Asantewaa v City of New York

Asantewaa v City of New York 2011 NY Slip Op 09174 Decided on December 20, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
Gonzalez, P.J., Mazzarelli, Andrias, Sweeny, JJ.
6383 22126/06

[*1]Mary Asantewaa, Plaintiff-Respondent,

v

City of New York, Defendant-Appellant.




Michael A. Cardozo, Corporation Counsel, New York (Marta
Ross of counsel), for appellant.
Powers & Santola, LLP, Albany (Michael J. Hutter of counsel),
for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 4, 2010, which granted plaintiff's motion for partial summary judgment on the issue of liability and denied defendant's cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny plaintiff's motion and to grant defendant's cross motion to the extent of dismissing that portion of plaintiff's claim premised upon defendant's failure to ensure that she wore a seat belt, and otherwise affirmed, without costs.

Plaintiff was injured when, while a passenger in defendant's ambulance, the ambulance suddenly stopped, causing plaintiff, who was seated on a bench in the rear compartment of the ambulance and not wearing a seatbelt, to fall off the bench. It is well settled that the operator of an ambulance owes its passengers a duty of reasonable care (see Bethel v New York City Tr. Auth., 92 NY2d 348, 356 [1998]). However, that duty does not require that the operator of the vehicle ensure that an adult passenger has fastened his or her seatbelt (see e.g. Stewart v Taylor, 193 AD2d 1078 [1993]). Moreover, the New York City Fire Department's internal rules requiring that members ensure that passengers in emergency vehicles wear seatbelts imposes a greater standard of care upon defendant than that imposed by law, and thus, a violation of said rules cannot serve as basis for plaintiff to impose liability upon defendant (see Gilson v Metropolitan Opera, 5 NY3d 574, 577 [2005]; Rahimi v Manhattan & Bronx Surface Tr. Operating Auth., 43 AD3d 802, 804 [2007]).

Contrary to plaintiff's contention that even if her allegations that defendant was liable based on its failure to ensure that plaintiff was wearing a seatbelt are found to be not viable she is still entitled to summary judgment based on her allegations that the ambulance was operated in a negligent
manner, the record presents triable issues of fact in this regard.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2011

CLERK