Hightower v City of New York

[*1] Hightower v City of New York 2008 NY Slip Op 52139(U) [21 Misc 3d 1122(A)] Decided on October 16, 2008 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 16, 2008
Supreme Court, Richmond County

Sheeri Hightower, As Administrator of the Estate of JOSEPH HIGHTOWER, an Infant, deceased, and SHEERI HIGHTOWER Individually, Plaintiff,

against

The City of New York, NEW YORK CITY FIRE DEPARTMENT and "JOHN DOES" 1 through 14, ST. VINCENT'S MEDICAL CENTER OF RICHMOND, JOHN DOE NUMBER 1, and JOHN DOES NUMBER 2, Defendants.



11921/04



The attorneys are:For Plaintiff: Russo, Scamardella & D'Amato PC

1010 Forest Avenue

Staten Island, NY 10310

718-442-0900

For defendants: The City of New York and New York City Fire Department:

Nancy Kim, Esq.

Schiavetti Corgan DiEdwards & Nicholson, LLP

575 Eighth Avenue - 14th Floor

New York, NY 10018

212-541-9100

For defendants: St. Vincent's Medical Center of Richmond, et al

Vaslas Leopowsky Hauss & Danke LLP

201 Curry Avenue - Suite 200

Staten Island, NY 10314

718-761-9300

Philip G. Minardo, J.

Upon the foregoing papers, the motion (No. 428) for summary judgment by defendants the City of New York and the New York City Fire Department, and the cross motion (No. 2012) [*2]for like relief by co-defendant St. Vincent's Medical Center of Richmond are granted.

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 St. Vincent's Medical Center of Richmond (hereinafter, "St. Vincent's) cross-moves for identical relief. Plaintiff Sheeri Hightower, as Administrator of the Estate of Joseph Hightower, an infant, deceased, and Sheeri Hightower, individually (hereinafter, collectively "plaintiff") oppose both motions.

This litigation arises from the untimely death of Joseph Hightower. On July 5, 2003, while the Hightower family was hosting a barbecue in honor of their daughter, Corrine, and son, Ryan, a fire broke out in their residence at 92 Hausman Avenue, Staten Island, New York. At approximately 5:00 p.m., Mrs. Hightower called 911 to report the fire and realized that another son, Joseph, was still inside the house. Upon their prompt arrival, New York City Firefighters found Joseph 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 St. Vincent's Advanced Life Support Unit, whose efforts ultimately proved fruitless. Plaintiff commenced this action by the filing and service of a summons with complaint upon the City (and its Fire Department) on or about July 13, 2004. Issue was joined by the service of an answer by the City on or about July 24, 2004 [FN1]. A note of issue was filed on December 13, 2007.

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 of David Markenson, M.D. and the deposition testimony of (a) Sheeri Hightower, (b) firefighter Patrick Sobota, (c)Fire Department EMTs Marie Coohill and Patricia Scaduto; and (d) Matthew Caron, a paramedic employed by St. Vincent's.

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. In this regard, the City contends that the decedent was found in cardiac arrest, without a pulse, not breathing and unresponsive. Moreover, according to the affidavit of Dr. David Markenson, decedent's demise was solely the result of smoke inhalation, and unrelated to any or omission by the City's agents. In this regard, Dr. Markenson states that based upon the condition [*3]in which the decedent was found, his chances of survival were less than 10% and, even in that event, significant neurological damage would be expected. Responding to the gravamen of plaintiff's complaint, Dr. Markenson further states that the failure, e.g., to perform defibrillation was not a cause of death. "[I]n a situation such as this, i.e., smoke inhalation causing respiratory and then cardiac arrest, the most common sequelae with respect to the heartbeat is the absence of a heart rhythm, which is known as asystole . . . will not respond to defibrillation". Additionally, Dr. Markenson notes that according to the deposition testimony of EMT (now, paramedic) Caron, a working defibrillator was available at the scene if deemed necessary to the infant's survival. Finally, in response to plaintiff's claim that decedent vomited during resuscitation efforts, Dr. Markenson stated that "the presence of vomiting is a frequent finding in cardiac arrest and in no way indicates any level of consciousness or [an] ability to be resuscitated". Based upon this evidence, the City contends that no triable issues of fact exist as to its freedom from liability, and that the complaint as against it should be dismissed.

In cross-moving for summary judgment, St. Vincent's adopts many of the same arguments advanced by the City and, in reliance upon the affidavit of Dr. Markenson, 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 St. Vincent's EMTs were a substantial factor in causing the infant's death. More particularly, plaintiff contends that the resuscitative efforts and care rendered by the respective EMT crews were inadequate. In support for this position, plaintiff relies upon the affidavit of Edward Spector, M.D., a physician duly licensed in the State of New Jersey, and chairman of the Emergency Medical Department of Hunterdon Medical Center in New Jersey. Based upon a review of the relevant deposition testimony, the autopsy report, the reports of the responding EMS units and St. Vincent's Emergency Room records, Dr. Spector opines that the "EMS personnel present at the emergency scene did not follow the proper procedure pertaining to a cardiorespiratory emergency", and that the foregoing was a significant factor in contributing to Joseph Hightower's death. The doctor further opines that by "not performing all the steps of the Basic Life Support Algorithm as well as not following standard ALS cardiac arrest protocols, the EMS personnel who tended to Joseph Hightower deviated from the standard of care developed and accepted to be necessary for [a] patient's best chance of survival". In addition, plaintiff has submitted an affidavit by Michael Ryan, a formerly certified EMT-CC (for "Critical Care"), and a Certified Instructor/Coordinator for the New York State Department of Health with 25 years of experience as an EMS field technician. Based upon his review of the relevant deposition testimony and medical records, including both EMS reports, Mr. Ryan opines that the responding EMT workers breached the standard of care by deviating from the acceptable EMS protocols, and that those deviations adversely affected Joseph Hightower's chances of survival. He further states that among these deviations was their failure to oxygenate or defibrillate Mr. Hightower. Based, inter alia, upon the foregoing expert opinions, plaintiff contends that triable issues of fact exist which preclude dismissal of the [*4]complaint as against either the City or St. Vincent's.

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 St. Vincent'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. Thus, the City maintains that no triable issues of fact exist as to the care rendered by its emergency services personnel. Further, the plaintiff has failed to sufficiently overcome defendants' contention that Joseph Hightower was already clinically deceased at the time of their arrival.[FN2]

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 (see Rotuba Extruders v Ceppos, 46 NY2d 223; Herrin v Airborne Freight Corp., 301 AD2d 500). On a motion for summary judgment, the function of the court is issue finding, not issue determination (see Weiner v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY 732). In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion (see Glennon v. Mayo, 148 AD2d 580). To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Upon its failure to do so, the motion will be denied. Once a prima facie showing has been made, however, the burden shifts to the party opposing the motion to produce competent evidence demonstrating the existence of triable issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562). In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue (id. at 562). 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 (Persaud v Darbeau, 13 AD3d 347).

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 (see Pelaez v Seide, 2 NY3d 186; Brown v City of New York, 22 AD3d 241). Thus, a municipality may not be held liable for injuries resulting from the failure to provide adequate police or fire protection (see Clarke v City of New York, 18 AD3d 796). However, where a special relationship can be shown to exist between the claimant and the municipality, a narrow exception to the immunity rule has been recognized when the municipality (1) violates a statutory duty enacted for the benefit of a particular class of persons of which claimant is a member; (2) voluntarily assumes a duty that generates justifiable reliance by a person who benefits from the [*5]duty; or (3) assumes positive direction and control in the face of a known and dangerous safety violation (Palaez v Seide, 2 NY3d at 199-200; Abraham v City of New York, 39 AD3d 21, 25, lv denied 10 NY3d 707). 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 (Cuffy v City of New York, 69 NY2d 255, 260). In this regard, it must also be noted that the special relationship rule has been applied to cases involving both nonfeasance (see Haggerty v Diamond, 251 AD2d 455; lv denied 92 NY2d 814), and misfeasance of a governmental function (see Lauer v City of New York 95 NY2d 95).

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 (see Cuffy v City of New York, 69 NY2d 255, 261-262)[FN3]. 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 (Cuffy v City of New York, 69 NY2d at 261; Grieshaber v City of Albany, 279 AD2d 232, 235-236; lv denied 96 NY2d 719). Here, plaintiff has failed to sustain this heavy burden (see Clarke v. City of New York, 18 AD3d at 797).

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 St. Vincent's Advanced Life Support Unit arrived, as well as that of the decedent's mother, Sheeri Hightower, demonstrates that the actions attributed to the City did not cause plaintiff to forego any other avenues of rescue (see Merced v City of New York, 75 NY2d 798, 800; Dixon v Village of Spring Val,, 50 AD3d 943; Apostolakis v Centereach Fire Distr,, 300 AD2d 516, 517). Moreover, the evidence fails to indicate that the reliance, if any, placed by Sheeri Hightower on the intermediate resuscitative efforts of the Basic Life Support Unit placed the deceased at a disadvantage. Pertinent to the foregoing, it is worthy of note that the care so rendered was undeniably brief, and quickly superceded by the efforts of the Advanced Life Support Unit from St. Vincent's (Dixon v Village of Spring Val., 50 AD3d at 944). In

the absence of any special relationship, the City defendants are immune from liability nor can any [*6]of their actions or inactions been considered a substantial factor in causing decedent's death.[FN4]

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 Joseph Hightower'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 St. Vincent's are granted; and it is further

ORDERED that the Clerk of the Court enter judgment accordingly.

E N T E R,

s/ Philip G. MinardoJ.S.C.

Dated: October 16, 2008

gl Footnotes

Footnote 1:The action as against St. Vincent's was originally commenced under Richmond County Index No. 100182/05. On July 19, 2005, by Decision and Order of Honorable Christopher J. Mega, said action was apparently consolidated with the action commenced against the City under the present Index Number.

Footnote 2: It is uncontroverted that the deceased never had a pulse, respiration or heartbeat. The medical examiner's office found a 54% saturation carbon monoxide level in his blood concluding that Joseph Hightower's cause of death to be smoke inhalation.

Footnote 3:For purposes of performing this "special duty" analysis, the City concedes that Sheeri Hightower, the mother of decedent, has satisfied the "direct contact" prong of the Cuffy test (see Laratro v City of New York, 8 NY3d 79, 84; cf. Kircher v City of Jamestown, 74 NY2d 251, 258).

Footnote 4: In so holding, this Court acknowledges the case law which holds that even when no duty is owed, a duty once undertaken must be exercised with due care (see Parvi v City of Kingston, 41 NY2d 553, 559). However, while the Court of Appeals in Parvi did not cite to any case law involving a governmental defendant in support of its decision to apply this rule to the City of Kingston, it was explicitly held some 27 years later in Pelaez v Seide, (2 NY3d 186, supra) that in the absence of a special relationship no liability may attach to the discretionary albeit negligent acts of a municipal employee based upon policy considerations which outweigh the individual benefits that might result from a contrary rule (cf, Halpin v Town of Lancaster, 24 AD3d 1176, affd 7 NY3d 827).