him to the hospital for treatment and that they failed. The plaintiffs did not plead any affirmative representations by the defendants or evidence of their justifiable reliance in the Notice of Claim, the complaint or the Bill of Particulars.
In their proposed Amended Complaint, the plaintiffs allege that the defendants assumed: direction and control of the decedent's care and that by doing so, they formed a special relationship with him which imposed upon them a special duty to act on his behalf. They further allege that: by assuming control of the decedent's care, the "defendants assumed, through promises or actions, an affirmative duty to act on behalf of the plaintiffs." They further allege that under the circumstances, i.e., the decedent's diminished mental state and their assumption of control of his care, the defendants knew that inaction on their part or their failure to provide care in accordance with the applicable medical standards could lead to grave injury to the decedent. They additionally allege that as a result of the defendants' assumption of control of the decedent's care, they justifiably relied on defendants' undertaking to care for the decedent in conformity with good and accepted medical standards and that the defendants' undertaking lulled them into a false sense of security and induced them to forego other avenues of care.
While the plaintiffs have delayed in advancing a claim of special duty, there is no prejudice to the defendants as a result thereof. The plaintiffs' amended complaint appears to advance special duties under two categories: They allege that the defendants voluntarily assumed a duty that generated justifiable reliance by them and that the defendants assumed positive direction and control in the face of a known, blatant and dangerous safety violation.
The plaintiffs' motion to amend their complaint to advance a claim that the defendants assumed positive direction and control in the face of a known, blatant and dangerous safety Violation is denied in light of the lack of a factual predicate for such a claim (cf., Smullen v. City of New York, 28 N.Y.2d:66 [1971]), This claim "has been recognized only in rare circumstances, as when a municipality, having actual knowledge of a blatant violation of safety laws, nevertheless provides affirmative assurances of safety on which the injured plaintiff relies (Abraham v. City of New York, 39 A.D.3d 21, 28 [2d Dept 2007], citing Garrett v. Holiday Inns, 58 N.Y.2d 253 [2007], lv denied, 10 N.Y.3d 707 [2008]; Smullen v. City of New York, supra; Pinkney v. City of New York, 50 A.D.2d 928 [2d Dept 1975], affd, 40 N.Y.2d 1004 [1976]; De La Paz v. City of New York, 294 A.D.2d 327 [2d Dept 2002]).
There is no prejudice to the defendants in permitting the plaintiffs to advance a claim that they voluntarily assumed a duty that generated justifiable reliance by them. The basis of this case is not affected in the least but for the plaintiffs' compliance with this technical requirement which is adequately based on the underlying facts. Nor have: the defendants demonstrated that the amendment is palpably insufficient based upon their defenses of lack of special duty or governmental immunity (see, infra.),
It is well-established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]). A party seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotie v. Gervasio, 81 N.Y.2d 923 [1993]). If the movant makes a prima facie showing, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra at 324). "[T]o defeat a motion for summary judgment the opposing parry must 'show facts sufficient to require a trial of any issue of fact'" (Friends of Animals y Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 1067-1068 [1979], quoting CPLR 3212, subd. [b]). "On a motion: for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Qrtxz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 [2011']).
Medical Malpractice
A medical malpractice claim does not lie as an BMT is not among those parties listed in Insurance Law § 5501. To the extent that there are rare circumstances under which a medical malpractice claim can be advanced against EMT personnel (see, Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 427-28 [2013], citing Schrempf v. State of New York, 66 N.Y.2d 289 [1985]; Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592 [1999]; Matter of Murray v. City, of New York, 30 N.Y.2d 113 [1972]), there have been no allegations that the kind of care required to rise to that level was provided or withheld by any of the defendants here. The defendants' motion for summary judgment dismissing the medical malpractice claim is granted and that claim is dismissed, without opposition.
Special Duty: Proprietary vs. Governmental
'"When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the: municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose (quotations omitted)" (Trenholm-Owens v. City of Yonkers, 197 A.D.3d 521, 522 [2d Dept 2021], quoting Turturro v. City of New York, 28 N.Y.3d 469, 477 [2016], quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425). "If the municipality is engaged in a proprietary function, it is subject] to suit under the ordinary rules of negligence" (Trenholm-Owens v. City of Yonkers, \91 A.D.3d at 522-523, citing Tara N.P. v. Western SuffolkBd. of Coop. Educ. Servs., 28 N.Y.3d 709, 713 [2017]; Apple white v. Accuhealth, Inc., 21 N.Y.3dat 425), "If, however, the municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty (quotations omitted)" (Trenholm-Owens v. City of Yonkers, 197 A.D.3d at 523* quoting Turturro v. City of New York, 28 N.Y.3d at 478; citing Tara KP, v. Western Suffolk Bd. of Coop. Educ, Servs., 28 N.Y.3d at 714).
"A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises. In contrast, a [government entity] will be deemed to have been engaged in a governmental function when its acts are undertaken for me protection and safety of the public pursuant to the general police powers (quotations omitted)" (Trenholm-Owens v. City of Yonkers, 197 A.D.3dat 523, quoting Connolly v. Longls. Power Auth., 30 N.Y.3d 719, 727 [2018], quoting Turturro v. City of New York, 28 N.Y.3d at 477-778). "The: relevant inquiry in determining whether a governmental agency is acting within a governmental Or proprietary capacity is to examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred ..., not whether the agency involved is engaged generally in proprietary activity oris in control of the location in which the injury occurred (emphasis added)" (Trehholm-Owehs v. City of Yonkers, 197 A.D.3d at 523, quoting Grasso v. New York State Thruway Auih, 159 AD3;d 674 [2d Dept 2018], quoting Matter of World Trade Ctr. Bombing Litig, 17 N.Y.3d 428, 447 [2011], citing Connolly v. Long Is. Power Auth, 30NY3d at 728).
EMTs have been found to have been acting in a propriety capacity "when they began to render aid, equating their conduct with medical services such as mental health care, obstetrics and surgery (Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 427-28, citing Sehrempf v. State of New York, supra; Bryantv New York City Health & Hosps. Corp., supra; Matter of Murray v. City of New York, supra). "In those situations, however, the 'governmental activities . . . displaced or supplemented traditionally private enterprises'" (Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 428 quoting Riss y City of New York, 22 N.Y.2d 579, 581 [1968]). "Emergency medical services, in contrast, have widely been considered: one of government's critical duties [citations omitted]" (Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 428; see also, Rennix v. Jackson, 152 A.D.3d 551, 553 [2d Dept 2017]; Estate of Radvin v. City of New York, supra; Holloway v. City of New York, 141 A.D.3d 688 ), A review of the record reveals that in treating the decedent, the defendants were rendering only the traditional emergency services provided by municipalities and therefore, a special duty is therefore a predicate for the defendants to bear liability in this case. In fact, the plaintiffs do not dispute that.
Special Duty
"An agency of government is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public (emphasis added)'" (McLean v. City of New York, 12 N.Y.3d 194, 199 [2009], quoting Garrett v. Holiday Inns, 58 N.Y.2d at 261 [citations omitted]). "The core principle is that to sustain liability against a municipality, the duty breached must be more than that owed the public generally (quotations omitted)" (Applewhite v. Accuhealth, Inc., 21 N.Y.3d 426 quoting Valdez v. City of New York, 18 N.Y.3d 69, 75 [2011], quoting Lauer v. City of New York, 95 N.Y.2d 95, 100 [2000]), A special duty, "-'a duty to exercise reasonablecare toward the plaintiff-is 'born of a special relationship between the plaintiff and the governmental entity' in contrast to a general duty owed to the public [citations mitted]" (McLean v. City of New York, 12 N.Y.3d at 199, quoting Pelaez v. Seide, , 2 N.Y.3d 186, 198-199 [2004]).
"There are three recognized situations in which a special duty may arise: '(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from die duty; Or (3) when the municipality assumes positive direction and control In the face of a known, blatant and dangerous safety violation'" (Rennix v. Jackson, 152 A.D.3d at 553, quoting Pelaez v. Seide, 2NY3d at 199-200, citing Applewhite v. Accuheaith, Inc., 21 N.Y.3d at 426;McLean v. City of New York, 12 N.Y.3d at 199). "It is the plaintiff s Obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of die negligence claim itself (Applewhite v. Accuheaith, Inc., 21 N.Y.3d at 426, citing Lauer v. City of New York, 95 N.Y.2d at 100; Valdez v. City of New York, 18 N.Y.3d at 75-76]). "In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity" (Applewhite v. Aceuhealth, Inc., 21 N.Y.3d at 426).
"A municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiffs where there is: '(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 oh the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's: agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking [citations omitted]' "' (Holloway y City of New York, 141 A.D.3d at 690, quoting Applewhite v. Accuheaith, Inc.*, 21 N.Y.3d at 430-431 [internal quotation marks omitted]). All four elements must be present for a special duty to be established (Pozarski v. Brooklyn Bridge Park Corp., 64 Misc.3d 1217(A) at *9, quoting Cuffy v. City of New York, 69 N.Y.2d255 [1987], citing Applewhite v. Accuheaith Inc., 21 N.Y.3dat43l; Tara N.P. v. W. Suffolk Bd. of Co-op. Educ. Services, supra), "Of the four factors' the 'justifiable reliance' element is particularly 'critical' because it:'provides the essential causative link between the special duty assumed by the municipality and the alleged injury' "(Halberstam v. Port Auth. of New York and New Jersey, 175 A.D.3d 1264, 1266-67 [2d Dept 2019], quoting Valdez v. City of New York, 18 N.Y.3d at 81, [internal quotation marks omitted]).
Governmental Immunity
Even where a special duty exists, the common law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions (Valdez v. City of New York 18 N.Y.3d at 75-76, citing Matter of World Trade Ctr. Bombing Litig., supra; Lauer v. City of New York, 95N.Y.2d at 98; Tango v. Tuleyech, 61 N.Y.2d 34, 40 [1983]; see also, Connolly v. Long Is. Power Auih., 30 N.Y.3d at 728; Turturro v. City of New York, 28 N.Y.3d at 477-778)." 'A public employee's discretionary acts-meaning conduct involving the exercise of reasoned judgment-may not result in the municipality's liability even when the conduct is negligent'" (Valdez v. City of New York, 18 N.Y.3d at 711, quoting Lauer v. City of New York, 95 N.Y.2d at 98). "In other words> even If a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority" (Valdez v. City of New York, 18 N.Y.3d at 76). "[T]he availability of governmental function immunity also turns on 'whether the conduct giving rise to the claim is related to an exercise of that discretion' (Valdez v. City of New York, 18 N.Y.3d at 79, quoting Mon v. City of New York, 78 N.Y.2d 309, 313 [1991]). "The defense precludes liability for a 'mere error of judgment' but this immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making-i.e., 'the exercise of reasoned judgment which could typically produce different acceptable results'" (Valdez v. City of New York, 18 N.Y.3d at 79-80, quoting Tango v. Tulevech, 61 N.Y.2d at 41, citing Haddock v. City of New York, 75 N.Y.2d 478, 485 [1990])., "[T]he governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated" (Valdez v. City of New York, 18 N.Y.3d at 76, citing Mon v. City of New York, 78 N.Y.2daf 313; Haddock v. City of New York, 75 N.Y.2d at 484). "In determining this issue, the: court must focus on' the conduct on which liability is predicated'" (Lynchi v. Town of Greenburgh, 6.1 Misc.3d 459, 470 [Sup Ct Westchester County 2018], quoting Trimble v. City of Albany, 144 A.D.3d 1484 [3d Dept 2016]; citing Valdez. City of New York, supra).
In seeking summary judgment, the defendants have done no more than set forth the foregoing legal principles via an affirmation of counsel which, although clearly applicable here, must be related to the facts extant to obtain the relief sought. The moving affirmation refers to the facts of this case in only the most general terms. The defendants have failed to discuss the facts relating to their relationship with the plaintiffs, such as the services they were called upon to provide and did in fact provide as well as their communications with the plaintiffs and the decedent which would provide the basis for a determination of whether or not the defendants had a special duty to the decedent.
Reviewing the record before the court, including the medical records, protocols and testimony submitted!,, this court also finds that defendants have failed to set forth a prima facie entitlement to summary judgment on the grounds of governmental function immunity as a matter of law. The defendants cite generalized, conclusory statements relating to EMT protocols which permit EMTs to exercise discretion without ever addressing their application here. In fact, the specific protocols are not discussed or explained, the actual medical actions taken by the defendants are not delineated or compared to protocols, specific examples of acts of discretion by the defendants are not provided, and there is no express support for the medical care that was withheld. As such, the defendants' position is conclusory, speculative and offers no relevant competent evidence (Lynch v. Town of Greenburgh, 61 Misc.3d at 470, citing Rodriguez v. Waldman, 66 A.D.3d 581 [1st Dept, 2009]; Stinson v. Lueders, 159 A.D.3d 652 [1st Dept. 2018]; Kerrins v. South Nassau Communities Hosp., 148 A.D.3d 795 [2d Dept. 2017 As stated previously, governmental function immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making-i.e., the exercise of reasoned judgment: which could typically produce different acceptable results (Lynch v. Town of Greenburgh, 61 Misc.3d at .citing Valdez v. City of New York, supra).
The defendants' failure to relate the legal principles to the facts of this case requires that: their motion be denied.
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment (002) dismissing the complaint against them is granted in part only to the extent that the claim sounding in medical malpractice is dismissed; the motion for summary judgment is otherwise denied, and it is further
ORDERED, that Plaintiffs' eross-motion (003) (a) for further disclosure of EMT-CC Orlassinos' personnel file insofar as it relates to this case pursuant to Civil Rights Law § 50-a is denied and (b) for leave pursuant to CPLR 3025 (b) to amend their complaint is granted to the extent provided herein; and it is further
ORDERED, that Plaintiffs' amended complaint shall be electronically filed within fifteen (15) days of the entry date of this order and the aforesaid filing of same shall constitute service upon the Defendants herein; and, Defendants shall interpose an answer to the amended complaint within twenty (20) days of service of same.
This shall constitute the decision and order of the Court.