McRae v City of New York

[*1] McRae v City of New York 2008 NY Slip Op 50414(U) [18 Misc 3d 1142(A)] Decided on March 5, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2008
Supreme Court, Kings County

Sterling McRae, Individually and as Administrator of the Estate of Geneva Robinson McRae, Deceased, Plaintiff(s),

against

City of New York, Vanderveer Estates Holding, L.L.C., Foster Apartments Group, L.P., and Hi Tech Elevator Co., Inc., Defendant(s).



12252/01



The plaintiff is represented by Pearlman, Apat & Futterman, LLP, Esq., by Martin M. Seinfeld, Esq., of counsel.

The defendant City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Sosimo J. Fabian, Esq., of counsel, defendant Vanderveer Estates Holding, L.L.C. by Harrington, Ocko & Monk by Edward C. Haynes, Esq., of counsel, defendant Hi Tech Elevator Co., Inc. by Wilson, Elser, Moskowitz, Edelman & Dicker LLP by Joseph P. Wodarski, Esq., of counsel

Robert J. Miller, J.

This case involves the tragic death of Geneva Robinson McRae who died of a heart attack on May 8, 2000. Plaintiff, the Administrator of the McRae Estate ("the Estate") alleges that "the chronic failure of the elevator to operate [in her apartment building] was a substantial contributing factor to the decedent not timely seeking medical aid."

The Administrator commenced this action against the City of New York ("City"), Vanderveer Estates Holding, LLC ("Vanderveer"), Foster Apartments Group, LP ("Foster") and Hi Tech Elevator Co., Inc. ("Hi-Tech").

The Administrator alleges the following against the City: [*2]

12.Defendant had a duty to timely respond to calls for emergency

assistance.

13.An ambulance did not respond to the apartment for approximately

45 minutes to the original emergency call.

14.The City of New York, its agents, servants and/or employees

were negligent in the manner in which they dispatched an

ambulance and responded to the call from the dispatchers call.

15.That the City of New York was negligent in the manner in

which they trained, supervised, retained and controlled the

911 dispatchers and ambulance personal.

16.That the negligence of the City of New York was a proximate

contributing cause to the injuries to the Plaintiff's decedent which

resulted in her death.

17.That this action falls within one or more exceptions as set forth in

CPLR § 1602.

18.As a result of the foregoing, prior to her death, plaintiff's decedent

was caused to sustain severe and permanent personal injuries, was

caused to suffer severe pain and mental anguish and death, and

her estate was caused to expend and become obligated to expend

sums of money for funeral services and related expenses.

The Administrator alleges the following against Vanderveer, the owner of the apartment

building:

43.Defendants Vanderveer and Foster owed to the Plaintiff's decedent

the duty to safely and properly own, operate and maintain the

building including the elevator therein.

46.Upon information and belief it was the duty of the defendants, their

agents, servants and employees to maintain the aforesaid premises

and elevator in a safe proper lawful and careful manner so as to keep

the premises in a safe and proper condition.

47.As a result of the elevator not being operable the emergency

personal were unable to timely treat the Plaintiff's decedent and

remove her to a hospital facility.

48.That said incident and resulting injuries were caused solely and

wholly by reason of the negligence of the carelessness, recklessness

of the Defendants, their agent's servants and employees without any

negligence on the part of the plaintiff contributing thereto.

49.As a result of the foregoing, prior to her death, plaintiff's decedent

was caused to sustain severe and permanent personal injuries, was

caused to suffer severe pain and mental anguish, and death and her [*3]

estate was caused to expend and become obligated to expend sums

of money for funeral services and related expenses.

The Administrator alleges the following against Hi Tech, the company who repaired and

serviced the elevator:

59.Upon information and belief, on May 8, 2000, and at all times

hereinafter mentioned, Defendant HI TECH repaired the elevator

at the aforesaid premises.

60.On May 8, 2000 the elevator at the aforesaid premises was out of

service and had, upon information and belief, been out of service

for more than three (3) weeks prior thereto.

61.As a result of the elevator not being operable the emergency

personal were unable to timely treat the Plaintiff's decedent

and remove her to a hospital facility.

63.That said incident and resulting injuries were caused solely and

wholly by reason of the negligence of the carelessness,

recklessness of the Defendants, their agent's servants and

employees without any negligence on the part of the plaintiff

contributing thereto.

64.As a result of the foregoing, prior to her death, plaintiff's

decedent was caused to sustain severe and permanent personal

injuries, was caused to suffer severe pain and mental anguish,

and death and her estate was caused to expend and become

obligated to expend sums of money for funeral services and

related expenses.

The defendant Foster is no longer a party to the action.

All remaining defendants now move for summary judgment.

The City argues that, as a matter of law, the claims are barred by "the principal of governmental immunity because no special duty existed between the plaintiff and defendant."

In addition, the City asserts based on deposition testimony of decedent's husband that the decedent regularly complained of chest pains, had heart problems and was under a doctor's care for high blood pressure. In addition, it was established that the elevator in the building was rarely functional and was out of order on May 8, 2000.

The affidavit of Ms. Annie Robinson, the mother of the decedent, provided further details

of the events that occurred on May 8, 2000, as follows:

5.On May 8, 2000 my daughter came down to my apartment

at approximately 2:30 in the afternoon. She said she was not feeling well

and as her husband was going to work did not want to be alone in her [*4]

apartment. She had to walk down the steps to come to my apartment,

as the elevator was once again out of order. I suggested to her that we

call an ambulance, however, but she was afraid of being carried down

the five flights of stairs because she was overweight. She said she

would rest, as she thought she was only having an asthma attack,

and if she did not felt better shortly, she would call a cab, walk

the stairs and go to the emergency room at the hospital. My other

daughter, Yvonne Holmes was in the apartment with us.

6.Shortly after three clock when she was not feeling

any better, we convinced her that she should go to the hospital.

She again refused an ambulance because she did not want to be

carried down the five flights of stairs. However, she said would

walk down the steps and my son would drive her to the emergency

room at Kings County Hospital, but wanted to rest a little before

walking down five flights of stairs. She closed her eyes, was

breathing and appeared to be resting deeply. We did not disturb

her, thinking that we would all go to the hospital when she woke

up. Sometime after four we tried to rouse her and could not. My

daughter was still breathing. My daughter, Yvonne, called 911

and then called my son, the Reverend Willie Robinson, who also

called an ambulance. My son, the Reverend Willie Robinson, has

also passed away. It seemed that it took a long time for the

ambulance to come.

City records document that at 4:45 P.M. a call was made to 911. At 4:51 P.M. a City unit was assigned and the unit was on the scene at 5:00 P.M. - 13 minutes after the call.

The City also submits the affidavit of Dr. Thomas Kwiatkowski, Chair of the Department of Emergency Medicine of Long Island Jewish Medical Center, who opined as follows:

3.The records indicate that on May 8, 2000, at 4:50 p.m., an

advanced life support unit was assigned to a call for an unconscious female.

The unit was en route by 4:51 p.m. At approximately 5:00 p.m., the EMS

paramedics assigned to the call arrived on the scene and began treatment

of the decedent. The decedent was found in cardiac arrest, without a pulse,

and without respirations. While the survival rate for a patient presenting

in this way is dismal beyond three to four minutes, this response time of

approximately nine minutes is, considering the realities of New York

City traffic conditions, a very good response time. Also noteworthy is

the fact that the nine minute response time includes the unit's "vertical

response."[FN1] As such, the combined response time does not indicate any [*5]

inordinate delay in responding to a high priority call. In fact, it

represents the complete opposite a very good response time in a densely

populated, traffic-heavy city.

5.Based on my knowledge, experience, and review of these

records, it is my opinion, within a reasonable degree of medical certainty,

that the care, treatment, and services rendered by the defendant to the

decedent were at all relevant times proper, timely, and in accordance

with the accepted standards of medical practice and the policies and

procedures of the Emergency Medical Services then and there existing.

6.Furthermore, based on the aforementioned records and

withina reasonable degree of medical certainty, none of the actions

or alleged inactions by the EMS paramedics resulted in or contributed

to Geneva Robinson McRae's death.

Plaintiff interposes no opposition to the City's motion for summary judgment stating that "based upon...the depositions and documentory discovery, the plaintiff would be unable to establish a prima facie case" against the City.

Vanderveer and Hi-Tech also move for summary judgment which plaintiff opposes.

Vanderveer argues that since plaintiff's case was based on Vanderveer's creating or permitting, as alleged in the plaintiff's Bill of Particulars, a hazardous condition to develop "to wit, a broken and inadequate elevator at the premises" and in light of plaintiff's acknowledging that the Estate can't establish a prima facie case against the City, that the plaintiff's case collapses. Vanderveer argues: "Under no circumstances can Plaintiff now prove that the elevator caused the

Plaintiff to receive late medical response, as Plaintiff concedes there was no late response."

Hi-Tech in support of its motion for summary judgment argues that it had no duty to the decedent, as it was a service contractor without a contract to maintain the elevator and in any event that the broken elevator was not the proximate cause of the death.

Plaintiff opposes the motions of Vanderveer and Hi-Tech and cross moves for leave to supplement the Bill of Particulars as plaintiff seeks to add the following:

...in trapping the decedent in her mother's apartment by rendering

it impossible for the decedent to exit the building without being

transported; in making it impracticable, if not impossible, for the

decedent to go to the hospital herself, as she desired, without an

ambulance; in creating an obstacle to the decedent obtaining

and seeking medical aid; in causing a delay in the ability of the

decedent to seek and obtain medical care and aid; in creating and

permitting an unsafe condition to exist...

With respect to the City's motion, it is granted without opposition. [*6]

Regardless of plaintiff's theory of negligence the first as set forth in the original Bill of Particulars that both Vanderveer and Hi-Tech breached their duty to the decedent to maintain working elevators or as set forth in the supplemental Bill of Particulars that defendants by not maintaining the elevators trapped the decedent "in her mother's apartment by rendering it impossible for the decedent to exit the building without being transported," plaintiff is unable to establish a prima facie case.

With respect to Vanderveer, while it is clear that Vanderveer owed a duty to decedent to have properly operating elevators in light of the landlord-tenant relationship (Multiple Dwelling Law § 78(1), Wagner v Grinnell Housing Development Fund Corp., [1st Dept.,1999], leave to appeal denied 99 NY2d 502.), plaintiff has failed to meet its burden that the breach of the duty here to provide elevators in working order was the proximate cause of decedent's death. (Martinez v Lazaroff, 48 NY2d 819 [1979], Rivera v City of NY, 11 NY2d 856 [1962], Kerrigan v City of NY, 199 AD2d 367 [2nd Dept., 1993], Benaquista v Municipal Housing Authority of City of Schenectady, 212 AD2d 860 [3rd Dept.,1995], Bauk v Lincoln Shore Owners, Inc., 229 AD2d 370 [2d Dept.,1996], Rubin v Staten Island University Hospital, 833 NYS2d 241 {39 AD3d 618} [2nd Dept., 2007].)

With respect to Hi-Tech, the Court does not have to determine whether Hi-Tech owed a duty to decedent because plaintiff is unable to establish that the breakdown of the elevator was the proximate cause of decedent's death.

As the Court of Appeals held in Martinez v Lazaroff, 48 NY2d 819:

We agree that, as a matter of law, the failure of defendants to supply their

tenants with hot water was not the proximate cause of the injuries suffered

by the infant plaintiff. (citations omitted). In this instance it was not the

failure to supply hot water which was the direct cause of the injuries; the

causal connection between the two was attenuated.

The Second Department reversed a denial of summary judgment in Kerrigan v City of New York, 199 AD2d 367 [2nd Dept., 1993], where plaintiff had sued an elevator company for failure to have the elevator in operation and plaintiff was injured on an escalator. The Court noted:

The plaintiff was injured when he and a coworker were transporting

tables on an escalator at the Jacob Javits Convention Center. Near the bottom

of the escalator, one of the tables slipped off a dolly, trapping the plaintiff's

foot between the escalator stair and the bottom of the escalator, and crushing

the plaintiff's foot. The plaintiff commenced this action against, among others,

the appellant, on the theory that one of its elevators was out of service on the

day of the accident, thus forcing the plaintiff to use the escalator to transport

the tables. We conclude that, as a matter of law, the appellant's failure to

have the elevator in operation was not a proximate cause of the plaintiff's

injuries.

In the instant case, where, as here, the ambulance response time was within a reasonable period, the decedent had suffered from a previous heart ailment and the family had delayed in calling for assistance for over an hour, plaintiff cannot establish that the failure of the elevator to operate was a proximate cause of plaintiff's death. An intervening act, here the non-action to seek [*7]medical assistance, breaks the causal nexus when it is not forseeable in the normal course of events. Derdarian v Kelly Const. Corp., 51 NY2d 308 (1980), Parvi v City of Kingston, 41 NY2d 553 (1977) Further, the inoperable elevator was not the substantial cause of the events which led to plaintiffs death, Manno v New York City Tr. Auth., 218 Ad2d 451 (1st Dept., 1996), affd 89 NY2d 824 (1996), Baptiste v New York City Trans. Authority, 28 AD3rd 385 (lst Dept., 2006).

Accordingly, the motions for summary judgment of the defendants City of New York, Vanderveer, and Hi-Tech are granted. The Clerk of the Court is directed to enter judgmemt dismissing the complaint with prejudice as to all parties. Plaintiff's cross motion to file a supplemental Bill of Particulars is denied as moot.

This constitutes the decision and order of the Court.

E N T E R :

_________________________________________

ROBERT J. MILLER

Justice

Footnotes

Footnote 1:Vertical response is a term that refers to the time it takes an ambulance crew to make contact with a patient after responding to a scene, such as an apartment complex, as in the current situation.