Ozugowski v City of New York

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[*1] Ozugowski v City of New York 2004 NY Slip Op 51449(U) Decided on June 18, 2004 Supreme Court, Queens County Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 18, 2004
Supreme Court, Queens County

ALICJA OZUGOWSKI, Individually and as Administratrix of the Estate of ADAM OZUGOWSKI, Deceased,

against

THE CITY OF NEW YORK and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant.



11945/02

Phyllis Orlikoff Flug, J.

Defendant, The City of New York, moves to dismiss the action on the grounds that they [*2]are not a proper party to the action; and plaintiff failed to timely file a Notice of Claim.

This is an action for negligence brought by Alicja Ozugowski individually and as administratrix of the Estate of Adam Ozugowski, deceased, arising from an incident on March 25, 2002. Pursuant to a 911 call, by the wife's niece, police responded to decedent's home. He allegedly slashed his wrists and was transported to Queens Hospital Center by New York City Fire Department/Emergency Medical Service. He was evaluated and transferred to the psychiatric emergency room. After evaluation, by a psychiatrist on the next day, he was discharged and subsequently committed suicide on April 3, 2001.

The essence of plaintiff's claim is that the City of New York through their emergency medical service and police failed to accurately note and report the conditions upon which they rescued decedent, to wit, he was barricaded in his house with shotguns and weapons and allegedly had written in blood on the wall. Plaintiff alleges that if this information had been communicated, the psychiatrist department would not have found him "cooperative, pleasant, coherent, showed no signs of delusions or suicidal idealism and was cognitively intact", and thereby released him.

A party moving for summary judgment is obliged to prove through admissible evidence that the movant is entitled to judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557 [1980]), and has the heavy burden of demonstrating the absence of a genuine issue of material fact on every relevant issue raised (Simon v. Wohl, 93 AD2d 811 [2d Dept. 1983]). Anything less requires a denial of the motion for summary judgment, regardless of the sufficiency of the opposing papers (Yates v. Dow Chemical Co., 68 AD2d 907 [2d Dept. 1979]).

To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067 [1979]).

Defendants made a prima facie showing of entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 NY2d 557). The burden of proof then shifts to plaintiff to come forward and lay bare their evidence to raise a triable issue of fact.

Plaintiff alleges its claim against the City of New York arises solely from the failure of the paramedics "to properly note and then report the condition of the scene and conditions in the house". Nowhere does plaintiff cite statutory or expert authority requiring the paramedics to report the condition in which they find a the patient, or a duty to do so. Paramedics have a duty to transport the injured party, safely and quickly to the hospital. Plaintiff does not submit any medical expertise to establish that the psychiatrist was prevented from properly evaluating decedent, or in plaintiff's own words, "whether it was appropriate to release plaintiff's decedent from Queens Hospital". [*3]

Plaintiff also fails to establish that the paramedics breached a common law duty of care by merely transporting the patient to the hospital, or that the omission to chart his condition was the proximate cause of Mr. Ozugowski's death.

Furthermore, plaintiff cannot establish that a special relationship existed between decedent and paramedics.

A municipality would not be liable for injuries unless a "special relationship" existed with defendant City. The elements are: (1) an assumption by the municipality, through promises or actions, 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 affirmative undertaking (see, Shinder v. State of New York, 62 NY2d 945,946; see also, Sorichetti v. City of New York, supra, p. 469; ef. Nallan v. Helmsley- Spear, Inc., 50 NY2d 507).

Plaintiff failed to raise a triable issue of fact that such a special relationship existed or that any failure by the paramedics were the proximate cause of the harm (death of the plaintiff)(see, Garner v. City of New York, __AD2d___(April 5, 2004); Pingtella, Jr., et.al. V. Jones, MD, 305 AD2d 38).

Nor can plaintiff establish that there was any detrimental reliance by decedent such as to cause him to forego other avenues of treatment and therefore there was no special relationship (see, Apostolakis, supra; also see, Merced v. City of New York, 75 NY2d 798).

Accordingly, the motion by City of New York is granted, and the branch of the motion to dismiss on Notice of Claim grounds is rendered moot.

June 18, 2004 ____________________

J.S.C.