Walker-Rodriguez v. City of New York

2024 NY Slip Op 05237

Anita Walker-Rodriguez, et al., respondents, v. City of New York, et al., appellants, et al., defendants.

No. 2019-11168, Index No. 522819/16

Supreme Court of New York, Second Department

October 23, 2024

Muriel Goode-Trufant, Acting Corporation Counsel, New York, NY (Richard Dearing and Ingrid R. Gustafson of counsel), for appellants.

Deutsch Law P.C., Scarsdale, NY (Lawrence M. Deutsch of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, BARRY E WARHIT, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries etc., the defendants City of New York, New York City Police Department, and New York City Fire Department Emergency Medical Services appeal from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated August 22, 2019. The order denied those defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants City of New York, New York City Police Department, and New York City Fire Department Emergency Medical Services which was for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the defendants City of New York, New York City Police Department, and New York City Fire Department Emergency Medical Services.

On November 2, 2015, the plaintiff Dynell Fountaine called 911 to request an ambulance for his wife, the plaintiff Anita Walker-Rodriguez, who was experiencing difficulty breathing. Based upon the information received from Fountaine, a 911 dispatcher sent a "Basic Life Support" (hereinafter BLS) ambulance to the scene, as opposed to an "Advanced Life Support" (hereinafter ALS) ambulance. Within minutes, the BLS ambulance, staffed by emergency medical technicians (hereinafter EMTs), arrived at the plaintiffs' apartment. The EMTs assessed Walker-Rodriguez, who was unresponsive, and promptly contacted a dispatcher to request an ALS ambulance, staffed by paramedics. After learning that the ALS ambulance was approximately 12 minutes away, the EMTs decided to continue treating Walker-Rodriguez in the apartment while they waited for the paramedics to arrive, instead of immediately transporting her to a nearby hospital, which was 5 minutes away. Upon arrival, the paramedics rendered treatment to Walker-Rodriguez, but attempts at intubation were unsuccessful. The EMTs and paramedics ultimately placed Walker-Rodriguez in an ambulance and transported her to the nearby hospital where she was successfully intubated. Walker-Rodriguez allegedly suffered injuries, including brain damage, as a result of the incident.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries against the defendants City of New York, New York City Police Department, and New York City Fire Department Emergency Medical Services (hereinafter collectively the defendants), among others. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them. By order dated August 22, 2019, the Supreme Court denied the defendants' motion. The defendants appeal.

"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" (Canberg v County of Nassau, 214 A.D.3d 943, 944 [internal quotation marks omitted]). A municipality "is subject to suit under the ordinary rules of negligence" when it "is engaged in a proprietary function," whereas it may only be held liable when "acting in a governmental capacity" if "the plaintiff prove[s] the existence of a special duty as an element of his or her negligence cause of action" (id. at 944-945 [internal quotation marks omitted]). "[A] special duty can arise," among other circumstances, when "the government entity voluntarily assume[s] a duty to the plaintiff beyond what [i]s owed to the public generally" (Cruz v City of New York, 211 A.D.3d 1011, 1011-1012 [internal quotation marks omitted]). However, "[e]ven if a plaintiff satisfies [his or her] burden of demonstrating that a special duty exists, a municipality acting in a discretionary governmental capacity may rely on the governmental function immunity defense, an affirmative defense that must be pleaded and proved by the municipality" (Ferreira v City of Binghamton, 38 N.Y.3d 298, 311 [internal quotation marks omitted]). "The [defense] shields public entities from liability for discretionary acts taken during the performance of governmental function[s]" (Devlin v City of New York, 193 A.D.3d 819, 821), "even when the conduct is negligent" (Valdez v City of New York, 18 N.Y.3d 69, 76 [internal quotation marks omitted]). "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" (Kralkin v City of New York, 204 A.D.3d 772, 773). "The [governmental function immunity] defense precludes liability for a mere error of judgment but [it] is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making" (Valdez v City of New York, 18 N.Y.3d at 79-80 [citation and internal quotation marks omitted]; see Devlin v City of New York, 193 A.D.3d at 821). Moreover, such "immunity... presupposes that judgment and discretion are exercised in compliance with the municipality's procedures, because the very basis for the value judgment supporting immunity and denying individual recovery becomes irrelevant where the municipality violates its own internal rules and policies[,] and...