Applewhite v. Accuhealth, Inc.

• Citation: 934 N.Y.S.2d 164,90 A.D.3d 501,2011 N.Y. Slip Op. 09002
• Court: New York Supreme Court — Appellate Division
• Decision Date: 15 December 2011
• Parties: Tiffany APPLEWHITE, etc., et al., Plaintiffs–Appellants, v. ACCUHEALTH, INC., et al., Defendants,City of New York, Defendant–Respondent.

2011 N.Y. Slip Op. 09002
90 A.D.3d 501
934 N.Y.S.2d 164

Tiffany APPLEWHITE, etc., et al., Plaintiffs–Appellants,
v.
ACCUHEALTH, INC., et al., Defendants,City of New York, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 15, 2011.

[934 N.Y.S.2d 166]

Murray S. Axelrod, New York, for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondent.

MAZZARELLI, J.P., ANDRIAS, CATTERSON, MOSKOWITZ, JJ.

[90 A.D.3d 501] Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 30, 2010, that in an action for personal injuries sustained as a result of allegedly negligent treatment rendered by emergency personnel of defendant City of New York, sued herein as Emergency Medical Service and the City of New York, granted said defendant's motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated as against the City of New York.

[90 A.D.3d 502] The record demonstrates that plaintiffs filed the note of issue on May 8, 2009. This required the City (defendant) to file a motion for summary judgment no later than 120 days after the filing of the note of issue, i.e., September 5, 2009 (CPLR 3212[a] ). However, because September 5th was a Saturday, and Monday, September 7th, was Labor Day ( see General Construction Law § 25–a [1] ), the motion defendant served on September 8, 2009, was timely.

The facts underlying this case are discussed in a decision on a prior appeal (81 A.D.3d 94, 915 N.Y.S.2d 223 [2010] ). Accordingly, this decision will relate only those facts necessary to a full understanding of this decision.

The infant plaintiff suffered anaphylactic shock during a home infusion of medication called Solu–Medrol. Her mother called 911 while the nurse who had been giving the home infusion commenced CPR. Two emergency medical technicians (EMTs) arrived, but only in a Basic Life Support (BLS) ambulance because an Advanced Life Support (ALS) ambulance was not available at the time the mother placed her call. While one of the EMTs assisted the nurse with CPR, the other left the apartment to request an ALS ambulance, because the ambulance that arrived first lacked a stretcher, a valve mask and a defibrillator. During that time, the mother made a second call to 911. Some time thereafter, paramedics arrived in an ALS ambulance. These paramedics administered epinephrine and oxygen to infant plaintiff and then transported her to the hospital. She survived, but suffered significant brain damage.

Plaintiffs commenced this action against the City of New York because it administered the ambulance service through the fire department. After plaintiffs filed the note of issue, defendant moved for summary judgment. The motion court granted that motion. Plaintiffs appealed.

As a threshold issue, we must determine the capacity in which the City was acting. When the City acts in a proprietary capacity, it is subject to the same principles of tort law as a private entity ( Miller v. State, 62 N.Y.2d 506, 511, 478 N.Y.S.2d 829, 467 N.E.2d 493 [1984] ). By contrast, discretionary acts, such as the failure to issue a license, can never be a basis for damages ( McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ). Similarly, public entities are not usually liable for claims arising out of the performance of a government function (ministerial acts) ( id.). “A municipality is not liable to a

[934 N.Y.S.2d 167]

person injured by the breach of a duty—like the duty to provide police protection, fire protection or ambulance service—that the municipality owes to the general public” ( Laratro v. City of New York, 8 N.Y.3d 79, 83, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006] ).

[90 A.D.3d 503] However, liability for ministerial acts may arise where there exists a special relationship between the injured party and the public entity that creates a special duty of protection to the injured party ( see McLean, 12 N.Y.3d at 201, 878 N.Y.S.2d...