Benn v New York Presbyt. Hosp.
Annotate this CaseDecided on June 1, 2012
Supreme Court, Kings County
Janeyhska Benn, an infant by her mother and natural guardian ROSA JONES and ROSA JONES, individually, Plaintiff,
against
New York Presbyterian Hospital, ARON Z. WEICHBROD, CITY OF NEW YORK and NEW YORK CITY POLICE DEPARTMENT, Defendants.
15281/08
Plaintiffs were represented by Martin A. Wolfson, Esq., Ronemus & Vilensky, New York NY; Defendant, the City of New York, was represented by Shannon Colabrese, Esq., Corporation Counsel, Brooklyn, NY; Defendants, New York Presbyterian Hospial and Aron Weichbrod, were represented by Steven M. Christman, Esq., Marshall Dennehey Warner Coleman & Goggin, New York NY.
Richard Velasquez, J.
Plaintiff/Infant, a seventh grader, seeks damages for injuries she sustained when hit by an ambulance while crossing a street on her way to school.
On May 19, 2008, Plaintiff, along with two friends, took the B68 bus to Avenue K and Coney Island Avenue to attend school at PS 99. They had to cross Coney Island Avenue to get to the school. A school crossing guard assigned to the intersection was stationed on the corner of the school across from the bus stop. Plaintiff began crossing the street while the light was green, however, the light changed before she reached the sidewalk. Plaintiff,while still in the crosswalk, was struck by Defendant New York Presbyterian Hospital's ("Presbyterian Hospital") ambulance which was traveling on Coney Island Avenue.
Plaintiff contends that the crossing guard failed to properly control traffic at the intersection and assist her in safely crossing the street, and that the ambulance driver's negligence caused the accident.
Defendants Presbyterian Hospital and Aron Weichbrod, the driver of the ambulance, move for summary judgment dismissing the complaint pursuant to CPLR §3212. Defendants City of New [*2]York and New York City Police Department cross move for summary judgment dismissing the complaint pursuant to CPLR §3212.
Defendants Presbyterian Hospital and Weichbrod contend that they received an emergency trauma call, turned on the ambulance's flashing lights and sirens, and proceeded down Coney Island Avenue; as they approached the intersection at Avenue K, the traffic light was red, the cars were stopped; that they slowed down, entered into the left hand turning lane and proceeded toward the crosswalk; the light turned green and Plaintiff/Infant ran into the passenger sideview mirror.
Defendants argue that since they were responding to an emergency situation, pursuant to Vehicle & Traffic Law §1104, they could only be found liable for Plaintiff's injuries if their conduct was reckless. They argue their actions were not unreasonable nor did they demonstrate a reckless disregard of a known risk.
In opposition, both the Plaintiff and the City Defendants argue that Defendants Presbyterian Hospital and Weichbrod are not entitled to the reckless disregard standard of care. They argue that the reckless disregard standard of care in Vehicle and Traffic Law § 1104(b) is only for certain specific conduct and that Defendants' conduct does not fall into any of those categories. Defendant Presbyterian Hospital and Weichbrod argue that the driver's action of moving into the left hand turning lane to move around the traffic and to proceed straight ahead falls within VTL §1104(b)(4).
The reckless disregard standard of care in VTL §1104(e) is limited to accidents caused by conduct privileged under §1104(b). Section 1104(b) states that the driver of an authorized emergency vehicle may : (1) stop, stand or park irrespective of the provisions of the title [VII]; (2) proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation; (3) exceed the maximum speed limits so long as he does not endanger life or property; (4) disregard regulations governing directions of movement or turning in specified directions. "Any other injury causing conduct of such a driver is governed by the principles of ordinary negligence" (see Kabir v County of Monroe, 16NY3d 217 [2011] ).
The Court finds that Defendants failed to meet their prima facie burden of showing entitlement to summary judgment relief (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Defendants contend that the ambulance was in the left hand turning lane at the time of the accident, with the intention of proceeding forward. They argue that the injury producing conduct was driving straight ahead from the left hand turning lane and that such conduct is entitled to the reckless disregard standard. However, Defendants Presbyterian Hospital and Weichbrod failed to submit any evidence indicating that driving in the left hand turning lane was the injury producing conduct. The accident didn't occur because Defendant crossed into the left hand turning lane and hit the Plaintiff. The injury producing conduct was proceeding through the crosswalk, while the light was green and while Plaintiff was present in the crosswalk. Therefore, since the injury causing conduct is not privileged, the ordinary negligence standard governs this claim. Under [*3]this standard, genuine issues of fact exist as to Defendants' negligence. Accordingly, Defendants Presbyterian Hospital and Weichbrod's summary judgment motion to dismissed is denied.
In support of its motion to dismiss, the City Defendants argue that (1) the City is immune from suit because it assume no special duty to the Plaintiff and (2) if there is a duty, it did not trigger because Plaintiff is unable to show reliance.
As a general rule, a municipality owes no special duty to provide police protection to a particular individual unless that individual has established a special relationship with the municipality (Cuffy v City of New York, 69 NY2d 255). A special relationship can be formed when the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty (see Florence v Goldberg, 44 NY2d 189 [1975]). In Florence, supra, the Court found that a
special duty arises to children for whom the City has assumed the responsibility of providing crossing guards.
Here, the Court finds that the City, by providing the school crossing officer at the intersection during school hours, assumed a special duty to provide due care to protect the students. Therefore, the Court finds that the City assumed a special duty to the Plaintiff. Accordingly, the City has failed to meet their prima facie burden of showing entitlement to summary judgment relief.
However, the City contends that even if the special duty exception exists, Plaintiff cannot show justifiable reliance on the school crossing guard because the Infant/Plaintiff does not remember the accident.
However, the Court finds that once it has been established that a special duty exist, for summary judgment purposes, the burden is on the City to show that there is no issue of fact that the duty did not trigger. Once the City can establish no reliance, the burden will shift to Plaintiff to show reliance (see Rosado v Alhati, 83 AD3d 593). In Rosado, the Court granted summary judgment to the City where an assigned crossing guard was absent from the post after the City established that the parent knew that no cross guard was present. The Court found that the burden shifted to the plaintiff to raise an issue of fact of justifiable reliance (see Rosado v Alhati, supra).
Here, the City has failed to establish that the Plaintiff did not rely on the crossing guard's presence. The Infant/Plaintiff, a seventh grader, suffered a blow to her head, resulting in her having no memory of the incident. However, her memory of the incident is not dispositive of the issue, since reliance can be determined in other ways (see Branch v Stehr, 93AD2d 849, 850[1983].
Accordingly, the Court finds that the City has failed to established its prima facie entitlement to summary judgment as a matter of law. Therefore, the City's motion to dismiss is hereby denied.
[*4]
This constitutes the decision and order of the Court.
DATED: June 1, 2012_________________________________
RICHARD VELASQUEZ , J.S.C,
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