Ryan v. Town of Riverhead

117 A.D.3d 707

985 N.Y.S.2d 584

2014 N.Y. Slip Op. 03250

Anne L. RYAN, etc., et al., plaintiffs-respondents,

v. TOWN OF RIVERHEAD, et al., appellants,Riverhead Volunteer Ambulance Corp., Inc., defendant-respondent, et al., defendants.

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

May 7, 2014.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for appellants.

Davis & Ferber, LLP, Islandia, N.Y. (Cary M. Greenberg of counsel), for plaintiff-respondent Anne L. Ryan.

Johannesen & Johannesen, PLLC, Rocky Point, N.Y. (Richard Johannesen and Annmarie R. Johannesen of counsel), for plaintiff-respondent Glenn Meyer.

Thomas G. Nolan, Aquebogue, N.Y., for plaintiff-respondent June T. Behr.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and COLLEEN D. DUFFY, JJ.

In a consolidated action to recover damages for personal injuries, the defendants Town of Riverhead and Eric Maas appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated January 3, 2013, as denied that branch of their motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the Town of Riverhead, denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Glenn Meyer, as executor of the estate of Joseph Wowak, against Eric Maas, and granted the cross motion of the plaintiff Glenn Meyer, as executor of the estate of Joseph Wowak, for leave to amend the complaint and the bill of particulars to add a cause of action alleging a violation of Vehicle and Traffic Law § 1104 against the Town of Riverhead and Eric Maas.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Town of Riverhead and Eric Maas which was for summary judgment dismissing the complaint insofar as asserted against the Town of Riverhead by the plaintiffs Anne L. Ryan, as administrator of the estate of William Stone, and Anne L. Ryan, individually, and June Behr, as administrator of the estate of Heidi Behr, and June Behr, individually, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

This appeal arises out of an automobile accident that occurred on the afternoon of May 3, 2005, on Route 25, a two-way road running east and west, in the Town of Riverhead. An ambulance operated by the defendant Eric Maas, a member of the defendant Riverhead Volunteer Ambulance Corp. (hereinafter the VAC), and owned by the Town of Riverhead, was driving in the westbound lane and carrying Joseph Wowak, a patient, and William Stone and Heidi Behr, both emergency medical technicians and members of the VAC, when it swerved to avoid a dump truck driven by the defendant John White in the westboundlane ahead of it. The ambulance collided with a tree on the side of the road. As a result, Wowak was injured and Stone and Behr were killed.

Wowak commenced this action against Maas and the Town (hereinafter together the Town defendants), the VAC, and White to recover damages for injuries he sustained in the accident. Subsequently, Wowak died of unrelated causes and the plaintiff Glenn Meyer was appointed as executor of his estate (hereinafter the Wowak estate). The plaintiff Anne L. Ryan, individually and in her capacity as administrator of Stone's estate, and the plaintiff June Behr, individually and in her capacity as administrator of Heidi Behr's estate, each commenced separate actions against the Town defendants and White and his business, Wine Services, Inc. The defendants cross-claimed against one another.

The Town defendants moved for summary judgment dismissing the complaints and all cross claims insofar as asserted against them on the grounds, inter alia, that Ryan's and Behr's claims were barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law § 19, that Maas was engaged in an emergency operation pursuant to Vehicle and Traffic Law § 1104 at the time of the accident and a DMV determination after an investigatory hearing that Maas was not reckless collaterally estopped the plaintiffs from relitigating that issue, and that Maas was confronted with an emergency situation not of his own making when White suddenly made a left turn in front of the ambulance without signaling and in violation of his obligation to yield the right-of-way. Thereafter, the Wowak estate cross-moved for leave to amend its complaint and bill of particulars to add a cause of action against the Town defendants alleging that Maas acted with reckless disregard for the safety of others in violation of Vehicle and Traffic Law § 1104.

In the order appealed from, the Supreme Court, inter alia, consolidated the three actions for purposes of deciding the motion and cross motion, denied that branch of the Town defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the Town, denied that branch of the Town defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by the Wowak estate against Maas, and granted the Wowak estate's cross motion for leave to amend the complaint and its bill of particulars to assert a cause of action against the Town defendants alleging that Maas's conduct violated Vehicle and Traffic Law § 1104.

The Supreme Court should have awarded summary judgment dismissing the complaint insofar as asserted against the Town by Ryan and Behr. Since Ryan and Behr seek to recover damages in their capacities as the administrators of their decedents' estates and in their individual capacities as persons “entitled to recover damages” on account of line-of-duty injuries sustained by their decedents while serving as volunteer ambulance workers, and the Town is among those entities protected by the statute, Ryan's and Behr's causes of action insofar as asserted against the Town are barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law § 19 (Volunteer Ambulance Workers' Benefit Law § 19; see Brady v. Village of Malverne, 76 A.D.3d 691, 692, 907 N.Y.S.2d 68). Contrary to Ryan's and Behr's contentions, they failed to raise a triable issue of fact as to whether the Town fell into the category of a “political subdivision regularly served” by their decedents' ambulance company (Volunteer Ambulance Workers' Benefit Law § 19[2]; seeVolunteer Ambulance Workers' Benefit Law § 3[10]; Raffone v. Town of Islip, 85 A.D.2d 597, 598, 444 N.Y.S.2d 700).

*710 “Leave to amend the pleadings ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463...