Estate of Radvin v. City of N.Y.

• Decision Date: 16 July 2014
• Parties: ESTATE OF Gail RADVIN, et al., respondents-appellants, v. CITY OF NEW YORK, et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 730
991 N.Y.S.2d 609
2014 N.Y. Slip Op. 05302

ESTATE OF Gail RADVIN, et al., respondents-appellants,
v.
CITY OF NEW YORK, et al., appellants-respondents.

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

July 16, 2014.

[991 N.Y.S.2d 610]

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers, Amy G. London, and Jonathan David Moran of counsel), for appellants-respondents.

Warren S. Hecht, Forest Hills, N.Y., for respondents-appellants.

RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action, inter alia, to recover damages for wrongful death, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered December 26, 2012, as denied that branch of their motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the first, fourth, and fifth causes of action in the amended complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the second and third causes of action in the amended complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, and

[991 N.Y.S.2d 611]

that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(7) to dismiss the first, fourth, and fifth causes of action in the amended complaint is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

On December 27, 2010, Gail Radvin (hereinafter the decedent) was having difficulty breathing and her daughters, Faith Radvin and Robin Martucci, made repeated telephone calls to the 911 emergency number for an ambulance. At the time, the decedent was in Faith Radvin's apartment. Initially, a 911 operator could not locate an ambulance to respond to the call as a result of recent snowfall that was blocking the streets. Robin Martucci was twice told that “there was nothing available in the area.” Eventually, an ambulance was located and the 911 operator indicated to the decedent's daughters that the ambulance would be there “as fast as they can.” An ambulance with emergency services personnel subsequently arrived and took the decedent to the hospital, where she was pronounced dead a short time later.

Thereafter, the decedent's daughters, individually and as co-executors of the decedent's estate (hereinafter together the plaintiffs), commenced this action to recover damages for wrongful death against the defendants City of New York, City of New York Sanitation Department, and New York City Fire Department (hereinafter collectively the defendants). The first and fourth causes of action allege that the defendants were negligent in responding to the plaintiffs' 911 call. The second and third causes of action allege that the defendants failed to prepare for, and respond to, the snowstorm. The fifth cause of action asserts a derivative claim to recover damages for, among other things, loss of services.

The defendants moved, in effect, to dismiss the amended complaint pursuant to CPLR 3211(a). In the order appealed from, the Supreme Court granted the defendants' motion to the extent that it directed the dismissal, pursuant to CPLR 3211(a)(7), of the second and third causes of action in the amended complaint. The defendants appeal and the plaintiffs cross-appeal.

As a general rule, “a municipality may not be held liable to a person injured by the breach of a duty owed to the general public, such as a duty to provide police protection, fire protection or ambulance services” (Etienne v. New York City Police Dept., 37 A.D.3d 647, 649, 830 N.Y.S.2d 349). When a negligence cause of action is asserted against a municipality, and the municipality's actions are proprietary in nature, the municipality is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties ( see ...