Opinion
510128/2016
07-16-2019
Marek POZARSKI, Plaintiff, v. BROOKLYN BRIDGE PARK CORPORATION, Brooklyn Bridge Park Conservancy, Inc., North Jersey Pool Management, LLC, American Pool Enterprises, Inc., The City of New York, Douglas Henihan, Claudine Beckford, Senior Care Emergency Medical Services, Inc., Mourtazaliev and Lancia Hooper, Defendants.
Jennifer K. Mathew, Esq. Gregory J. Cannata & Associates LLP Attorney for Plaintiff 60 East 42nd Street, Suite 932 New York, NY 10165 Brian Middlebrook, Esq. Sarah Prager, Esq. Gordon Rees Scully Mansukahni, LLP Attorney for Defendants The City of New York, Douglas Henihan and Claudine Beckford One Battery Park Plaza, 28th Floor New York, NY 10004 Mahoney & Keane LLP Attorney for Defendants Brooklyn Bridge Park Corporation, Brooklyn Bridge Park Conservancy, Inc., North Jersey Pool Management, LLC and American Pool Enterprises, Inc. 61 Broadway, Suite 905 New York, NY 10006
Jennifer K. Mathew, Esq.
Gregory J. Cannata & Associates LLP
Attorney for Plaintiff
60 East 42nd Street, Suite 932
New York, NY 10165
Brian Middlebrook, Esq.
Sarah Prager, Esq.
Gordon Rees Scully Mansukahni, LLP
Attorney for Defendants
The City of New York, Douglas Henihan
and Claudine Beckford
One Battery Park Plaza, 28th Floor
New York, NY 10004
Mahoney & Keane LLP
Attorney for Defendants Brooklyn Bridge
Park Corporation, Brooklyn Bridge Park
Conservancy, Inc., North Jersey Pool
Management, LLC and American Pool
Enterprises, Inc.
61 Broadway, Suite 905
New York, NY 10006
Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
NYSCEF Doc. No.:
Notice of Motion/Cross Motion/Order to Show Cause and
Affidavits (Affirmations) Annexed 73-98
Opposing Affidavits (Affirmations) 116-132
Reply Affidavits (Affirmations) 151
Introduction
Defendants, The City of New York, Douglas Henihan and Claudine Beckford move by notice of motion, sequence number six, (1) pursuant to CPLR § 3211(a)(7) dismissing plaintiff's Amended Complaint; (2) pursuant to CPLR § 3212 for summary judgment in their favor and dismissing all claims and cross claims against them; and (3) for such other and further relief as this Court deems just and proper. Plaintiff, Marek Pozarski, opposes this application. Defendants, Brooklyn Bridge Park Corporation, Brooklyn Bridge Park Conservancy, Inc., North Jersey Pool Management, LLC and American Pool Enterprises, Inc., do not oppose the motion.
One branch of defendants' motion is to dismiss plaintiff's cause of action for negligent retention, hiring, supervision as the City concedes that Henihan and Beckford were acting within the scope of their employment. Plaintiff does not oppose this branch of defendants' motion (see Affirmation in Opposition at ¶ 5).
Background
Plaintiff allegedly sustained personal injuries on September 7, 2015, while swimming in the pool located at Brooklyn Bridge Park. Brooklyn Bridge Park is owned by the City of New York and operated by Brooklyn Bridge Park Corporation (see NYSCEF Doc. No. 93, Contract). Brooklyn Bridge Park Corporation contracted with Brooklyn Bridge Park Conservancy (Conservancy) on June 25, 2012, to operate the swimming pool (see NYSCEF Doc. # 94, Pop-Up Pool Project Agreement). Pursuant to the 2015 Pool Management Agreement, the Conservancy contracted with North Jersey Pool Management (see NYSCEF Doc. # 95). Pursuant to this agreement, lifeguards were employed by North Jersey Pool (see also NYSCEF Doc. # 85, Examination Before Trial of Sean Johnson at 25, 29).
According to the 2015 Pool Management Agreement, North Jersey Pool Management does business as Manhattan Pool and Leisure (see id. ). Further, according to the examination before trial testimony of Sean Johnson, American Pool New York operates as North Jersey Pool Management, LLC (see NYSCEF Doc. # 85 at 7). American Pool Enterprises, LLC is the parent company (see id. at 8). North Jersey is a subsidiary of American Pool (see id. at 18).
Sean Johnson, President of North Jersey Pool, testified at an examination before trial (EBT) on May 29, 2018 (see NYSCEF Doc. # 85, Johnson EBT). Johnson testified that pursuant to the 2015 agreement, North Jersey Pool exclusively operated the pool at Brooklyn Bridge Park in 2015 (see id. at 55). John Dugan, Regional Director at North Jersey Pools, assigned to Brooklyn Bridge Park, visited the pool approximately three times per week (see id. at 59).
The Incident
Plaintiff testified at a hearing pursuant to GML § 50-h on April 20, 2016 (see generally, NYSCEF Doc. # 83) and at an examination before trial on February 9, 2018 (see generally, NYSCEF Doc. # 84) with the use of a Polish interpreter. Plaintiff testified that he rode his bicycle to Brooklyn Bridge Park on September 7, 2015 and decided to go into the pool (see EBT at 19-20).
Q. I guess my question is, did you dive into the pool? Did you jump into the pool? Did you climb down a ladder to get into the pool?
MS. MATHEW: Note my objection. You can answer.
A. I think I followed a father with two children. I reached the steps. As I was walking down the steps, down to about the knee level, I wetted my hands, my shoulders with water. I sat. Soon the water reach [sic ] more or less the waistline, and I moved forward and I started to swim and I was swimming under the water.
(id. at 21).
He continued to swim under the water until he reached the end of the pool, where he "hit the wall of the pool with [his] head" (id. at 22).
Plaintiff testified that he never stood up in the pool (see id. at 21). He did not know how deep the pool was (see id. ). He swam with his eyes open. The water was clear "but there was something specific that effected [sic ] my vision because I couldn't see well. And I felt burning" (id. at 22-23). After striking the wall, he felt pain in his head but did not know if he was bleeding (see id. at 28). Immediately after, plaintiff surfaced. "I took a breath. But at that time, I choked on water" (id. at 26). Plaintiff does not remember whether he could stand at that end of the pool, but he surfaced from underwater (id. at 27-28). He lost consciousness briefly, but the next thing he remembers is lying on his back on the pool deck (see id. at 28-29). He does not recall how he got out of the pool (see id. at 28). He recalls seeing a person in a navy blue uniform but does not recall seeing a lifeguard or any person in a red bathing suit (see id. at 30-31).
Q. Had anything been placed on your neck?
A. As I was lying, I had nothing put on.
Q. At some point, did someone try to move you?
A. Yes.
Q. How did that happen?
A. After providing some information, two people under the arms and lifted up.
Q. You provided the information to who?
A. I don't know. I was answering questions, and I was telling to the police officer about my outfit.
Q. Now, you say, "police officer." Is that the person in the dark blue uniform?
A. No. No.
Q. So there was a person with a dark blue uniform in addition to a police officer?
A. Yes. In front of me.
...
Q. You said two people were behind you to pick you up, correct?
A. Well -- I felt -- well, yes.
Q. Do you know what they looked like?
A. No.
Q. Do you know what they were wearing?
A. No.
Q. What happened?
A. As I was picked up by those persons, they picked me up to about 45 degree angle.
Q. And what happened at that point?
A. I felt even more pain in the neck, and my legs went apart.
Q. Maybe I didn't ask you the right questions. I asked you if you felt pain in your head. When did you feel pain in your neck?
A. Well, no. To me I -- I have this. It is always a pain in the head.
Q. When they went to pick you up to the 45 degrees, did you have pain in a different area or was it still in your head?
A. Only the head was hurting me.
(id. at 31, 33-34).
Q. Did, at any time, you have an expectation that someone would provide you with medical treatment that you did not receive.
A. Well, in the first case, when I was picked up, I didn't have any security.
Q. What do you mean you didn't have security?
A. As I was lying down without anything, without any neck brace, I was then -- it would be -- the spine brace. I was picked up from the concrete.
MS. MATHEW: The answer is unclear. Try to listen.
I don't know if you want to ask a follow-up question.
Q. You said you never saw who, I think you said, picked you up?
A. There were two persons who were picking me up on both sides.
Q. What did they look like?
A. I don't know.
Q. Were they male or female?
A. I don't know. I only know that I was grabbed by one person under my arm on one side and the other person on the other side, the other arm.
Q. Do you know what prompted them to try to pick you up?
A. They wanted to help me.
Q. Did you ask anyone to help you up?
A. I did not ask anybody. It was medical decision.
Q. How do you know it was a medical decision?
A. Maybe I said it incorrectly. Medicine. Well —
MS. MATHEW: They just want to know why they picked you up. Don't. guess. If you know, you know. Don't guess. Don't presume. Just answer what you know.
A. I don't know.
(id. at 102-104).
The plaintiff's testimony regarding his communication with personnel at the scene, given the language barrier is unclear.
Plaintiff cannot recall how he was taken away from the scene. He testified that he "was probably transferred onto a stretcher" (id. at 36).
Q. Do you remember them putting something underneath you? I am trying to find out what you remember.
A. I remember a transfer on something hard.
Q. Do you remember them picking you up?
A. No, not that.
Q. Do you remember being placed into the ambulance?
A. Yes.
Q. Do you recall if you had anything around your neck?
A. I don't remember.
(id. at 38-39).
In an affidavit, sworn to on March 5, 2019, and submitted in opposition herein, plaintiff opined that
3. It was obvious when City ambulance personnel arrived on the scene at the Brooklyn Bridge Park Pool that they were there specifically to render assistance to me. I was the only person that day who required assistance and it was evident that the ambulance personnel came to examine me versus someone else.
4. That day at the scene, I was questioned by EMS personnel and was also physically examined by EMS personnel. My interactions with EMS personnel were not brief but went on for an extended period of time before I was transported to the hospital.
5. While Polish is my first language, I was able to understand some of the questions posed to me at the scene and was able to respond to some of ambulance personnel's questions. It was obvious that the purpose of the EMTs arrival was to assist me, to examine me and to eventually take me to the hospital. Given the EMTs repeated actions at the scene, I reasonably believed that they would act properly and not injure me. When ambulance personnel arrive at the scene to assist you and then examine you, it is reasonable to rely on them to properly treat you and transport you and to assume that you do not need to call for further assistance since the ambulance is already on scene tending to you.
(NYSCEF Doc. # 130).
Claudine Beckford, an emergency medical technician (EMT) at the New York City Fire Department (FDNY) testified at an EBT on June 22, 2018 (see NYSCEF Doc. # 86). Her partner on the date of the incident, Douglas Henihan, also testified at an EBT on June 22, 2018 (see NYSCEF Doc. # 87). Beckford and Henihan are certified with the FDNY as basic life support (BLS) EMTs (see id. at 19). Seniorcare paramedics, or advanced life support (ALS) also responded to the scene (see EBT of Mourtaz Mourtazaliev, July 12, 2018, NYSCEF Doc. # 88; EBT of Lancia Hooper, August 10, 2018, NYSCEF Doc. # 89). Beckford and Henihan both testified that their uniforms are navy blue (see Henihan at 22; Beckford at 19). The paramedics' uniform is comprised of green pants and a mint green shirt (see Mourtazaliev at 55).
Plaintiff was conscious, on the ground of the pool deck when the FDNY EMTs arrived on scene (see Beckford at 54, 58; Henihan at 42, 54). A female lifeguard was beside plaintiff (see Henihan at 42; Beckford at 57, 61). The lifeguard told the EMTs that she witnessed plaintiff dive "into the pool, became unresponsive, she took that person out of the pool to the side, started rescue breathing or CPR. The person became responsive, and at that time [EMS] arrived on the scene" (Henihan at 42; see id. at 43; see also Beckford at 61, 63). The lifeguard told paramedic Mourtazaliev that she pulled plaintiff out of the water (see Mourtazaliev at 46 and 48). Firefighters and police officers were present at the scene (see Beckford at 60; Henihan at 46).
Henihan does not recall seeing police officers on the scene (see Henihan at 54).
When EMTs arrived on scene, plaintiff was not placed on a long board, nor was he wearing a cervical collar (see Beckford at 81-82). Advanced Life Support (ALS) Senior Care paramedics Mourtazaliev and Hooper arrived on the scene approximately two minutes after the EMTs (see id. at 67, 80, 91). The EMTs evaluated plaintiff for potential spinal cord injury by conducting a "head-to-toe analysis" (see Henihan at 79-80). A patient "is scanned from head to toe for any possible injuries, complaints, or — just injuries or complaints or visible wound" (id. ). It is a combination of visual scan and verbal assessment (id. ). Mourtazaliev testified that plaintiff was not able to speak English. He spoke Polish. Mourtazaliev testified that he spoke to plaintiff in Russian, and plaintiff was able to understand (see Mourtazaliev EBT at 40-42). According to Mourtazaliev, he was the only person on scene who was able to communicate with plaintiff (see id. ).
Henihan testified that he has no independent recollection of the incident. The ambulance call report where he documented their actions on that day, is the best indication of what transpired (see Henihan at 82-83). Beckford testified that since there was a potential for spinal cord injury, the EMTs and paramedics continued with patient care and stabilized the plaintiff on a long board with a cervical collar (see Beckford at 82, 86-87, 94-95, 99; see also Henihan at 84). He was then transferred to the stretcher, placed in the ambulance and taken to Methodist Hospital (see id. at 104, 108). Beckford testified that neither she, Henihan, the ALS paramedics, nor any other person present on the scene ever attempted to lift plaintiff from the ground by lifting from underneath his arms (see id. at 108-109; see also Henihan at 85-86).
Procedural History
Plaintiff commenced this action by e-filing a summons and verified complaint on June 15, 2016 (see NYSCEF Doc. # 1). A supplemental summons and amended complaint were filed on July 13, 2016 (see NYSCEF Doc. # 2). As for his first cause of action, plaintiff alleges that the City of New York, as owner of the property operated and managed the park and the pool (see id. at ¶¶ 46-49). Plaintiff further alleges that the City employed lifeguards and contracted with or hired North Jersey Pool and American Pool to provide lifeguards and services (see id. at ¶¶ 54-55, 58). Plaintiff alleges that the City was "responsible to own, operate, maintain, manage, supervise and/or control the aforesaid park and pool in a reasonably safe and suitable condition" (see id. at ¶ 67) and that the City owed plaintiff a special duty of care (see id. at ¶ 70).
As for his second cause of action, plaintiff alleges that the City of New York and their EMTs, Henihan and Beckford, failed to properly stabilize, aid, transport, move and render assistance to plaintiff" (id. at ¶ 91) and in doing so, they caused "severe and permanent personal injuries" (id. at ¶ 92). Plaintiff further claims that defendants failed to utilize safety devices while rendering him assistance (see id. at ¶ 93), failed to thoroughly examine and evaluate plaintiff's condition prior to moving him (see id. at ¶ 94) and that the City "owed plaintiff a special duty of care" (id. at ¶ 95).
As for his third cause of action, plaintiff alleges that defendants negligently failed to hire, train and supervise qualified employees to assist him (id. at ¶¶ 104-109).
Discussion
Motion to Dismiss
Defendants move herein to dismiss plaintiff's amended complaint. "When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" ( Bennett v. State Farm Fire & Cas. Co. , 161 AD3d 926, 78 N.Y.S.3d 169 [2 Dept., 2018], quoting Sokol v. Leader , 74 AD3d 1180, 904 N.Y.S.2d 153 [2 Dept., 2010] ). "[T]he pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" ( Trump Vill. Section 4, Inc. v. Bezvoleva , 161 AD3d 916, 78 N.Y.S.3d 129 [2 Dept., 2018], citing Leon v. Martinez, 84 NY2d 83, 614 N.Y.S.2d 972 [1994] ; see also Mirro v. City of New York, 159 AD3d 964, 74 N.Y.S.3d 356 [2 Dept., 2018] ). "[T]he sole criterion is whether factual allegations are discerned from the four corners of the complaint which, taken together, manifest any cause of action cognizable at law" ( Law Offices of Thomas F. Liotti v. Felix, 129 AD3d 783, 9 N.Y.S.3d 888 [2 Dept., 2015], citing Cohen v. Kings Point Tenant Corporation, 126 AD3d 843, 6 N.Y.S.3d 93 [2 Dept., 2015] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" ( Trump Vill. Section 4, Inc. v. Bezvoleva , 161 AD3d 916, supra , quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 799 N.Y.S.2d 170 [2005] ).
"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" ( Garcia v. Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 NY2d 362, 670 N.Y.S.2d 973 [1998] ; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp. , 159 AD3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018] ).
Out-of-Possession Landlord
Defendant, the City of New York, moves to dismiss the first cause of action as against it on the basis that it did not control, manage, operate, maintain or supervise the pool. Plaintiff, in opposition, avers that the City is liable as owner of the premises. This Court notes that defendants Brooklyn Bridge Park Corporation, the Conservancy, North Jersey Pool Management, LLC and American Pool Enterprises, Inc., were present at oral argument but have no position on the motion.
"Premises liability, as with liability for negligence generally, begins with duty" ( Alnashmi v. Certified Analytical Group, Inc. , 89 AD3d 10, 13, 929 N.Y.S.2d 620 ). "[I]t is for the court ... to determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society in general. The scope of any such duty of care varies with the foreseeability of ... possible harm" ( Tagle v. Jakob , 97 NY2d 165, 168, 737 N.Y.S.2d 331, 763 N.E.2d 107 ; see Alnashmi v. Certified Analytical Group, Inc. , 89 AD3d at 13, 929 N.Y.S.2d 620 ). " ‘As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property’ " ( Futter v. Hewlett Sta.Yogurt, Inc. , 149 AD3d 912, 913, 52 N.Y.S.3d 432, quoting Franks v. G & H Real Estate Holding Corp. , 16 AD3d 619, 620, 793 N.Y.S.2d 61 ; see Basso v. Miller , 40 NY2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 ).
( Knight v. 177 W. 26 Realty, LLC , -- AD3d --, 2019 NY Slip Op. 04685 [2 Dept., 2019] ).
"An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct [internal quotation marks omitted]" ( Crosby v. Southport, LLC , 169 AD3d 637, 94 N.Y.S.3d 109 [2 Dept., 2019], quoting Casson v. McConnell, 148 AD3d 863, 49 N.Y.S.3d 711 [2 Dept., 2017] ; see also Gowen v. Gabrielle Realty Holdings, LLC , 140 AD3d 929, 33 N.Y.S.3d 431 [2 Dept., 2016] ).
In the instant case, several facts are not in dispute. The City owns Brooklyn Bridge Park. The City contracted with Brooklyn Bridge Park Corporation to operate the park (see NYSCEF Doc. # 93). Brooklyn Bridge Park Corporation contracted with the Conservancy to operate the pool and adjacent facilities (see NYSCEF Doc. # 94). The Conservancy contracted with North Jersey Pool for operation and management of the pool, including hiring lifeguards (see NYSCEF Doc. # 95).
The City, by providing the above contracts, met their burden. By virtue of the 2015 contract, North Jersey Pool has a duty to operate and manage the pool. In opposition, plaintiff failed to demonstrate that the City retained control over the pool or that the City established control by course of conduct. Plaintiff contends that the language in the contract between the City and Brooklyn Bridge Park Corporation that "[n]othing shall prevent the City, in consultation with the Corporation, from using its own employees or retaining any other firm or person in any capacity in connection with any project or program which is a part of the project" demonstrates that the City retained control. However, this language merely establishes the City's right to retain control.
The City's right to retain control is analogous to an out-of-possession landlord's "right of reentry", which, without more, is insufficient to impose liability. "The mere reservation of a right to reenter the premises to make repairs does not impose an obligation on the landlord to maintain the premises" ( Richer v. JQ II Assocs., LLC , 166 AD3d 692, 88 N.Y.S.3d 190 [2 Dept., 2018] ). "The reservation of the right to enter the premises for inspection and repair may constitute sufficient control to permit a finding that the owner or lessor had constructive notice of a defective condition provided a specific statutory violation exists and there is a significant structural or design defect" ( Lindquist v. C & C Landscape Contractors, Inc. , 38 AD3d 616, 831 N.Y.S.2d 523 [2 Dept., 2007], citing Thompson v. Port Auth. of NY & N.J., 305 AD2d 581, 761 N.Y.S.2d 75 [2003] ; see also Behululi v. 228 Hotel Corp., 172 AD3d 1151, 98 N.Y.S.3d 873 [2 Dept., 2019] ; Chery v. Exotic Realty, Inc., 34 AD3d 412, 824 N.Y.S.2d [2 Dept., 2006] ).
Here, there is no evidence that the City exercised their "right of reentry" to the pool for any reason. Further, there is no evidence that the City had constructive notice of any structural or design defect in the pool (cf. McDermott v. Santos, 171 AD3d 1158, 98 N.Y.S.3d 646 [2 Dept., 2019] ). In the instant case, plaintiff testified that he does not know why he hit his head. He waded into the pool, began to swim, and by the time he reached the deep end of the pool he felt a "burning" and required assistance. Further, plaintiff's arguments that the City was required to be named as an additional insured on the Conservancy's insurance policy or the allegation that the City had Park Enforcement Patrol officers present at the park (see NYSCEF Doc. # 116, Plaintiff's Opposition at ¶ 53) are irrelevant herein. Based on the foregoing, that branch of defendants' motion to dismiss the first cause of action in the amended complaint as against the City of New York is granted.
In McDermott, the Appellate Division, Second Department, reversed the trial court's decision granting summary judgment as against the owner of a premises and swimming pool. Similar to the facts herein, plaintiff in McDermott, allegedly sustained personal injuries after diving into the swimming pool. However, in the instant case, although plaintiff testified that he hit his head, he testified that he did not dive into the pool and therefore he is unsure what caused his injuries. Whereas in McDermott, the plaintiff specifically stated that he hit his head on the wall in the deep end of the pool because the pool wall is slanted. McDermott alleges that the slanted wall constitutes a defective condition in the pool. Furthermore, in that case, the lease obligated the owner to repair "all damages to the property not caused by the tenant or the tenant's guests". Based on the foregoing, the Appellate Division, Second Department, held that the owners failed to establish, prima facie, that the slanted wall in the deep end of their pool was not dangerous or that they lacked constructive notice of the condition".
Proprietary vs. Governmental Function
Defendants move to dismiss the complaint for failure to adequately plead special duty. In the alternative, defendants move for summary judgment, stating that even if special duty is pled, it cannot be proven and further that Henihan and Beckford's actions were discretionary and thus cannot form the basis of municipal liability.
"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" ( Santaiti v. Town of Ramapo , 162 AD3d 921, supra , quoting Applewhite v. Accuhealth, Inc., 21 NY3d 420, 972 N.Y.S.2d 169 [2013] ). "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 the protection and safety of the public pursuant to the general police powers" ( Connolly v. Long Island Power Auth. , 30 NY3d 719, 94 N.E.3d 471 [2018], quoting Turturro v. City of New York , 28 NY3d 469, 45 N.Y.S.3d 874 [2016] ).
It is well established since the Court of Appeals' decision in Applewhite that "[a] municipal emergency response system is ‘a classic governmental, rather than proprietary, function’ " ( Estate of Radvin v. City of New York , 119 AD3d 730, 991 N.Y.S.2d 609 [2014], quoting Applewhite v. Accuhealth, Inc., 21 NY3d 420, supra ). "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" ( Holloway v. City of New York , 141 AD3d 688, 36 N.Y.S.3d 190 [2 Dept., 2016], quoting Applewhite v. Accuhealth, Inc., 21 NY3d 420, supra ; see also Rennix v. Jackson , 152 AD3d 551, 59 N.Y.S.3d 57 [2 Dept., 2017] ; Earle v. Village of Lindenhurst, 130 AD3d 973, 14 N.Y.S.3d 469 [2 Dept., 2015] ).
Plaintiff, in opposition, contends that his claims involve misfeasance by the EMT after affirmatively undertaking care, and therefore the special duty rule should not apply (NYSCEF Doc. # 116 at ¶ 27). Contrary to plaintiff's contention, the Court of Appeals' "precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to the special duty analysis" (see Applewhite v. Accuhealth, Inc., 21 NY3d 420, supra , at FN. 1). The Court of Appeals goes on to state that,
Consistent with this view and our reasoning in Laratro, 8 NY3d 79, 828 N.Y.S.2d 280, 861 N.E.2d 95, we believe that publicly-employed, front-line EMTs and other first responders, who routinely place their own safety and lives in peril in order to rescue others, surely fulfill a government function—certainly no less so than municipal garbage collectors and school playground supervisors (see Nehrbas, 2 NY2d at 194—195, 159 N.Y.S.2d 145, 140 N.E.2d 241 ; Bonner, 73 NY2d at 932, 539 N.Y.S.2d 728, 536 N.E.2d 1147 ; see also Edwards v. City of Portsmouth, 237 Va. at 171, 375 S.E.2d at 750 )—because they exist "for the protection and safety of the public" and not as a "substitute for ... private enterprises" ( Sebastian, 93 NY2d at 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [internal quotation marks omitted] ). The facts of this case reinforce this view since the purportedly negligent EMTs were employees of the City's fire department using City resources in an effort to fulfill the City's obligation to answer an emergency 911 dispatch and attempt to save Tiffany Applewhite's life. And contrary to the belief expressed in the concurring opinions, the fact that private entities operate ambulance services in New York City is not determinative because those companies provide supplemental support for a critical governmental duty rather than vice versa (see Edwards v. City of Portsmouth, 237 Va. at 171—172, 375 S.E.2d at 750 ["the test cannot be whether the same thing is done by private entities, but rather whether, in providing such services, the governmental entity is exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens"] ).
( Applewhite v. Accuhealth, Inc. , 21 NY3d 420, supra ).
Similar to the facts of Applewhite, the EMT defendants herein were certified in basic life support, as opposed to advanced life support paramedics, and cannot be realistically compared to proprietary medical professionals. Accordingly, this Court must next determine whether a defendant owed a special duty to the plaintiff.
Special Duty
"A special duty is a duty to exercise reasonable care toward the plaintiff, and is born of a special relationship between the plaintiff and the governmental entity [internal quotation marks omitted]" ( Cockburn v. City of New York , 129 AD3d 895, 10 N.Y.S.3d 630 [2 Dept., 2015], quoting Flagstar Bank, FSB v. State of New York, 114 AD3d 138, 978 N.Y.S.2d 266 [2013] ).
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 the 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 AD3d 551, supra , quoting Pelaez v. Seide, 2 NY3d 186, 778 N.Y.S.2d 111 [2004] ).
Of these three recognized situations, it is undisputed that the only situation applicable herein is whether the City voluntarily assumed a duty that generated justifiable reliance by the plaintiff (see NYSCEF Doc. # 98 at p 13; NYSCEF Doc. # 116 at ¶ 35; NYSCEF Doc. # 151 at ¶ 16).
A plaintiff must allege facts to demonstrate the existence of a special duty in his or her complaint (see Freeman v. City of New York , 111 AD3d 780, 975 N.Y.S.2d 141 [2 Dept., 2013] ; Estate of Radvin v. City of New York, 119 AD3d 730, supra ; Cockburn v. City of New York, 129 AD3d 895, supra [where the Appellate Division, Second Department, held that 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"] ).
In Cuffy v. City of New York , 69 NY2d 255, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987), [the Court of Appeals] articulated four elements of this special relationship:
"(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 on 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" ( id. at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [emphasis added] ).
Notably, all four elements must be present for a special duty to attach ( Applewhite, 21 NY3d at 431, 972 N.Y.S.2d 169, 995 N.E.2d 131 ).
( Tara N.P. v. W. Suffolk Bd. of Co-op. Educ. Servs. , 28 NY3d 709, 71 N.E.3d 950 [2017] ).
"It is the plaintiffs obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself. 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 [internal quotations omitted]" ( Applewhite v. Accuhealth, Inc. , 21 NY3d 420, supra , citing Lauer v. City of New York, 95 NY2d 95, 711 N.Y.S.2d 112 [2000] ).
Here, it is undisputed that the amended complaint specifically states that the City owed plaintiff "a special duty of care" in both the first and second cause of action (see NYSCEF Doc. # 2 at ¶¶ 70 and 95). However, contrary to plaintiff's contention, merely stating that the City owed him a special duty of care is insufficient. Plaintiff must allege facts which would demonstrate the elements of a special relationship (see Freeman v. City of New York , 111 AD3d 780, supra ; Cockburn v. City of New York, 129 AD3d 895, supra ).
Here, the amended complaint, on its face, does not allege sufficient facts to meet the four prongs of special relationship. However, plaintiff also provided an affidavit in opposition in an attempt to remedy this defect and preserve the cause of action (see Garcia v. Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, supra ). Therefore, the allegations in the complaint, as well as those in the affidavit, "must also be assumed to be true" for the purpose of a CPLR § 3211(a)(7) motion to dismiss (see Trump Vill. Section 4, Inc. v. Bezvoleva , 161 AD3d 916, supra ; Freeman v. City of New York , 111 AD3d 780, supra ).
In the instant case, affording the pleading and affidavit liberal construction, and presuming that all allegations therein are true, plaintiff has properly pled the existence of a special duty. Plaintiff alleged facts to support an assumption by defendants through their actions, of an affirmative duty to act on behalf of plaintiff. Plaintiff alleged that the ambulance responded to the scene to help him (see NYSCEF Doc. # 130, Affidavit at ¶ 2; NYSCEF Doc. # 77, Complaint at ¶ 85) and it was obvious that they came to assist him, examine him and take him to the hospital (see Affidavit at ¶ 5). Further, plaintiff alleged facts that demonstrate that defendants knew that inaction could lead to harm. In his affidavit, plaintiff stated that he was quickly transported to Methodist Hospital upon defendant's arrival (see id. at ¶ 2).
Plaintiff alleged direct contact between defendants and the plaintiff. In the complaint, plaintiff stated that defendants examined him and in doing so, failed to properly stabilize and assist him causing further injuries (see Complaint at ¶¶ 92-94). Further, in his affidavit plaintiff stated that those interactions with EMTs "were not brief but went on for an extended period of time" (Affidavit at ¶ 4). Finally, plaintiff alleged justifiable reliance when he stated in his affidavit that "given EMTs repeated actions at the scene, [he] reasonably believed that they would act properly and not injure" him and that "it is reasonable to rely on them to properly treat you and assume that you do not need to call for further assistance" (id. at ¶ 5). Accordingly, that branch of defendants' motion to dismiss the complaint for failure to plead special duty is denied.
Motion for Summary Judgment
Defendants further move herein for summary judgment. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact" ( Stonehill Capital Mgmt., LLC v. Bank of the W., 28 NY3d 439, 68 N.E.3d 683 [2016], citing Alvarez v. Prospect Hospital , 68 NY2d 320, 501 N.E.2d 572 [1986] ).
Such a motion must be supported "by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions". To make a prima facie showing, the moving party must "demonstrate its entitlement to summary judgment by submission of proof in admissible form". Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts". "In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party". "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist". Accordingly, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned". "[W]here credibility determinations are required, summary judgment must be denied" [internal citations omitted]. ( Bank of NY Mellon v. Gordon , 171 AD3d. 197, 97 N.Y.S.3d 286 [2 Dept., 2019] ).
Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle , 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 NY3d 499, 965 N.E.2d 240 [2012] ). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 AD3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital , 68 NY2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 11 N.E.3d 693 [2014] ). "A motion for summary judgment ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ " ( Chimbo v. Bolivar , 142 AD3d 944, 37 N.Y.S.3d 339 [2 Dept., 2016], quoting Ruiz v. Griffin, 71 AD3d 1112, 898 N.Y.S.2d 590 [2 Dept., 2010] ).
Here, defendants move for summary judgment on two grounds. First, defendants allege that even if plaintiff sufficiently pled the existence of a special duty, as discussed at length above, one cannot be proven. Secondly, defendants argue that Henihan and Beckford's actions were discretionary and thus cannot form the basis of municipal liability under the governmental immunity defense.
As stated above, the Court of Appeals in Cuffy, delineated four elements or prongs to establish a special relationship:
(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 on 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
( Cuffy v. City of New York , 69 NY2d 255, supra ).
Here, it is undisputed by the parties that the second and third prongs have been established. It is clear from the evidence provided, that defendants had knowledge that inaction could lead to harm. Both Henihan and Beckford testified that they recognized the possibility of a spinal cord injury. Further, there is no question that defendants had direct contact with plaintiff. Henihan and Beckford responded to the scene, and in conjunction with the paramedics, evaluated plaintiff for potential spinal cord injury and conducted a full "head-to-toe analysis" (see Henihan at 79-80). At issue herein are prong one, whether an assumption by the defendants, through promises or actions, of an affirmative duty to act on plaintiff's behalf, and prong four, whether plaintiff justifiably relied on the defendants' affirmative undertaking.
Defendants contend that plaintiff is unable to establish the first and fourth prongs. "Specifically, the City has demonstrated that the City EMTs did not make any assurances to him upon which Plaintiff has justifiably relied to his detriment by foregoing other viable avenues of assistance" (NYSCEF Doc. # 151 at ¶ 23). Defendants argue that performance of their EMT duties, alone, is not enough to rise to the level of assumption of an affirmative duty (see id. at ¶ 27). Defendants further maintain that due to the language barrier between plaintiff and EMS, "EMTs did not make any affirmative statements to Plaintiff that amounted to the level of a promise or assurance" and therefore "he could not have possibly relied on any such assurance to his detriment" (id. at ¶¶ 27 and 29).
Plaintiff, in opposition, argues that the City misinterpreted the case law with regard to Cuffy's four-part test (see NYSCEF Doc. # 116 at ¶ 37). Plaintiff maintains that the first prong can be met by the actions of the defendants and does not require an affirmative promise (see id. ). Plaintiff also argues that the City's focus on the potential language barrier is too narrow an approach and would preclude establishing a special duty "where there was any sort of language barrier between the parties, where a Plaintiff was hearing impaired, where the City employee was nonverbal, or where a Plaintiff had difficulty understanding the City employee's verbal communications due to a health issue or geographic barrier" (id. at ¶ 38).
In the instant case, defendants failed to meet their burden and establish that the record before this Court cannot establish all four Cuffy prongs of a special relationship, as questions of fact exist. Based on the evidence submitted, there is a question of fact as to whether an assurance could have been made to the plaintiff due to the language barrier between plaintiff and defendants. In support of their position, defendants rely on plaintiff's EBT, wherein he testified that no one said they would provide him with any assistance in a language that he could understand before he got to the hospital (see Plaintiff EBT at 112). This Court notes that plaintiff's testimony on this topic is extremely unclear, as numerous objections were made and the question was rephrased a number of times (see id. at 107-116). Defendants also rely on the EBT testimony of paramedic Mourtazaliev, that he was the only responder at the scene who could communicate with plaintiff (see Mourtazaliev EBT at 42).
Henihan testified that in following BLS protocol and evaluating plaintiff for potential spinal cord injury, the defendants conducted a "head-to-toe analysis", which combines a visual scan from head to toe for any possible injuries and a verbal assessment [emphasis added] (see Henihan at 79-80). Based on this testimony, defendants were able to effectively communicate. Furthermore, it contradicts plaintiff's own testimony that he was lifted after "providing information" to someone and that he spoke to a police officer (see Plaintiff EBT at 31). Defendants testified that this work up was a group effort of the EMTs and paramedics who arrived only two minutes later to the scene. A question of fact remains as to whether defendants, if anyone, were able to communicate with the plaintiff and whether assurances was made.
Even assuming, arguendo, that defendants did meet their burden, plaintiff's affidavit, submitted in opposition, states that he was able to understand some of the questions posed and to respond to the EMT's questions. Contrary to defendants' contention, it is not evident that plaintiff's affidavit contradicts his EBT testimony, since the testimony on the topic of language and communication was so obscure. Inasmuch as all four of the prongs in Cuffy v. City of New York are required to establish a special duty, this Court need not continue to consider whether plaintiff justifiably relied, to his detriment and need not consider the remainder of defendants' motion for summary judgment.
Conclusion
Accordingly, that portion of defendants' motion to dismiss the first cause of action of the amended complaint as against the City of New York is granted. That portion of defendants' motion to dismiss plaintiff's third cause of action for negligent supervision, hiring and retention is granted, without opposition. Those portions of defendants' motion to dismiss the second cause of action for failure to plead special duty and for summary judgment are denied. Anything not decided herein is denied.
The foregoing constitutes the decision and order of this Court.