Palmer v. City of Yonkers, 97 CIV. 7410(BDP).
| Decision Date | 15 October 1998 |
| Docket Number | No. 97 CIV. 7410(BDP).,97 CIV. 7410(BDP). |
| Citation | 22 F.Supp.2d 283 |
| Parties | Kim PALMER, individually and as Administrator of the estate of Frank Palmer, Plaintiff, v. THE CITY OF YONKERS, City of Yonkers Fire Department, Empress Ambulance Service, Inc., John Doe, Numbers 1,2,3 & 4, and Jane Doe, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Donna L. Dambrot, Westchester Putnam Legal Services, Shelby Green, Pace University School of Law, White Plains, NY, for Plaintiff.
Ching Wah Chin, Corporation Counsel, City of Yonkers, Yonkers, Jane E. Motyka, Alan I. Lamer, Elmsford, NY, for Defendant Empress.
Plaintiff Kim Palmer brought this suit, individually and as the administrator of the estate of Frank Palmer, her husband, against the City of Yonkers ("Yonkers" or the "City"), the City of Yonkers Fire Department ("Fire Department"), Empress Ambulance Service, Inc. ("Empress"), John Doe 1,2,3,4 and Jane Doe (collectively the "defendants")1 for violations of rights under the Fourteenth Amendment of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA"), the Federal Rehabilitation Act, 29 U.S.C. § 794, et. seq. ("FRA"), the Civil Rights Act of 1871, 42 U.S.C. § 1983 and various state laws.2 Defendants have moved pursuant to Fed.R.Civ.P. Rule 56 for summary judgment.3 For the reasons stated below, the motion is granted.
Pursuant to an agreement ("Agreement") with Yonkers dated September 1, 1993, Empress provides ambulance services to Yonkers residents. At approximately 5:00 a.m. on July 9, 1996, Kim Palmer found her husband, Frank Palmer, who had Acquired Immune Deficiency Syndrome ("AIDS"), laying nude on the kitchen floor in his diarrhea feces conscious but with a fever. Palmer called her husband's Hospice and was told they would arrange transportation to a hospital. When the transportation did not arrive after an half-hour, Palmer again called the Hospice, and when the transportation still did not arrive, she called 911. Palmer told the 911 operator that had husband had AIDS, had fallen, and that she needed help.
Approximately fifteen minutes after the call, three men (John Does, Numbers 1,2 & 3) from the Yonkers Fire Department arrived. The Fire Department participates in the First Responder Program which provides on the scene basic first aid care. The Fire Department does not operate ambulances, and state and federal law do not permit the use of fire trucks as ambulances. Palmer asked the firemen to take her husband to the hospital and the firemen responded that the paramedics and an ambulance would be there shortly. In the interim, they administered oxygen to Mr. Palmer and soon departed. A couple of minutes later paramedics from Empress (Jane Doe and John Doe, Number 4) arrived.
Palmer explained to Empress what was wrong with her husband and requested transportation to the hospital. John Doe Number 4 responded that her husband's condition reflected the usual course with AIDS and the hospital would only rehydrate him, keep him for a couple of hours and she would then have to bring him back home. The Empress paramedics moved Mr. Palmer to the couch, but refused to take him to the hospital. Thereafter, Palmer called a taxicab that transported her husband to the Westchester County Medical Center arriving about 11:30 a.m. Palmer's husband stayed at the hospital for approximately three weeks. He was then transferred to a nursing facility where he remained until his death on May 29, 1997.
Palmer brings this suit for declaratory and injunctive relief and monetary damages for alleged violations of the Fourteenth Amendment of the Constitution, the ADA, the FRA and 42 U.S.C. § 1983. She also asserts various state law claims. Specifically, Palmer claims the defendants discriminated against her husband by refusing to provide ambulance services because of his AIDS condition. On August 28, 1997 Empress filed for protection pursuant to Chapter 11 of the Bankruptcy Code and was dismissed from this action. See 11 U.S.C. § 362(a)(1). This motion considers whether the Fire Department violated a duty to Palmer and whether the City is vicariously liable for Empress' conduct.
A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir.1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). The court is to perform "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F.Supp. 1079, 1082 (S.D.N.Y.1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Hayes, 84 F.3d 614 at 619.
In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir.1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996). The Court must not weigh evidence or assess the credibility of potential witnesses, for such evaluations are to be conducted solely by the jury. Hayes, 84 F.3d at 619; United States v. Rem, 38 F.3d 634, 644 (2d Cir.1994); Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir.1994). A finding of disputed material facts that could reasonably be resolved in favor of either party precludes summary judgment. Wernick, 91 F.3d at 382 (quoting Anderson v. Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505).
Generally, the burden is on the moving party to demonstrate that there is no genuine dispute respecting any material fact and that he is entitled to judgment as a matter of law. In re State Police Litigation, 88 F.3d at 123; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223 (2d Cir.1994). To successfully oppose a motion for summary judgment, the responding party "must set forth facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). A summary judgment motion cannot be defeated through mere speculation or conjecture. Pollis v. New School for Social Research, 829 F.Supp. 584, 586 (S.D.N.Y. 1993) ().
Palmer contends the City, through its servants and agents (i.e. Empress and the Fire Department), improperly refused to provide emergency medical care or ambulance services to her husband, and consequently is vicariously liable under the ADA,4 FRA,5 and the common law.
The general rule is that a party who retains an independent contractor, as distinguished from an employee, is not liable for the independent contractor's negligence. Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712 (1993). Consequently, the City's liability hinges, in large part, on whether Empress is an employee or an independent contractor. Under New York law, the distinction is based on the fact that the former undertakes to achieve an agreed result and to accept the directions of the employer, and the latter agrees to achieve a certain result but is not subject to the employer's control over the means used. Thus, the crucial determinant is the right of control in respect of the manner in which his work is to be done. Chaiken v. VV Publishing Corp., 119 F.3d 1018, 1033 (2d Cir.1997) (internal quotation marks omitted)(quoting In re Morton, 284 N.Y. 167, 172, 30 N.E.2d 369 (1940)).
In determining whether such control exists, our Circuit considers such factors as: (1) whether the purported employee is engaged in a distinct occupation, (2) whether the work is usually done under direction or by an unsupervised specialist, (3) the skill involved, (4) who provides the instrumentalities and place of performance, (5) the length of employment, (6) whether payment is by time or by the job, (7) whether the work is part of the employer's regular business and/or necessary to it, and (8) the intent of the parties creating the relationship. Chaiken, 119 F.3d at 1034 (citing Hilton Int'l Co. v. NLRB, 690 F.2d 318, 320 (2d Cir.1982)).
On consideration of these factors, we find that Empress was an independent contractor. While the City set basic standards under the Agreement, it was not in the business of providing ambulance services, and Empress provided all personnel, vehicles and equipment. Palmer concedes that Yonkers did not actually hire, supervise, train or manage any personnel of Empress Ambulance. See Defendants City of Yonkers and City of Yonkers Fire Department's Statement of Undisputed Facts, ¶ 2. This assertion must be accepted because Palmer's opposition contains no affidavits or otherwise admissible contradictory facts. See Fed.R.Civ.P. Rule 56(e); Local Civil Rule 56.1. Further, Empress received no payments from the City and the Agreement expressly provides that Empress is an independent contractor.
Both parties concede general vicarious liability principles apply under the ADA. Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1068-69 (5th Cir.1995), cert. denied, 516 U.S. 1045, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996). While it is clear that ordinarily a principal is not liable for the acts of an independent contractor, there are, of course, numerous exceptions to this general rule. Chainani v. Board of Education of the City of...
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