Leasure v 1221-1225 Realty, LLC

[*1] Leasure v 1221-1225 Realty, LLC 2009 NY Slip Op 52303(U) [25 Misc 3d 1226(A)] Decided on November 12, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2009
Supreme Court, Kings County

Lawrence Leasure, Sr. and Paula Leasure, as joint administrators of the Goods, Chattels and Credits of Lawrence Leasure, Jr.; Lawrence Leasure Sr. and Paula Leasure, Individually, Plaintiffs,

against

1221-1225 Realty, LLC, 2000 LLC, East River Family Center, Inc., City Homes, LLC, The City of New York and Emergency Assistance Unit, Defendants.



31840/02



The plaintiff is represented by Shestack & Young, LLP., by Jamie B. Levy, Esq., and

Shibu J. Jacobs, Esq., of counsel, the defendants 1221-1225 Realty, LLC. and 2000 LLC. East River Family Center are represented by Lewis, Brisbois, Bisgaard & Smith, LLP., by Karen L. Campbell, Esq., and Scott Wellikoff, Esq., of counsel, the defendants the City of New York and Emergency Assistance Unit are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Monica Kelly, Esq., of counsel, and the defendantsCity Homes LLC and East River Family Services are represented by Coughlin Duffy, LLP., by Linda Strauss, Esq., of counsel.

Robert J. Miller, J.

In this negligence and wrongful death action, all defendants move for an order, pursuant to CPLR 3212 (b), granting them summary judgment dismissing the complaint and all cross-claims asserted against them. In addition, defendants 1221-1225 Realty, LLC and 2000 LLC (collectively, the Building Owner), and defendants the City of New [*2]York and the Emergency Assistance Unit of the Department of Homeless Services (collectively, the City) move for an order, pursuant to CPLR 3211 (a) (7), dismissing the complaint insofar as asserted against them for failure to state a cause of action. Plaintiffs Lawrence and Paula Leasure, individually and as administrators of the estate of their son, Lawrence E. Leasure, III (the infant),[FN1] oppose all motions.

Background

On the evening of Wednesday, July 3, 2002,[FN2] the infant, who was seven months old at the time (date of birth December 7, 2001), was admitted to the emergency room at St. Barnabas Hospital in the Bronx, with the triage assessment category of 1 (out of 3 categories). His vital signs on admission were a core body temperature of 108°F (high fever), pulse of 230 beats per minute (tachycardia), and respiration rate of 50 breaths per minute (tachypnea). His sodium level was 160 mEq/L (normal range 135-145), blood urea nitrogen, 63 mg/dL (normal range 7-20), and creatinine, 2.0 mg/dL (normal range 0.6-1.2). He had dry mucous membranes (a manifestation of significant dehydration).[FN3] His HCO3 (an arterial gas reading) was 8 mM/L (normal range 22-26). His white blood cell count was 20.7 10*9/L (normal range 6.0-17.5), indicative of an infection. Overall, he was a toxic-appearing infant with poor color (cyanotic) and limp muscle tone. At 10 p.m. on that day, his differential diagnosis was "febrile seizure/meningitis/sepsis/hyperthermia."

His notable medical history included gastroesophageal reflux disease (GERD)[FN4] for which he was treated with liquid Zantac and Reglan three times daily. He was previously hospitalized at St. Barnabas in February 2002 for a failure to thrive, a condition characterized by failure to maintain normal weight gain.[FN5] He had been a formula-fed baby since birth and received iron supplementation with food. There was a family history of seizure.

In the emergency room, "[t]he baby was rapidly cooled with warm water, his [*3]temp[erature] came down to 101.8. He was given an intraosseous [into the bone [FN6]] IV [intravenous] line. Baby was intubated by anesthesia . . . Baby currently has NG [naso-gastric] tube." At 10:30 p.m., he was started on an aggressive fluid replacement regimen [FN7] and administered an antibiotic with other medications.

Despite the ER treatment, the infant's condition remained unstable. He was transferred in the early morning of July 4, 2002 from St. Barnabas to the Pediatric Intensive Care Unit of the Babies & Children's Hospital of New York, part of Columbia Presbyterian Medical Center (CPMC), for further management. On admission to CPMC at 4 a.m. on July 4, his temperature was 105°F; his heart rate, 150 to 180 beats per minute; his respiration rate, 60 breaths per minute; and his blood pressure, 90/50 (hypotension) (his blood pressure had not been measured at St. Barnabas). His weight was 6.9 kg, which included at least 450 cc of replacement fluids he had received at St. Barnabas.[FN8] His last weight reading was 6.8 kg on June 18, or two weeks prior, when he was last seen by a pediatrician at a clinic affiliated with St. Barnabas.

Shortly after his admission to CPMC, his laboratory readings (for the most part, unimproved compared to those taken at St. Barnabas) were as follows: sodium level, 163 mEq/L; blood urea nitrogen, 55 mg/dL; creatinine, 1.2 mg/dL; and HCO3, 8 mM/L. At that time, he also had low potassium (or hypokalemia) of 3.1 mM/l (normal 3.6-5.0), and low calcium (or hypocalcemia) of 6.3 mg/dL (normal 8.7-10.0). His diagnosis was "hypernatremic dehydration." Hypernatremia is an abnormally high serum sodium level.

An inpatient follow-up/attending physician's note of July 5 (11:30 a.m.), which reflected the infant's history taken by the doctor took from the father, stated, in relevant part: " -d [decreased] PO [by mouth] intake b/c [of] reflux, on meds & thickened foods, using powdered formula." The note contained the doctor's assessment of the infant, as follows: Almost 7 mo[nth] boy s/p [status post] heat stroke w/ T[emperature] max 108, hypernatremia, hypovolemia, ?Seizure & LP [lumbar puncture] c/w [compatible with] meningitis.— Hx [history] consistent given no A/C [air conditioning], no T[emperature] taken at home, -d [decreased] PO's [by mouth intake], etc.— Dad has epilepsy & current interaction indicated pressured speech and [*4]preconceived answers to questions which are sometimes incorrect . . .

A later physician's note of the same day (July 5) stated that the infant appeared encephalopathic, although his initial brain CT scan was normal. The physician stated that the cerebrospinal fluid findings were consistent with meningitis, but that other etiologies could also be considered, including dehydration, hyperthermia, ingestion, or trauma. The CPMC questioned the infant's father as to what actually happened to the infant at home. A social worker's note of July 5 described her assessment and impressions of her interview with the father, as follows: SW [social worker Shannon Tansey] met with Mr. L [the father]. The father presented as extremely concerned. The father informed SW that last night his son felt warm so he placed him into a tub with ice. The father then stated that his son's fever broke so he thought he was well. A few hours went by and his son felt warm again. The patient then began to shake so the father called for car service and went to the ER at St. Barnab[a]s Hospital. According to dad the fever broke at St. Barnab[a]s but they wanted to transfer him to CPMC for monitoring. The father reportedly has epilepsy however he claims that it is not "hereditary." The father stated the only way someone can have epilepsy is through a high fever, or being hit on the head. The father stated that his child would not be diagnosed with this illness just because he has it. The father stated that his father was a doctor so he is familiar with caring for a sick child. However, when the baby began shaking he knew he required more medical care.

* * * . . . Dad presented to this author to have cognitive delays. SW was not sure the father understood the severity of his son's condition or the necessity of medical care. The father also presented with a grandiose sense of self. . . (emphasis supplied).

Several days later, the same social worker interviewed the infant's mother and in a July 8 note described her assessment and impressions of the mother, as follows: SW was asked to speak to mom about the living conditions of the home and the activities of the patient on the day the patient was brought to the ER. Mom presented similar to dad. She may have cognitive delays and she expressed a great deal of faith in GOD. Mom stated that the family is very spiritual and they have experienced numerous miracles with their children. Mom verbalized a miracle story with each of her children. Mom informed SW that over the years all of her children have been misdiagnosed by doctor[s] at one time or another. . .[*5]According to mom the day the patient was brought to the ER at St. Barnab[a]s he was engaging in "normal" everyday activities. Mom stated that due to his "flex [GERD] disorder" the patient cannot drink water or apple juice. Mom reported that the patient was fed 3 oz. of formula eight or nine times during the day and that morning the patient ate oatmeal. According to mom the last feeding was at approximately 5:30 pm. . . The apartment does not have air conditioning, but according to mom the baby was placed next to a fan all day. At around 6:00 pm the mother noticed the baby's stomach feeling hot. The mom then checked the chest and the head. According to mom, the patient's father put the patient in a "cool tub." Mom then reported that the baby's temperature went down. However, a little while later the baby's hand began to shake. The mother reportedly screamed to the father that the baby was having an epileptic seizure and required immediate medical attention (emphasis supplied).

A July 7 brain CT scan with contrast, as well as a follow-up July 11 brain MRI scan, disclosed that the infant had sustained severe neurologic injuries: diffuse brain swelling, global loss of sulci (cerebral furrows), loss of grey/white differentiation in certain areas, and ventricular compression. A July 12 ophthalmologist's note indicated that the infant was cortically blind as the result of the injury to his occipital cortex secondary to cerebral edema and hyperthermia. The infant's hearing remained intact.

On July 23, the infant was transferred from the Pediatric Intensive Care Unit to the medical section of CPMC. A July 23 pediatric team accepting note stated that, as per the parents, the infant was "fed thickened foods with no additional juice or water during very hot days, perhaps contributing to Na+ [sodium]." A July 24 pediatric attending note stated that the infant's prognosis for normal development was bleak and that concerns had been raised by the staff as to the parents' understanding of his condition and their ability to care for him at home.

On August 12, the infant underwent a laparoscopic Nissen fundoplication (a suture of the fundus [the lowest part] of the stomach around the gastroesophageal junction to treat his GERD). On September 5, the infant was transferred from CPMC to New York Foundling Hospital for long-term care. His diagnosis at that time was "[e]ncephalopathy secondary to severe hyperthermic brain injury s/p [status post] temp 108, seizure disorder, cortical blindness, s/p GT with N[i]ssen Fundoplication and discordant suck swallow [reflex] secondary to neurological injury." On October 20, 2002, he was discharged to the care of his parents. He was pronounced dead on November 24, 2003 in the emergency room of Woodhull Hospital. The cause of death, according to his parents, was from aspirating his own food, which one of them had earlier fed him through a stoma (an opening into his stomach) using a feeding machine. His death certificate stated that the immediate cause was [*6]"undetermined." The parents refused an autopsy.

During the functional part of his 23-month life, the infant resided with his parents and his four pre-teen sisters in a two-bedroom apartment (No. 15B) located at the top, fifth floor of an apartment building at 2000 Prospect Avenue in the Bronx (the apartment). Originally homeless, the family had applied for housing at the Emergency Assistance Unit of the Department of Homeless Services. Once the family had been found eligible for housing assistance, the City's independent contractor, City Homes Associates, LLC, sued herein as City Homes, LLC (City Homes),[FN9] had placed the family in the apartment. City Homes was leasing the apartment from the Building Owner for emergency use by its clients. The apartment served as the family's transitional shelter pending its application and approval for permanent Section 8/EARP housing.[FN10] During the family's stay in the apartment, the client managers from City Homes oversaw their living arrangements, responded to their complaints/requests, and interacted, on their behalf, with the Building Owner's on-site superintendent and maintenance personnel. The contact between the client managers and the family was frequent and consisted of face-to-face meetings and telephone calls. The family had a land-line telephone in the apartment and the father had his own cellular telephone on the Sprint network. The apartment was within a five-minute driving distance from St. Barnabas. The family was free to move out of the apartment at any time and return to the Emergency Assistance Unit for different lodgings.

The apartment did not have an air conditioner. The parents did not possess an air conditioner which they could install. On July 3, 2002, the outdoor air temperature in New York City was between 82°F and 95°F, the average dew point temperature was 72°F, and the maximum heat index was 103°F.[FN11] On that day, the entire family had been staying in the living room, watching TV. The infant was sitting in a Graco child's car seat, equipped with a backrest, made of plastic and cushioned inside by fabric. When he stayed in the seat, there was little space between his sides and the seat walls. To keep him upright because of his GERD, he was strapped in with a three-point safety harness. The car seat with the infant was on the couch in the living room. Behind the couch were two open windows facing a [*7]playground. There were three oscillating (rotating side-to-side) stand fans in the living room, one of which was fixed to blow directly at the infant, while the other two were rotating. The couple's four other children, aged 20 months; 4 years, 5 months; 5 years, 4 months; and 6 years, 2 months, also spent the entire day in the living room but suffered no harm from the hot weather. They were provided with, and drank, unrestricted amounts of soda and water.

According to the ER records at St. Barnabas, the father reported that the infant had a fever at 6 p.m., lacked an appetite, felt hotter, and started shaking. The father took the infant to St. Barnabas by car service. The infant's tragic outcome — his severe brain damage and subsequent death — forms the basis for this lawsuit.

In the instant action, his parents assert three causes of action seeking compensatory and punitive damages. The first cause of action, which is on behalf of the infant's estate, is for negligence and wrongful death based on the defendants' alleged ownership, operation, and/or maintenance of the apartment. As amplified by the bill of particulars, the parents' deposition testimony, and the father's reply affidavits, this cause of action alleges that the City (through its Emergency Assistance Unit), City Homes (through its case workers), and the Building Owner (through its superintendent) expressly prohibited the parents from installing any air conditioner (whether window mounted or floor standing) in the apartment, that the apartment was improperly ventilated, and that its condition was otherwise hazardous, suffocating, and unsanitary. The second cause of action is by the parents for loss of consortium. The third cause of action is by the father alone based on the defendants' alleged failure to warn of the dangerous condition of the apartment and refusal to aid. All defendants have interposed answers and asserted cross-claims against each other. After a note of issue was filed, all defendants moved for summary judgment pursuant to CPLR 3212 (b).[FN12] The court heard oral argument on September 11, 2009 and reserved decision.

Discussion

Standard of Review

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that [*8]it is entitled to judgment as a matter of law (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If this burden cannot be satisfied, the court must deny the relief sought (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (id.). Mere conclusory statements, expressions of hope, or unsubstantiated assertions are insufficient to defeat the motion (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]).

The City Defendant

The City contends that all of the plaintiffs' claims must be dismissed, as it is immune from liability when performing governmental functions. It is well established that: Municipalities long ago surrendered common-law tort immunity for the negligence of their employees. A distinction is drawn, however, between "discretionary" and "ministerial" governmental acts. A public employee's discretionary acts — meaning conduct involving the exercise of reasoned judgment — may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial acts — meaning conduct requiring adherence to a governing rule, with a compulsory result — may subject the municipal employer to liability for negligence.

(Lauer v City of New York, 95 NY2d 95, 99 [2000] [citing Tango v Tulevech, 61 NY2d 34, 41 (1983) ("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")]; see also McLean v City of New York, 12 NY3d 194, 203 [2009] ["Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general"]).

The record indicates that there were three alleged acts or omissions by the City regarding the Leasure family: (1) the approval of the family's eligibility for emergency housing at a fair hearing held in October 2001 (two months before the infant's birth); (2) the referral of the family, once the City found it to be eligible, to one of the City's independent contractors (here, City Homes) for transitional placement; and (3) the City's alleged failure or refusal in May-July 2002, when the infant was five-seven months old, to permit the family to have an air conditioner in the apartment. The first act was inherently discretionary (see Biro v Department of Social Servs./Human Resources Admin., 1 AD3d 302, 303 [2d Dept 2003]; Matter of Frumoff v Wing, 239 AD2d 216, 217 [1st Dept 1997]). The court need not determine whether the second act or the third act (or rather omission) were discretionary or ministerial. Even if these acts/omissions were ministerial, the City would be held liable only if there existed "a special duty to the injured person, in contrast to a general duty owed to the public" (Garrett v Holiday Inns, Inc., 58 NY2d 253, 261 [1983]; see Ubiera v Housing Now Co., 184 Misc 2d 846, 851-852 [Sup Ct, Bronx County 2000] [applying the "special duty" [*9]standard of review to the City's alleged negligence in referring a mother with two minor children to non-City-operated facilities which were contaminated with lead]).

A special duty arises: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" (McLean, 12 NY3d at 199 [citations and internal quotation marks omitted]). The "statutory duty" test fails in this case because "the provision of temporary housing for homeless families is a governmental function mandated by the State Constitution for the benefit of the general public, with no statute conferring a private right of action upon individuals receiving government assistance" (Rodriguez v City of New York, 20 AD3d 327, 327 [1st Dept 2005], appeal withdrawn 7 NY3d 751 [2006]).

The City did not voluntarily assume a duty that could have generated the parents' justifiable reliance because, according to their deposition testimony, neither parent had notified the City regarding the absence of air conditioning in the apartment (Transcript of Lawrence Leasure's Deposition of June 2, 2006, at 660-661; Transcript of Paula Leasure's Deposition of June 26, 2006, at 500). The father's new allegation, offered for the first time in his reply affidavit of July 10, 2009, that he told the Emergency Assistance Unit that he (not the infant) had a health problem with heat, is insufficient to raise a triable issue of fact because it is an attempt to avoid the consequences of his deposition testimony by raising a feigned factual issue (see Baxter v Jackson Terrace Assocs., LLC, 43 AD3d 968, 969 [2d Dept 2007]; Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257 [2d Dept 1997]).

Lastly, although a special relationship may be formed when a municipality assumes positive direction and control in the face of a known, blatant, and dangerous safety violation, there is no evidence that the City assumed any direction or control over the apartment, nor that the absence of air conditioning in the apartment was an egregious safety violation.[FN13] Accordingly, to the extent that the City's actions are discretionary, its failure to act does not [*10]give rise to a claim for common-law negligence (McLean, 12 NY3d at 203). To the extent the City's actions are ministerial, there can be no liability because the plaintiffs failed to show that the City owed a special duty to the infant apart from any it owed to the public in general (see Lamot v City of New York, 62 AD3d 572 [1st Dept 2009]; Martinez v City of New York, 24 Misc 3d 1223 [A], 2009 WL 2170273, *2-3, 2009 NY Slip Op 51564 [U] [Sup Ct, Kings County 2009]).

Inasmuch as the infant's claim against the City is barred by the doctrine of sovereign immunity, the parents' derivative claim against the City for loss of consortium fails. Moreover, in New York parents generally cannot recover for loss of consortium/loss of services for their children (see Devito v Opatich, 215 AD2d 714, 715 [2d Dept 1995]; Lamarche v Big Brothers/Big Sisters of America, 22 Misc 3d 1113 [A], 2009 WL 159716, *5, 2009 NY Slip Op 50107 [U] [Sup Ct, Richmond County 2009]). Finally, the father's separate claim for failure to warn and refusal to aid has no merit, as there is no evidence in the record that he had a special relationship with the City. Accordingly, the City's motion to dismiss the complaint and all cross-claims asserted against it is granted.

The Non-City Defendants

The Building Owner, City Homes, and East River Family Center, Inc. (collectively, the Non-City Defendants) move to dismiss the complaint on the ground that, among other things, their alleged refusal to permit the family to have an air conditioner and their alleged negligence in owning, operating, or maintaining the apartment did not proximately cause the infant's injuries. The Court of Appeals "has consistently held that the negligence complained of must have caused the occurrence of the accident from which the injuries flow" (Rivera v City of New York, 11 NY2d 856, 857 [1962]). " The concept of proximate cause, or more appropriately legal cause' encompass two different, but related, issues: whether the defendant's negligence was a substantial cause of the events which produced the injury'; and whether policy considerations that serve to place manageable limits upon liability that flows from negligent conduct' should preclude liability in the particular case" (Afflick v Port Auth. of NY & N.J., 5 Misc 3d 1002 [A], 2004 WL 2295857, *10, 2004 NY Slip Op 51160 [U] [Civ Ct, Kings County 2004] [quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314-315 (1980)]).

Restatement of Torts (Second), § 433 illustrates the concept of "substantial cause": The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:

(a)the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b)whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation [*11]harmless unless acted upon by other forces for which the actor is not responsible;

(c)lapse of time.

"Expert testimony usually is necessary to establish a causal connection between an injury and its source unless the connection is a kind that would be obvious to laymen, such as a broken leg from being struck by an automobile" (Tufariello v Long Island R.R. Co., 458 F3d 80, 89 [2d Cir 2006] [internal quotation marks, citation, and alteration omitted]). The cause of the infant's brain injuries in this case is not so obvious, and expert evidence is required.

The Non-City Defendants jointly submit an affirmed report, dated February 2, 2009, of Shlomo Shinnar, M.D., Ph.D., an expert in the field of pediatric neurology. After listing the medical records and the parents' deposition testimony he reviewed, Dr. Shinnar describes the infant's condition at the time of admission to St. Barnabas and opines, based on the laboratory readings set forth above, that the infant was suffering from acute dehydration and a profound metabolic acidosis (¶ 6). Dr. Shinnar explains: Metabolic acidosis is a pH imbalance where the body accumulates too much acid and usually reflects a severe disturbance in oxygenation or perfusion of muscle and other tissues. In this case, the metabolic acidosis was the consequence of dehydration and inadequate perfusion secondary to the dehydration, reflecting a derangement of the normal body homeostasis. Homeostasis is the body's ability to maintain a stable internal environment. Stated differently, homeostasis is the body's ability to regulate and function normally. Only major insults can disrupt or derange it. Further, the blood gas showed a pH of 7.27 (which is acidotic), and a low PCO2 of 19 (a sign of hyperventilation or aggressive ventilation by emergency department staff and a base excess of -16.6 again confirming a profound metabolic acidosis (¶ 6).

Dr. Shinnar notes that the infant's sodium level of 160 mEq/L (normal 135-145) represented a "major and significant hypernatremic dehydration, i.e. not consuming an adequate amount of fluids, as opposed to dehydration resulting from heat exposure" and reflected "inadequate fluid intake for at least 24 hours and likely longer" (¶ 11). He further states that: [T]hese findings [i.e., the sodium level of 160, HCO3 of 8, blood gas with a base excess of -16.6, and the dryness of the mucous membranes] could not have been the result of a few hours, as the parents reported to St. Barnabas. Instead, it would have required the child not be fed properly and given enough fluids for several days prior to his finally being brought to St. Barnabas (¶ 14 [footnote omitted]).[*12]

Dr. Shinnar opines that the infant's metabolic acidosis and severe hypernatremia "could not have occurred in the space of a few hours and is not secondary to heat or his residence not containing air conditioning" (¶ 15). He emphasizes that "[h]ypernatremic dehydration caused by significant inadequate fluid intake, in and of itself, can occur no matter the ambient temperature" (¶ 16). Hypernatremic dehydration, in turn, causes seizures and severe neurological damage, which the infant sustained in this case (¶ 16). In Dr. Shinnar's professional opinion, the infant's injuries and subsequent death were preventable if his parents had providd adequate fluid/water intake, which, at his age, was in their exclusive control (¶ 16).

Dr. Shinnar's analysis indicates that the chain of tragic events started with the infant's GERD and the lack of adequate fluid intake. Based on the profound nature of the infant's physical derangement, the chain of events did not begin with hot weather in July and the absence of air conditioning. Rather, according to Dr. Shinnar, the parents' prolonged withholding of sufficient water/fluids from the infant because of his GERD caused his inadequate fluid intake, which, in turn, led to his hypernatremic dehydration, which, in combination with other electrolyte and blood gas abnormalities, ultimately caused his brain damage.

Dr. Shinnar's expert opinion, in conjunction with the extensive medical records, demonstrates that the infant was at a significant risk for dehydration and hypernatremia regardless of the ambient air temperature to which he was exposed. The Non-City Defendants thus have provided prima facie proof to support summary judgment in their favor. Because these defendants have met their initial burden, in order to defeat summary judgment, the plaintiffs must raise a triable question of fact by offering competent evidence.

The plaintiffs here submit two expert affidavits or affirmations. The first is an affidavit of William Sothern, a certified industrial hygienist, who relies on the 2008 New York State Standard Multi-Hazard Mitigation Plan to demonstrate that between July 2 and 4, 2002 (the infant was hospitalized on July 3), there was a heat wave in New York City and in Nassau, Orange, Putnam, Rockland, Suffolk, and Westchester Counties. Remarkably, the Mitigation Plan on which Mr. Sothern relies undercuts, rather than supports, the plaintiffs' position. First, it indicates that there were no reported injuries or fatalities caused by the subject heat wave, which it describes, as follows: Temperatures rose into the mid and upper 90's across the region, averaging 10-15 degrees above normal. A record high was reached at LaGuardia Airport, at 98°. High humidity coupled with high temperatures produced heat indices of 100-105 degrees throughout the region. Hospital emergency rooms report minor cases of heat exhaustion and other heat-related ailments (§ 3.11, at 3-266 [emphasis supplied]).[FN14][*13]

Second, the Mitigation Plan classifies health hazards depending on the magnitude of the heat index as: "caution" (heat index of 80°F to 90°F), "extreme caution" (heat index of 90°F to 105°F), "danger" (heat index of 105°F to 129°F), and "extreme danger" (heat index of 130°F and higher) (§ 3.11, Table 3-49, at 3-255). On July 3, 2002, the heat index was 103°F and, thus, fell within the "extreme caution" category.[FN15] According to the Mitigation Plan, the "extreme caution" category entails the following health hazards: "sunstroke, muscle cramps, and/or heat exhaustion possible with prolonged exposure and/or physical activity" (§ 3.11, Table 3-49, at 3-255 [emphasis supplied]). This is entirely consistent with Dr. Shinnar's conclusion that the infant's injuries resulted from an inadequate fluid intake "for at least 24 hours and likely longer" (¶ 11). In any event, "standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (Parker v Mobil Oil Corp., 7 NY3d 434, 450 [2006], rearg denied 8 NY3d 828 [2007]).

The plaintiffs next submit an affirmation, dated July 2, 2009, of Pavel Yutsis, M.D. for whom, however, they have never made a CPLR 3101 (d) (1) (i) exchange.[FN16] The plaintiffs offer no excuse for their delay in identifying this expert. They fail to provide the defendants with qualifications of Dr. Yutsis, who, according to his website, is a complementary/alternative medicine specialist, not a pediatrician.[FN17] The two-page affirmation by Dr. Yutsis fails to set forth a summary of the grounds for his opinion. The Non-City Defendants are prejudiced by the plaintiffs' submission of this expert affirmation more than one year after the note of issue was filed. Thus, the court, in the exercise of its discretion, declines to consider this affirmation (see Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917 [2d Dept 2009]; Construction by Singletree, Inc. v Lowe, [*14]55 AD3d 861, 863 [2d Dept 2008]).

Even if the plaintiffs' medical expert affirmation were considered, the result would not be different. Dr. Yutsis states that based upon his review of the infant's medical records, the parents' deposition transcripts, Mr. Sothern's affidavit, and Dr. Shinnar's affirmation, he has concluded, "with a reasonable degree of medical certainty," that (1) "the high temperature in the apartment," (2) "the lack of ventilation in the apartment," and (3) "the lack of air flow in the apartment" were each "a substantial factor contributing to him becoming severely dehydrated on July 3, 2002, a condition that ultimately led to his untimely death." That is all he wrote. Not a word about medical evidence to support his opinions; not a single response to any of the points made by Dr. Shinnar. This conclusory affirmation of Dr. Yutsis, containing opinions outside his area of expertise and lacking a foundation for his opinions, has no probative value and is plainly insufficient to rebut the Non-City Defendants' prima facie showing (see Itzkowitz v King Kullen Grocery Co., 22 AD3d 636, 637-638 [2d Dept 2005] ["The expert's affirmation that was submitted on behalf of the plaintiff with the apparent purpose of demonstrating . . . causation provided no data to indicate the basis for the expert's conclusion and was speculative, conclusory, and lacking in probative value"] [internal quotation marks and alterations omitted]; Sotamba v City of New York, 20 Misc 3d 1144 [A], 2008 WL 4225558, *2, 2008 NY Slip Op 51877 [U] [Sup Ct, Kings County 2008] [an expert affidavit which offers conclusory opinions without any factual support and without reliance on any facts or data has no probative value for summary judgment]).

In sum, as reflected in Dr. Shinnar's affirmation and the medical records: (1) the infant's pre-existing GERD, which made him susceptible to regurgitating fluids and which was corrected at CPMC by surgery after the fact; (2) the parents feeding the infant with thickened, no extra water added formula in light of his GERD; (3) keeping him strapped upright in a restrictive plastic car seat to minimize the effects of his GERD; (4) the prolonged failure to provide him with water or fluids to keep him adequately hydrated in hot weather and (5) the failure to seek prompt medical attention for him when he first became feverish - demonstrates that these actions and omissions constituted the proximate cause of the infant's injuries. Although the fact scenario of this case is fairly unique, research has found two analogous decisions in which a parent's insistence on handling an overheated child on his or her own ended in tragedy (see Anderson v State, 48 Misc 2d 1061, 1070 [Ct Cl 1966] [mother taking her six-year-old son, whose physical condition made likely sudden variations in health, from the State institution against the State doctor's advice, on an unseasonably hot day, when he was running a high temperature, for a four-hour trip to see the son's private doctor, was the precipitating factor in his death]; see also State v Bittner, 2002 WL 4493, *5 [Ohio App 2001] [a father's intentional six-hour delay in seeking medical help for his six-month baby girl who was inadvertently left in a van for an hour on a hot summer day caused her death; the father's erroneous belief that a cool bath and bottles of formula would restore her to health was unreasonable; his conviction, after a jury trial, of involuntary manslaughter and child endangerment was upheld on appeal]). [*15]

A delay in seeking medical attention for a severely hypernatremic child may naturally progress to a serious neurologic trauma or even death. A treatise on emergency medicine explains the mechanism of injury: As hypernatremia . . . develops, fluid is drawn into the vasculature from the surrounding cells. Similarly, fluid is drawn across the blood-brain barrier, leading to cerebral dehydration, rupture of cerebral blood vessels, and the characteristic central nervous system signs and symptoms of hypernatremia. In response, brain cells slowly generate [various] organic substances that increase cellular tonicity and liquid brain cell dehydration. This phenomenon must be considered when correcting hypernatremia.[R]apid correction of most hypernatremic children results in life-threatening central edema. Gradual correction of hypernatremia is required. Even with gentle correction, severe hypernatremia may cause permanent neurologic sequelae.

(Gregory P Conners, Pediatric Fluid and Electrolyte Disorders in 1 Emergency Medicine, at 570 [John M Howell ed, WB Saunders Co 1998] [emphasis supplied]).

The court's ruling that, based on the admissible medical evidence presented, the parents' acts or omissions were the proximate cause of their child's injuries does not run afoul of General Obligations Law § 3-111, which provides that: "[i]n an action brought by an infant to recover damages for personal injury the contributory negligence of the infant's parent or other custodian shall not be imputed to the infant." Section 3-111 codifies the general rule that a mere negligent supervision of a child is not actionable (see Navaro v Ieraci, 214 AD2d 713, 714 [2d Dept1995] [motion court properly dismissed affirmative defense which asserted, inter alia, that mother "negligently failed to protect the infant from the alleged hazardous conditions (lead paint) known to her in the apartment"]; Ruffing v Union Carbide Corp., 186 Misc 2d 679, 690 [Sup Ct, Westchester County 2000] [mother's negligence in exposing her then-unborn child to harmful chemicals could not be imputed to the infant]). "The negligent supervision' rule protects infants against tortfeasors who would avoid paying damages for their own negligence by pointing to the nearly ever-present negligent supervision of the infants' parents" (Cooper v County of Rensselaer, 182 Misc 2d 487, 490-491 [Sup Ct, Rensselaer County 1999]).

However, "[p]recluding a parent's negligence from being imputed to his or her child does not . . . expand the scope of a defendant's duty to the child" (Vaughan v Saint Francis Hosp., 29 AD3d 1133, 1136 [3d Dept 2006]). "The analysis regarding the initial question of whether negligence . . . occurred remains unaltered by General Obligations Law § 3-111 in that the fundamental elements — i.e., a breach of duty that is a proximate cause of injuries — must be shown. What a defendant cannot do (if found to have breached a duty that was a [*16]proximate cause of a child's injuries) is attempt to use a parent's negligence to reduce the child's damages" (Vaughan, 29 AD3d at 1136 [internal citations omitted]). The appellate panel in Vaughan noted that the New York Pattern Jury Instructions provide specific guidance on this point, stating: If you find that plaintiff is entitled to recover under the rules of law I have given you, the sum you award as damages should not be reduced, even if you also find that there was negligence on the part of plaintiff's [parent] which contributed to plaintiff's injury.

(PJI3d 2:262 [2009]).

Similarly, in the context of premises liability, the Court of Appeals held that parental acts or omissions constituted an intervening cause absolving a third party from negligence (see Martinez v Lazaroff, 48 NY2d 819, 820 [1979] [the failure of defendants, the owners and managers of apartment building in which plaintiffs were tenants, to supply plaintiffs with hot water due to the boiler's disrepair was not the proximate cause of the injuries suffered by the infant plaintiff who was injured when his father was transporting a pot of boiling water from the substitute source and the infant plaintiff came out of the bedroom and bumped into him; summary judgment was properly granted to defendants]; Rivera v City of New York, 11 NY2d 856, 857 [1962] [defective plumbing causing bathtub always to be filled to height of the overflow was not the proximate cause of injury sustained by an infant who was severely burned when he fell into the tub when he was standing on its edge trying to reach the light; denial of summary judgment to the landlord reversed]).

To reiterate, the burden on a party moving for summary judgment is to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez, 68 NY2d at 324). "The moving party need not specifically disprove every remotely possible state of facts on which its opponent might win the case" (Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009]). The Non-City Defendants' showing here is adequate to shift the burden to the plaintiffs to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact as to whether these defendants proximately caused the infant's injuries. The plaintiffs have not carried that burden. All of the plaintiffs' causes of action, therefore, fail. In view of the foregoing, the court need not reach other points made by the Non-City Defendants.

Conclusion

In sum, the court rules, as follows:

(1)That branch of the motion for summary judgment of the defendants City of New York and the Emergency Assistance Unit is granted, and the complaint and all cross-claims against these defendants are dismissed.

(2)The motion for summary judgment of the defendants City Homes Associates, LLC (sued herein as City Homes, LLC) and East River Family Center, Inc. is granted, and the complaint and all cross-claims against these defendants are dismissed. [*17]

(3)That branch of the motion for summary judgment of the defendants 1221-1225 Realty, LLC and 2000 LLC is granted, and the complaint and all cross-claims against these defendants are dismissed.

The foregoing constitutes the decision, order, and judgment of the court.

ENTER,

______________

Robert J. Miller

J. S. C. Footnotes

Footnote 1: This is the infant's correct name as reflected in the Certificate of Death no. 156-03-052850) (see In re Lawrence E. Leasure, III [Sur Court, Kings County, file No. 2004-1250]).

Footnote 2: All references are to the year 2002, unless otherwise indicated.

Footnote 3: The infant was born with a deviated septum, which was addressed by daily cleaning with swabs, although no such cleaning was performed on July 3.

Footnote 4: GERD, formerly known as reflux esophagitis, is an "[i]nflammation of the lower end of the esophagus (gullet) caused by regurgitation (backflow) of the acid contents of the stomach. It is usually the result of relaxation of the lower esophageal sp[h]incter (muscle) which normally constricts the esophagus and prevents the backflow." (5 Schmidt, Attorneys' Dictionary of Medicine, at R-69 [2008]).

Footnote 5: In February 2002, the infant, then three months old, was admitted to St. Barnabas for failure to thrive as he had weighed less than his birth weight.

Footnote 6: The infant apparently was so severely dehydrated that an intravenous route of fluid administration was not feasible.

Footnote 7: Iintravenous normal saline bolus at 400 cc/hour, then 5% dextrose in one-third strength normal saline at 50 cc/hr.

Footnote 8: No weight reading appears in the St. Barnabas chart.

Footnote 9: This is the correct legal name of City Homes.

Footnote 10: The City's Emergency Assistance Re-housing Program, or EARP, provided Section 8 vouchers to eligible homeless families living in the shelter system. Through this program, landlords received a one-time bonus for renting to a family with this type of voucher. The program was discontinued in October 2004 (see Nancy Smith et al., Understanding Family Homelessness in New York City, ativ, n 7, and 6, n 4, http://www.nyc.gov/html/dhs/downloads/ pdf/vera_Study.pdf [Vera Institute for Justice, Sept. 2005 Report, accessed Nov. 1, 2009]).

Footnote 11: This is based on the Local Climatological Data Report (NYC — Central Park) for July 2002. The heat index is calculated under the formula of the National Weather Service Forecast Office (http://www.crh.noaa.gov/jkl/?n=heat_index_calculator [accessed Nov. 1, 2009]).

Footnote 12: The Building Owner and the City also have moved, in the alternative, to dismiss the complaint, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action. The plaintiffs have controverted the defendants' evidence and submitted additional evidence of their own. A motion to dismiss pursuant to CPLR 3211 may be converted to a summary judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]). The notice requirement may be obviated in cases where the parties have "deliberately chart[ed] a summary judgment course" (Backer v Bouza Falco Co., 28 AD3d 503, 504 [2d Dept 2006], lv denied 7 NY3d 707 [2006]). The court finds that, through the submission of extensive evidence by both the defendants and the plaintiffs, all parties have deliberately charted a summary judgment course. The court, therefore, considers the respective motions of the Building Owner and the City as one solely for summary judgment and applies the summary judgment standard of review.

Footnote 13: The New York City Administrative Code does not require that a private apartment which serves as a tier II shelter for a homeless family (such as the one at issue here) be air conditioned. Part 900 (Shelter for Families) of Title 18 (Department of Social Services) of the New York City Administrative Code sets forth the minimum requirements for homeless shelters. Section 900.1 (c) provides that a "local social services district may seek reimbursement pursuant to this Part for the costs of families referred to a facility which provides families with shelter substantially similar to a house or an apartment, including individual private cooking areas and private bathrooms, and which meets or exceeds the requirements of this Part for tier II facilities, as defined in section 900.2 . . ." Section 900.2 (c) (2) defines a tier II facility as "a facility subject to the provisions of this Part which provides shelter and services to 10 or more homeless families . . ." Section 900.12 lists the minimum environmental requirements, including heating and hot water, as well as kitchen ventilation. Section 900.12 does not require air conditioning.

Footnote 14: The full report is available at http://www.semo.state. ny.us/uploads/Section%203. H%20-%20Extreme%20Heat%20Hazard%20Profile.pdf [accessed Nov. 1, 2009]).

Footnote 15: The plaintiffs have presented no evidence concerning the air temperature, dew point temperature, and/or heat index in the apartment on July 3, 2002. The plaintiffs had no thermometer to measure the air temperature. Their expert, Mr. Sothern, measured the air temperature in the apartment on August 13, not on July 3, and he measured it in the children's bedroom, not in the living room where the infant spent his entire day (Sothern's Affidavit, dated July 6, 2009, ¶¶ 2, 6). He fails to provide the August 2002 Local Climatological Data Report to enable the court to compare the air temperature, the dew point temperature, and the heat index on August 13 with those of July 3.

Footnote 16: CPLR 3101 (d) (1) (i) provides, in relevant part:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion.

Footnote 17: See http://dr.yutsis.com (accessed Nov. 1, 2009).