Marks-Barcia v. Vill. of Sleepy Hollow Ambulance Corps

• Citation: 125 N.Y.S.3d 116,183 A.D.3d 883
• Decision Date: 27 May 2020
• Docket Number: 2017–03681,Index No. 69941/14
• Parties: Kathlene MARKS–BARCIA, etc., Appellant, v. VILLAGE OF SLEEPY HOLLOW AMBULANCE CORPS, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 883

125 N.Y.S.3d 116

Kathlene MARKS–BARCIA, etc., Appellant,

v.VILLAGE OF SLEEPY HOLLOW AMBULANCE CORPS, et al., Respondents.

2017–03681

Index No. 69941/14

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

Argued—November 18, 2019

May 27, 2020

Spolzino, Smith, Buss & Jacobs, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for appellant.

Morris Duffy Alonso & Faley (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser ], of counsel), for respondents.

MARK C. DILLON, J.P., SHERI S. ROMAN, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

In the early morning hours of September 15, 2013, the plaintiff awoke to the sound of her husband, Nicholas A. Barcia, gasping for air. She called the 911 emergency number, and Police Officer Craig Kelly of the defendant Village of Sleepy Hollow Police Department (hereinafter SHPD) answered her call. The plaintiff informed Officer Kelly that her husband was having a medical emergency, to which Officer Kelly responded, "Okay, we'll have it right there." Officer Kelly dispatched two police officers, one of whom was a certified emergency medical technician (hereinafter EMT), to the plaintiff's home. The officers arrived within minutes, connected the plaintiff's husband to an automated external defribulator, and began performing CPR. Officer Kelly also radioed the defendant Village of Sleepy Hollow Ambulance Corps (hereinafter SHAC), and requested that an ambulance respond to the plaintiff's home; however, he received a response that no EMT was available. Officer Kelly then called "60 Control" (or "mutual aid"), which is an outside agency which would provide ambulances, to request an ambulance. During this time, the plaintiff called the 911 emergency number again to check on the ambulance, and was told the ambulance was coming. The plaintiff also called the telephone company operator in an effort to get an ambulance from a nearby hospital, but was transferred to a Tarrytown police officer who advised her that an ambulance would be there shortly. An ambulance arrived at the plaintiff's home 20 minutes after the initial 911 call and approximately 7–8 minutes after the second 911 call. Despite the efforts of the police officers to revive the plaintiff's husband using the automated external defribulator, he died in his home.

The plaintiff commenced this action against SHAC, SHPD, and the Village of Sleepy Hollow. She alleged that the defendants were negligent in failing to provide an ambulance to her home in a timely manner and in failing to notify her that there was limited ambulance coverage available. The defendants moved for summary judgment dismissing the complaint. In an order dated April 3, 2017, the Supreme Court granted the defendants' motion, and the plaintiff appeals.

" ‘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’ " ( Turturro v. City of New York , 28 N.Y.3d 469, 477, 45 N.Y.S.3d 874, 68 N.E.3d 693, quoting Applewhite v. Accuhealth, Inc. , 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs. , 28 N.Y.3d 709, 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 ). "A government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’ " ( Applewhite v. Accuhealth, Inc. , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131, quoting Sebastian v. State of New York , 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 ; see Granata v. City of White Plains , 120 A.D.3d 1187, 1188, 993 N.Y.S.2d 47 ). "In contrast, a municipality 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" ( Applewhite v. Accuhealth, Inc. , 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted] ). If it is determined that a municipality was exercising a governmental function at the time of the alleged negligence, it will not be held liable unless it owed a "special duty" to the injured party ( id. at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs. , 28 N.Y.3d at 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 ; Turturro v. City of New York , 28 N.Y.3d at 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 ).

Here, we agree with the Supreme Court's determination that the defendants were engaged in a governmental function as a provider of emergency medical services pursuant to a municipal emergency response 911 system, such that the defendants could not be held liable to the plaintiff unless they owed her a special duty (see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs. , 28 N.Y.3d at 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 ; Applewhite v. Accuhealth, Inc. , 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Halberstam v. Port Auth. of N.Y. & N.J. , 175 A.D.3d 1264, 109 N.Y.S.3d 111 ). One way to establish the existence of a special duty is by showing that the defendant assumed a "special relationship" with the plaintiff beyond the duty that is owed to the public generally ( Applewhite v. Accuhealth, Inc. , 21 N.Y.3d at 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted]; see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs. , 28 N.Y.3d at 714, 49 N.Y.S.3d 362, 71 N.E.3d 950 ). "The plaintiff has the heavy burden of establishing the...