A Probate Lawyer said the defendants the City of New York and the New York City Fire Department (hereinafter, “the City”), move by notice of motion for summary judgment and dismissal of the complaint as against them. Defendant hospital cross-moves for identical relief. Plaintiff, as Administrator of the Estate of an infant, deceased, and administrator, individually oppose both motions.
An Estate lawyer said that this litigation arises from the untimely death of a deceased. On July 5, 2003, while the family was hosting a barbecue in honor of their daughter and son, a fire broke out in their residence. At approximately 5:00 p.m., the mother called 911 to report the fire and realized that another son, was still inside the house. Upon their prompt arrival, New York City Firefighters found the son on the third floor, unresponsive. He was not breathing and had no pulse. The gravamen of plaintiff’s complaint revolves around the subsequent attempts at resuscitation by the Fire Department’s Basic Life Support Unit (EMTs) and the hospital t, whose efforts ultimately proved fruitless. Plaintiff commenced this action by the filing and service of a summons with complaint upon the City on or about July 13, 2004.
Brooklyn Probate Lawyers said in moving to dismiss, the City alleges that (1) they did not owe any special duty to the decedent and, therefore, are immune from liability; (2) nothing done by the municipal defendants worsened the decedent child’s condition; and (3) any negligence on the part of the City cannot be shown to be a proximate cause of decedent’s death.
In support of these allegations, the City relies upon the well established principles of governmental immunity, as well as the expert affirmation and the deposition testimon.
According to the City, the case against it must be dismissed pursuant to the general rule that a municipality may not be held liable for claims of negligence arising out of the performance of its governmental function. While recognizing that an exception exists where a special relationship is found between the claimant and the municipality, the City alleges that no such relationship is present herein. The City also alleges that even if a special relationship did exist, none of the care rendered to the deceased infant by any of its employees was a proximate case of his death.
Bronx Probate Lawyers said in cross-moving for summary judgment, the Hospital’s adopts many of the same arguments advanced by the City and, in reliance upon the affidavit of the doctor, argues that its motion should be granted due to the absence of any causal relationship between the acts or omissions attributed to it and decedent’s death.
In opposing both the motion and the cross motion, plaintiff alleges that sufficient evidence has been proffered to establish not only that a special relationship existed between decedent and the City, but that the City affirmatively assumed a duty to render care to the decedent. Plaintiffs further contend that sufficient evidence has been adduced to establish prima facie that the acts and omissions of the City’s and the hospital’s EMTs were a substantial factor in causing the infant’s death.
In reply, the City maintains that plaintiff has failed to establish a special relationship between itself and the deceased based upon detrimental reliance. Accordingly, no duty was created. Moreover, even if such a duty did exist, the City argues that plaintiff has failed to show any non-speculative basis on which to demonstrate that said duty was breached. In this regard, the City contends that the affidavits of plaintiff’s experts (1) include numerous factual errors and misstatements, and (2) repeatedly confuse the duties of the hospital ‘s Advanced Life Support Unit with those of the Fire Department’s Basic Life Support Unit, e.g., alleging departures in procedure by Basic Life Support personnel regarding measures which they are not permitted by law to perform, such as intubations, the administration of cardiac medications and the attachment of a cardiac monitor.
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. On a motion for summary judgment, the function of the court is issue finding, not issue determination. In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion. To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law.
In this regard, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to raise a triable issue. Thus, summary judgment is only appropriate where the movant’s initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact.
It is be incontrovertible that municipalities are generally immune from tort liability for the negligent performance of discretionary acts, i.e., those which require the use of reasoned judgment. Thus, a municipality may not be held liable for injuries resulting from the failure to provide adequate police or fire protection.
As for, the exception claimed by plaintiff, i.e., the second exception, it has been held to have four basic elements (a) an assumption by the municipality of an affirmative duty to act on behalf of the injured party; (b) knowledge on the part of its agents that inaction could lead to harm; (c) direct contact between the City’s agents and the injured party; and (d) that party’s justifiable reliance on the municipality’s affirmative undertaking. In this regard, it must also be noted that the special relationship rule has been applied to cases involving both nonfeasance.
With respect to establishment of a special relationship, the City alleges that plaintiffs must demonstrate that the decedent justifiably relied upon the actions of the municipal defendants to his or her detriment. Accordingly, when viewed in the present context, it is incumbent upon plaintiff to show that the acts of the City’s employees lulled her into a false sense of security, and that such reliance induced her to forego other possibilities of obtaining medical care, thereby placing the deceased in a worse position then he would have been in had the City never acted.
Contrary to plaintiff’s conclusory allegations of detrimental reliance, the papers presently before the Court are devoid of any evidence of same. Rather, the deposition testimony of both the firefighters who initiated resuscitative efforts and the members of the Basic Life Support Unit which took their place until the Hospital’s Advanced Life Support Unit arrived, as well as that of the decedent’s mother, demonstrates that the actions attributed to the City did not cause plaintiff to forego any other avenues of rescue.
A likewise result is required with respect to St. Vincent’s. Viewing the evidence in the light most favorable to the plaintiff, and accepting the affidavits of plaintiff’s experts, in which they opined defendant St. Vincent departed from acceptable practice in that there was a failure to defibrillate, establish an IV line, or administer appropriate heart rhythm medications, these said alleged departures are insufficient to establish they were a substantial factor in causing the son’s death. To the extent plaintiff’s experts’ opinions indicated, the deceased could have been resuscitated, this Court finds them to be mere speculation and conjecture without a sufficient objective basis.
According, it is ORDERED that the motion for summary judgment by the City of New York, the New York City Fire Department and the hospital’s are granted; and it is further ORDERED that the Clerk of the Court enter judgment accordingly.
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