Kralkin v. City of N.Y.

204 A.D.3d 772

166 N.Y.S.3d 663

Yaugeni KRALKIN, appellant,

v.CITY OF NEW YORK, et al., respondents.

2019–11025

Index No. 151302/17

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

Submitted—January 24, 2022

April 13, 2022

The Chernyy Law Office, P.C., Staten Island, NY (Borislav Chernyy of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Jeremy W. Shweder and Jamison Davies of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated August 27, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when he unbuckled his restraints and jumped from an ambulance while being transported to a hospital. The Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint, as the defendants established their prima facie entitlement to judgment as a matter of law and the plaintiff failed to raise a triable issue of fact in opposition.

Under the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general (see McLean v. City of New York, 12 N.Y.3d 194, 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ; Dixon v. City of New York, 120 A.D.3d 751, 991 N.Y.S.2d 463 ). A public employee's discretionary acts may not result in a municipality's liability even when the conduct is negligent. In other words, even if a plaintiff establishes all of the elements of a negligence cause of action, a municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority (see Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356 ). Discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results, whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result (see Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 ; Devlin v. City of New York, 193 A.D.3d 819, 148 N.Y.S.3d 149 ).

A municipal emergency response system, including ambulance assistance rendered by first responders such as the emergency medical technicians (hereinafter EMTs) employed by the Fire Department of the City of New York in this case, is a classic governmental, rather than proprietary, function (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Xenias v. City of New York, 191 A.D.3d 453, 142 N.Y.S.3d 148 ; Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d 1264, 109 N.Y.S.3d 111 ). The actions taken by the EMTs in this case were discretionary (see Kinsey v. City of New York, 141 A.D.3d 420, 36 N.Y.S.3d 8 ; Dixon v. City of New York, 120 A.D.3d at 753, 991 N.Y.S.2d 463 ; DiMeo v. Rotterdam Emergency Med. Servs., Inc., 110 A.D.3d 1423, 974 N.Y.S.2d 178 ). The EMTs testified at their depositions that they are trained to use their discretion in responding to each call, based on the individual patient. The EMTs here exercised reasoned judgment when they determined that the intoxicated plaintiff should be brought to the hospital as he could be a danger to himself or others. Because the actions of...