Summary
The Appellate Division, First Department, reversed an order denying the City of New York and FDNY EMS's motion to dismiss or for summary judgment in a medical malpractice action. The court held that the plaintiff failed to establish or sufficiently allege a special duty, and that the derivative loss-of-services claim therefore could not survive independently.
Topics
Practice areas
Questions Presented
- Whether the complaint sufficiently alleged or established a special duty owed by the City Defendants to the infant decedent to support a medical malpractice claim against the municipality and FDNY EMS.
- Whether the evidence submitted in opposition to summary judgment established a triable issue of fact concerning the existence of a special duty.
- Whether the derivative loss-of-services claim could survive independently after dismissal of the underlying medical malpractice claim.
- Whether plaintiff's purported supplemental bill of particulars could be considered when it was actually an amended bill served after the note of issue without leave of court.
Holdings
- The medical malpractice claim against the City of New York and FDNY EMS must be dismissed because plaintiff failed to allege or establish the existence of a special duty.
- The 911 operator's assurance that an ambulance was on its way did not establish a special duty beyond the duty to dispatch an ambulance, and any special duty created by that assurance was fulfilled when the first ambulance arrived five minutes later.
- The loss-of-services claim could not survive independently because it was derivative of the dismissed medical malpractice claim.
- The document submitted as a supplemental bill of particulars could not be considered because it was actually an amended bill served after the note of issue and without leave of court.
Key quotations
“The medical malpractice claim should have been dismissed as against defendants The City of New York and FDNY EMS (the City Defendants) based on the absence of a special duty” ([*1])
“It is not enough that they arrived and provided treatment because that is what emergency responders do for any member of the public” ([*1])
“any special duty created by the 911 operator's purported assurance that the ambulance was on its way was fulfilled when the first ambulance” ([*1])
Factual background
An infant decedent's grandmother called 911, and a 911 operator assured her that an ambulance was on its way. A New York-Presbyterian EMS ambulance arrived five minutes later, while an FDNY advanced-life-support ambulance dispatched at the same time arrived approximately 14 minutes after the call. Plaintiff challenged the delay in transport by the NYP-EMS ambulance and the FDNY paramedics' alleged failure to properly intubate the decedent, and asserted medical malpractice and derivative loss-of-services claims against the City Defendants.
Procedural history
Supreme Court, New York County, denied the City Defendants' motion. The Appellate Division, First Department, reversed the order, granted the motion, and directed the Clerk to enter judgment accordingly.
Remand instructions
The motion of The City of New York and FDNY EMS was granted, and the Clerk was directed to enter judgment accordingly. No further remand instructions were stated.