Lebron v New York City Hous. Auth.

[*1] Lebron v New York City Hous. Auth. 2016 NY Slip Op 51547(U) Decided on October 19, 2016 Supreme Court, Bronx County Barbato, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2016
Supreme Court, Bronx County

Anaima Lebron as ADMINISTRATIX of the Goods and Chattels of YOVANNA ANGOMAS and ANAIMA LEBRON, Individually, Plaintiffs,

against

The New York City Housing Authority and THE CITY OF NEW YORK, Defendants.



303775/2010



Movant:

The City of New York

Corporation Counsel

Michael A. Cardozo, Esq.

100 Church Street

New York, New York 10007

Cross-Movant:

New York City Housing Authority

William P. Pawlow, Esq.

125 Broad Street, 12th Floor

New York, New York 10004

Respondent:

Anaima Lebron, as Administratix of the Goods and Chattels of Yovanna Angomas

William Gallina, Esq.

1180 Morris Park Avenue

Bronx, New York 10461
Ben Barbato, J.

Upon the foregoing papers defendant City of New York ("City")'s motion to renew/for summary judgment is granted. The motion by defendant NYCHA for an order granting summary judgment is hereby denied.

This negligence action is to recover damages allegedly sustained by the plaintiffs when a broken elevator inside the premises located at 2280 Randall Avenue, Bronx, New York, delayed emergency medical service workers from transporting the decedent to a hospital for more extensive treatment after she suffered cardiac arrest inside her residence on October 25, 2008. At the time of the incident, the premises were owned and operated by defendant NYCHA. According to the facts adduced herein, at approximately 8:00 p.m. on October 25, 2008, the decedent informed her mother, plaintiff Anaima Lebron ("Lebron"), that she was suffering from an asthma attack, at which point plaintiff Lebron instructed her other daughter, Ana Inez Lebron, to call 911. Plaintiff Lebron stated that she began to perform CPR on the decedent as she waited for paramedics to arrive.

FDNY EMTs Victor Roman ("Roman") and Edwin Mendez were the first emergency services workers to arrive at the apartment, approximately five to seven minutes after Ana Inez placed the emergency call. Mr. Roman first observed the decedent laying on the floor, appearing not to be breathing, prompting him to check the decedent's pulse. After discerning that the decedent had radial pulses - indicative of a failing respiratory situation despite a heartbeat, Mr. Roman began to treat the decedent with a oropharyngeal airway ("OPA") device, notified dispatch that the decedent's condition was more critical than originally believed, and requested the assistance of paramedics from an Advanced Life Services ("ALS") unit. When the paramedics arrived, they attempted to put the decedent on a Lifepak 12 monitor, which experienced 60-cycle interference, forcing the paramedics to rely on the use of an Automated External Defibrillator ("AED") until another ALS unit was able to bring a similar cardiac monitor to the location.

Upon the arrival of the second ALS unit, the paramedics decided to transport the decedent to the nearest hospital. However, due the decedent's weight (approximately 400 pounds), the [*2]paramedics requested that FDNY firefighters bring a "stokes basket" to the location to assist with the transport. After placing the decedent in the stokes basket, the paramedics boarded the elevator to bring the decedent downstairs from her apartment, which was located on the seventh floor of the building. During the elevator's descent, it became stuck for approximately thirty minutes (according to the plaintiff). Once the paramedics were able to transport the decedent, she was brought to the nearest hospital, and was pronounced dead shortly after her arrival. The decedent's mother, plaintiff Lebron, thereafter filed a summons and complaint against the defendants for negligent administration of emergency services and premises liability for failure to properly maintain the elevator.

DEFENDANT CITY'S MOTION

Defendant City seeks relief on two grounds. First, it moves for an order granting summary judgment and dismissal of the plaintiff's claims for personal injury set forth in the first and second causes of action of the complaint, pursuant to CPLR 3211(a)(5), CPLR 3212, CPLR 217-a and General Municipal Law 50-i on the basis that the claims are untimely as a matter of law. Second, it moves for an order, pursuant to CPLR 2221(e), granting renewal of defendant City's motion to dismiss and/or, in the alternative, for summary judgment, which was previously denied by Justice Robert E. Torres' decision and order dated December 9, 2010.

As an initial matter, it is axiomatic that "[p]arties [are] not permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 434 [1st Dept. 2014], quoting Phoenix Four v Albertini, 245 AD2d 166, 167 [1st Dept. 1997]). Furthermore, a party who fails to raise a statute of limitations defense within CPLR 3211(e)'s prescribed time frame for a CPLR 3211(a)(5) motion - to wit, in the party's answer or a CPLR 3211 motion filed prior to when service of the responsive pleading is required - is deemed to have waived such a defense. Therefore, Defendant City incorrectly asserts that Justice Stanley Green's decision dismissing the plaintiffs' claim for pain and suffering and derivative claim as asserted against defendant NYCHA constitutes the law of case, requiring dismissal of those causes of action filed against defendant City. Rather, because defendant City failed to raise the defense in its answer, it cannot now avail itself of the relief conferred by CPLR 3211(a)(5).[FN1]

With respect to that aspect of defendant City's motion seeking to renew its previous motion to dismiss/for summary judgment, CPLR 2221(e) mandates that a motion for leave to [*3]renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination [and] shall contain reasonable justification for the failure to present such facts on the prior motion." Although there are no time constraints governing when a party may file a motion for leave to renew (Dauria v Castlepoint Ins. Co., 120 AD3d 1016 [1st Dept. 2014] [internal citations omitted]), renewal is not intended to function as a "second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Rubenstein v Goldman, 225 AD2d 328, 329 [1st Dept. 1996]), quoting Matter of Beiny, 32 AD2d 190, 210 [1st Dept. 1987], lv dismissed 71 NY2d 944 [1988]). Defendant City contends that case law rendered after Justice Torres' decision, as well as deposition testimony unavailable at the time of defendant City's initial motion, mandate a grant of leave to renew.[FN2] The two cases defendant City relies upon, taken together, establish that the provision of emergency medical services constitutes a "governmental function," thereby requiring the plaintiff to demonstrate that there was a "special duty" (Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013]), the existence of which is a question of law to be decided by the court (Valdez v City of New York, 18 NY3d 420 [2013]).

Defendant City submits several deposition transcripts, summarizes various portions which it believes to be pertinent, and argues that such testimony constitutes "new evidence." However, the mere fact that the depositions had not been completed at the time of defendant City's prior motion does not automatically render the content contained in the deposition testimony new facts. Defendant City's failure to identify which aspects of the testimony presented new information counsels against finding that defendant City has satisfied its burden to warrant the relief requested herein. Furthermore, the failure of defendant City to offer an explanation for their failure to depose relevant parties prior to moving for summary judgment strongly militates against treating the testimony as "new" evidence (Justino v Santiago, 116 AD3d 411 [1st Dept. 2014]).[FN3] Thus, the fate of defendant City's motion to renew with respect to the plaintiff's cause of action for negligent administration of emergency services rises and falls upon its claim that the holdings in Applewhite and Valdez reshaped the law so as to warrant a different conclusion upon the facts presented at the time.

The relevant parts of Justice Torres' decision state, in sum and substance, that the plaintiffs had established a viable cause of action and that there remained issues of fact with [*4]respect to whether the City agents owed the plaintiffs the requisite duty of care and whether their actions were negligent. Defendant City's argues that, because the decision uses the phrase "issue of fact" in denying its motion for summary judgment, the determination was predicated upon legal reasoning in contravention of the Valdez Court's proposition that the question whether there was a "special duty" is one of law. Although the language of Justice Torres' decision is somewhat ambiguous, it is clear that there was no explicit finding that the plaintiff had established the existence of a special duty as a matter of law. This court now determines that the Valdez framework would have compelled a different determination, warranting a grant of leave to renew.

To sustain a negligence action against a municipality for the conduct of its agents who were engaged in a governmental function, the plaintiff bears the burden of demonstrating that the City owed a "special duty" to the plaintiff at the time of the injury (Lauer v City of New York, 95 NY2d 95 [2000]). New York has recognized three situations in which a "special duty" can arise: "(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known or dangerous safety condition" (Applewhite, 21 NY3d at 426). For purposes of this motion, the dispositive issue is whether defendant City voluntarily assumed a greater duty when the EMTs initiated emergency medical services. Generally, the City will only be said to have voluntarily assumed a special duty under circumstances that evince that the following four elements were present:

(1) an assumption by the municipality, through promises or action, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's undertaking (Cuffy v City of New York, 69 NY2d 255, 260 [1987]).

The Applewhite Court analyzed the concept of "special duty" as applied to facts similar, but distinguishable, to the one presented herein, and the nuances highlighted in Applewhite with respect to the questions of whether there was an "affirmative duty" or "justifiable reliance" strongly support defendant City's position. In reaching its decision, the Applewhite Court noted that the plaintiff's mother specifically requested that the FDNY EMTs transport her daughter to a nearby hospital. Instead of acquiescing to her request, the FDNY EMTs purportedly stated that they were awaiting the arrival of ALS ambulance personnel instead. Specifically, it was the EMT's decision not to follow the mother's wishes that raised an issue of fact regarding an assumption of an affirmative duty (Applewhite, 21 NY3d at 431). Because it would strain logic to imagine that the Applewhite Court intended to expose the City to liability whenever an EMT is unable to preserve the life of a sick or injured patient, it is evident that there must be some greater action or statement made by the EMT to dissuade the plaintiff from following another course of action before liability may be imputed to the municipality. The transcript of plaintiff Lebron's GML 50-h hearing testimony, which was before the court on defendant City's first [*5]motion to dismiss, reveals the absence of any such act by the EMT. In fact, plaintiff Lebron attested that she left the room where the decedent was located upon the arrival of the EMTs and that was unaware of the manner in which the EMTs were treating the decedent because her attention was focused on caring for children in the apartment. Thus, there is no evidence that the EMTs acted in contravention of the plaintiff's asserted course of treatment, and therefore no additional undertaking by the EMTs that would support a finding that they assumed an affirmative duty.

With respect to the issue of justifiable reliance, the Applewhite Court found it "possible that a fact finder could conclude that it was reasonable for [plaintiff's] mother to rely on the EMT's alleged assurances rather than seek an alternative method for transporting [plaintiff] to the nearby hospital," raising a triable issue of fact on the issue of justifiable reliance (Applewhite, 21 NY3d at 431). The plaintiffs herein have not furnished any evidence that raises the question of whether defendant City, by means of their EMTs, "may have 'lulled' plaintiffs into a false sense of security [and] the EMTs' statements or conduct deprived [them] of assistance that could reasonably have been expected from another source" (Applewhite, 21 NY3d at 431 [internal citations omitted]). The plaintiff's failure to raise a triable issue of fact regarding whether the circumstances evince a "special duty" requires this court to grant that aspect of defendant City's motion for summary judgment on the plaintiff's negligent administration of emergency services cause of action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Defendant City also seeks an order granting it summary judgment on the plaintiff's premises liability cause of action on the basis that it did not own or manage the property at the time of the decedent's death. Although defendant City previously asserted this defense in its first motion for summary judgment and does not raise any upon which to grant renewal, it does not appear as though the court addressed the issue in its December 9, 2010 decision. Consequently, in the interests of justice and judicial economy, this court will consider the matter herein. It is uncontested that defendant City did not own, manage, operate, maintain or control the property, and therefore, the plaintiff cannot bring a cause of action grounded in the theory of premises liability as a matter of law (White v New York City Tr. Auth., 308 AD2d 341 [1st Dept. 2003]).

DEFENDANT NYCHA'S MOTION

The sole cause of action against defendant NYCHA is premised on its purported negligence in causing, permitting or maintaining a faulty broken elevator, which plaintiff asserts delayed the significantly delayed the decedent's transportation to the nearest hospital for life-saving medical treatment. Defendant NYCHA argues that it is entitled to summary judgment because it did not have actual or constructive notice of the elevator's condition.

It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974]; CPLR [*6]3212[b]). The court's function on a motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). For summary judgment to be granted, the moving party must establish his or her cause of action or defense by presenting evidentiary proof in admissible form that would be sufficient to warrant the court in directing judgment in favor of the moving party (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

To prevail on a common-law negligence claim for an injury resulting from a perilous premises condition or defect, a plaintiff is required to prove that the defendant either created the accident-inducing condition or that he or she had actual or constructive notice of said condition and thereafter failed remedy it within a reasonable period of time (Mercer v City of New York, 88 NY2d 955 [1996]; Perlongo v Park City 3 & 4 Apartments, Inc., 31 AD3d 409, 410 [2d Dept. 2006]). Although couched under different theories, the courts have found that a defendant had constructive notice of an alleged defect contingent when there was evidence establishing both that said condition was "visible and apparent" and that said condition existed for a sufficient length of time prior to the accident to allow the defendant to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Mitchell v New York University, 12 AD3d 200, 201 [1st Dept. 2004]; Canning v Barney's New York, 289 AD2d 32, 33 [1st Dept. 2001]).

In support of its motion, defendant NYCHA submits the deposition testimony of Muhammed Gathers ("Gathers"), who was employed by defendant NYCHA as the assigned elevator mechanic for decedent's building from 2007-2009. Mr. Gathers attested that, when a tenant or NYCHA employee reported a problem with one of the elevators, a work order request was generated and the elevator dispatcher (operating out of the central housing office) would inform Mr. Gathers about the issue. After receiving such a call, Mr. Gathers would pick up a work ticket and then proceed to the broken elevator to try to alleviate the problem. He further stated that he performed preventative maintenance of the elevators monthly, which involved oiling and changing the parts, as well as checking the elevators' operability. Defendant NYCHA, highlighting both Mr. Gathers' averment that he did not receive any complaints about the elevator in question on the date of decedent's death and normal course of maintenance, alleges that there is no information from which a fact finder could conclude that defendant NYCHA had actual or constructive notice of the defective condition of the elevator.

In opposition, plaintiff Lebron directs this court's attention to Mr. Gathers' acknowledgement that NYCHA's records indicate problems with the elevator in question on six separate occasions within 45 days preceding the date of decedent's death. The court agrees with plaintiff's contention that numerous complaints within such a short period of time raises a triable issue of fact as to whether the elevator constituted an ongoing and recurring dangerous condition [*7]which defendant NYCHA failed to adequately address (David v New York City Hous. Auth., 284 AD2d 169 [1st Dept. 2001]).

Nor does this court find defendant NYCHA's claim that the plaintiff will be unable to prove that the broken elevator was a proximate cause of decedent's death to be persuasive. Defendant NCYHA alleges that the decedent had been clinically dead for approximately one hour prior to entering the elevator, precluding a finding that the elevator contributed to her demise. However, during his deposition, Alex Pinkhasov, one of the paramedics who treated the decedent, attested that the equipment available to them at the time was insufficient to get a "good" reading of the heart inside someone of decedent's size. Therefore, he opined that there was a possibility that the decedent's heart was still beating and that an ultrasound reading was necessary to accurately assess the decedent's condition. Therefore, defendant NYCHA's own evidence raises an issue of fact as to whether the elevator malfunction was a contributory factor in causing decedent's death by delaying the administering of more advanced treatment.

Accordingly, the motion by defendant City for an order granting leave to renew and, upon renewal, summary judgment is hereby granted. The motion by defendant NYCHA for an order granting summary judgment is hereby denied.

Movants are directed to serve a copy of this order with notice of entry upon all parties within twenty (20) days of entry and file proof thereof with the clerk's office.

This constitutes the decision and order of this court.

Dated: October 19, 2016

ENTER:

_____________________________

BEN BARBATO, J.S.C. Footnotes

Footnote 1:The City also attempts to argue that the court should dismiss the plaintiff's claims for personal injury and her derivative claims as untimely because it is the "law of the case," as the City and NYCHA are "in privity" with one another. The City cannot claim to be in privity with defendant NYCHA for purposes of obtaining a favorable result on statute of limitations grounds while simultaneously asserting that it is not in privity with defendant NYCHA for purposes of imputing liability on the premises liability cause of action. Nor are the "issue preclusion" arguments compelling, as a statute of limitations defense can be waived.

Footnote 2:Defendant City also attacks the sufficiency of the plaintiff's Notice of Claim on the basis that it does not specifically plead a special duty. However, because it raised this argument in its original motion to dismiss, failed to file a motion to reargue and now fails to include grounds upon which to renew this defense, defendant City improperly inserts this issue herein.

Footnote 3:This court would likely reach a different conclusion under circumstances evincing that defendant City was required to respond to a motion and, through no fault or lack of diligence of its own, was unable to complete depositions until after the return date of such motion (see Luna v Port Authority of New York and New Jersey, 21 AD3d 324 [1st Dept. 2005]).