Egan v. Omniflight Helicopters, Inc.

• Decision Date: 26 February 1996
• Citation: 639 N.Y.S.2d 77,224 A.D.2d 653
• Parties: Sean EGAN, etc., Respondent, v. OMNIFLIGHT HELICOPTERS, INC., Defendant, Southern Tier Air Rescue, Inc., d/b/a S.T.A.R., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 77

639 N.Y.S.2d 77

224 A.D.2d 653

Sean EGAN, etc., Respondent, v. OMNIFLIGHT HELICOPTERS, INC., Defendant, Southern Tier Air Rescue, Inc., d/b/a S.T.A.R., Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 26, 1996.

Kwiatkowski & Ryan, Floral Park (John E. Ryan, of counsel), for appellant.

Scalzi & Nofi, Melville (Chris P. Termini, of counsel), for respondent.

Before ROSENBLATT, J.P., and SULLIVAN, COPERTINO, SANTUCCI and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries and wrongful death, the defendant Southern Tier Air Rescue, Inc., appeals from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Hall, J.), dated December 20, 1994, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as it is asserted against the defendant Southern Tier Air Rescue, Inc.

The defendant Southern Tier Air Rescue, Inc. (hereinafter STAR), is a provider of emergency medical services and patient care. In furtherance of providing emergency medical services, STAR entered into an agreement with the defendant Omniflight Helicopter, Inc. (hereinafter Omniflight), whereby Omniflight agreed to provide air transportation for STAR's emergency medical service personnel and patients. The plaintiff's decedent, a helicopter pilot employed by Omniflight, was killed in a crash while piloting a flight for STAR. The plaintiff, as administrator of the decedent's estate, commenced this action alleging, inter alia, that STAR was negligent in allowing the decedent to pilot the subject helicopter when STAR's agents knew or should have known that the decedent lacked the necessary piloting skills and aptitude.

The Supreme Court improperly denied STAR's motion for summary judgment based on a contract provision which, in effect, allowed STAR to compel Omniflight to remove Omniflight employees from active duty if STAR concluded that "differences" between Omniflight employees and STAR employees "prevent[ed] the safe and efficient operation of the helicopter". Of course, "elemental to any recovery in negligence" is that the tortfeasor owe a duty of reasonable care to an injured party (Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 584, 611 N.Y.S.2d 817, 634 N.E.2d 189; Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128; Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 502 N.E.2d 964). This is a legal issue for the court to resolve (Palka v. Servicemaster Mgt. Servs. Corp., supra, at 585, 611 N.Y.S.2d 817, 634 N.E.2d 189), with the determination "resting on policy considerations of whether plaintiff's interests are entitled to legal...