Summary
noting that "a question of fact exist[ed]" as to whether a special duty applied where, despite the urgency of decedent's actions and gestures, "first responders’ affirmative actions" may have led to delay in transporting the decedent to the hospital
Summary of this case from Maldonado v. Town of GreenburghOpinion
62551/2016
08-16-2018
Christine LYNCH, as Administratrix of the Estate of John K. Lynch, deceased, and Christine Lynch, individually, Plaintiffs, v. The TOWN OF GREENBURGH and Greenburgh Police Department Emergency Medical Services, Defendants.
Joseph Wallace, Esq., Attorney for Plaintiffs, Via NYSCEF Vigorito Barker Porter & Patterson, LLP, Attorneys for Defendants Town of Greenburgh, and Greenburgh Police Department Emergency, Medical Services, Via NYSCEF
Joseph Wallace, Esq., Attorney for Plaintiffs, Via NYSCEF
Vigorito Barker Porter & Patterson, LLP, Attorneys for Defendants Town of Greenburgh, and Greenburgh Police Department Emergency, Medical Services, Via NYSCEF
Lawrence H. Ecker, J.
The court determines as follows:
John K. Lynch ("the decedent"), his wife Christine ("plaintiff") and their four children lived on Vintage Court in White Plains, NY On the evening of September 6, 2014, the decedent and plaintiff were at home giving the family dog a bath. At some point, the decedent, who suffered from allergies and asthma, began to have difficulty breathing from the onset of an asthma attack. Plaintiff called 911 at approximately 22:07. According to plaintiff, she informed the dispatcher that decedent, while washing the dog, had an allergic reaction that caused an asthma attack. The dispatcher responded that an ambulance was nearby. Plaintiff referred to the decedent's "Primatene Mist" and the dispatcher advised that she not give the decedent any medication that was not prescribed. Plaintiff alleges that she followed that advice, and because the Primatene Mist was not prescribed, she did not offer it to the decedent ("the 911 Dispatcher"). Eventually, he did in fact use the medication [NYSCEF No. 37 p.202].
Two members of the Greenburgh Police Department Emergency Medical Services ("Greenburgh EMS") responded to the call: paramedic Detective Lawrence Marello and Emergency Medical Technician ("EMT") police officer Daniel Pisicano. Greenburgh EMS is a New York State Department of Health Certified Advanced Life Support First Response Service. ("ALS"). The ambulance with the responders arrived at the home at approximately 22:09. Plaintiff confirmed that the ambulance arrived and terminated the 911 call.
The decedent met the first responders. Plaintiff testified that Marello "assumed control" of the situation, and she informed Marello that the decedent was having an allergic reaction to the dog. Marello confirmed at his deposition that plaintiff told him about the allergy and the dog. Pisicano also testified that he was aware that a dog was discussed. Marcello asked questions and directed plaintiff to get a chair for the decedent to sit down.
The responders directed the decedent to sit down, but he said "no" and gestured to the ambulance. Instead of taking him to the ambulance, Marcello advised him to use the Nebulizer, which contained Albuterol and Atrovent, that was being retrieved from the ambulance.
Plaintiff observed vehicles from Fairview Fire Department arrived outside of her home. The Fairview Responders remained in their vehicles.
Once the Nebulizer was working, the decedent walked to the ambulance, but did not enter it. The first responders treated him with the Nebulizer for approximately thirty to sixty seconds, but the decedent continued to struggle to breathe and shaking his head in a "no" motion and gesturing. Marcello testified that the decedent was not able to speak full sentences. According to plaintiff, Marello grabbed a hold of the Nebulizer and insisted that the decedent continue to use it. Plaintiff alleges that in distress, the decedent tried to walk away, and Marcello restrained him, saying "no, no, no" and pushing the Nebulizer back on the decedent's face.
While defendants assert the decedent was combative and resistant to treatment, plaintiff alleges that the decedent was in distress because of difficulty breathing, and in his desperation was trying to get the responders to "hurry up and do something to treat him. He was personally communicating this to them in the only way he could, by gestures" [NYSCEF No. 48].
According to plaintiff, as the decedent's condition did not improve, Marello said "okay lets go" and the crew from the Fairview Fire Department came over. They assisted Pisicano in taking the gurney from the ambulance and setting it up. The decedent gestured that he did not wish to be strapped down, but Marcello told him it was necessary. Marcello, according to plaintiff, stated "If you don't sit down, you are going to die" and the decedent sat on the gurney. He was strapped in and brought to the ambulance. Marcello testified that he started an IV, but the decedent's movements resulted in it being pulled out. According to the Fairview Fire Department report, the decedent was loaded into the ambulance at 22:20.
Plaintiff alleges that Marcello directed her to get shoes so she could ride in the ambulance. When she returned outside, they were closing the ambulance doors and Marcello suggested that she drive to the hospital so that she would have a car to bring her husband home later from the hospital. The ambulance left and plaintiff followed in her own vehicle.
Almost immediately after pulling away from the house, the decedent suffered cardiac arrest. He arrived at the ER without a pulse and no cardiac electrical activity and CPR was performed.
At his EBT, Marcello confirmed that he was ALS trained. He repeatedly testified that he was informed that the decedent was suffering an asthma attack and that "he did not understand it to be an allergic reaction" even after being told "the dog washing provoked the asthma" [NYSCEF No. 63 pp. 68, 82, 83, 94]. The only treatment he rendered to the decedent before he suffered cardiac arrest, Marcello testified, was to attempt to get the decedent to use the Nebulizer and to attach an IV before entering the ambulance. In addition, he testified that he did not measure oxygen saturation or exhaled carbon dioxide. The responders did not attach an ECG or other oxygenation mask nor did they intubated the patient. The sole equipment used in the ambulance was the Bag Valve Mask [NYSCEF No. 63, pp. 131,135,136].
A monitor was attached to the patient after he stopped breathing [NYSECEF No. 63 pp. 137-140]. The paramedics then performed manual chest compressions while bagging the patient with a Bag Valve Mask. According to Marcello, there was no Automatic External Defibrillator or biphasic defibrillator in the ambulance. There was a manual defibrillator in the ambulance that the responders did not use. Marcello did not administer any medications that are used to control an allergic reaction [NYSCEF No. 63, pp. 104-108, 146-150]
According to the ER records, the patient arrived without a pulse, not breathing and unresponsive with a compromised airway, dusky and cyantice skin color and cold to the touch. He was in respiratory and cardiac arrest. He was placed on an ER monitor, intubated and a defibrillator was used. The physician administered epinephrin, Slu-Medrol, Benadryl, Versed and other medications while CPR was being performed for 8-10 minutes. While a pulse and regular heart rate and rhythm were eventually restored, it was determined that the decedent had suffered permanent brain injury as the result of a lack of oxygen to the brain and he was "brain dead." Life support was withdrawn and he died on September 13, 2014.
Plaintiff commenced this medical malpractice and wrongful death action on June 9, 2016. In essence, the complaint alleged that the Town owned and operated the ambulance, the first responders negligently rendered medical care, attention and pre-hospital treatment to the decedent during his transport to the emergency room, causing his death. Defendants served an answer on or about December 9, 2016. In the answer, defendants denied the allegations and asserted twelve affirmative defenses, including culpable conduct, failure to state a cause of action, statute of limitations, CPLR Article 16, contributory negligence, failure to state a claim upon which relief can be granted, General Obligations Law § 15-108 set offs, failure to mitigate damages, CPLR § 4545(a), collateral source, failure to name an indispensable party, and failure to comply with conditions precedent pursuant to the General Municipal Law.
Plaintiff filed an amended complaint on March 22, 2017. Plaintiff newly alleged that defendants "assumed an affirmative duty toward plaintiff and/or [the decedent], to render non-negligent medical care, attention and pre-hospital treatment, in accordance with good and accepted medical customs, practice and standards ... [and] in accordance with applicable State-approved protocols" [NYSCEF No.15]. Defendants filed an answer to the amended complaint asserting a thirteenth affirmative defense based on governmental function immunity.
The Amended Answer was not independently uploaded to NYSCEF, but appears as an exhibit in NYSCEF No. 52. Plaintiff does not deny timely service of the pleading.
The Note of Issue was filed on March 28, 2018. On May 4, 2018, defendants filed this motion for summary judgment seeking an order dismissing the complaint. Plaintiff opposed the motion on May 24, 2018, and defendants replied to that opposition on June 4, 2018. In the opposition papers, plaintiff requested that the court, upon a search of the record, grant plaintiff summary judgment [NYSCEF No. 47 pp. 56-57].
The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case ( Winegrad v. New York University Medical Center , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Put another way, in order to obtain summary judgment, there must be no triable issue of fact presented ... even the color of a triable issue of fact forecloses the remedy ( In re Cuttitto Family Trust , 10 A.D.3d 656, 781 N.Y.S.2d 696 [2d Dept. 2004], quoting , L.N.L. Constr. v. MTF Indus ., 190 A.D.2d 714, 715, 593 N.Y.S.2d 536 [2d Dept. 1993] ). If a party makes a prima facie showing of its entitlement to summary judgment, the opposing party bears the burden of establishing the existence of a triable issue of fact ( Zuckerman v. City of New York, supra ; Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). On a motion for summary judgment, the court's function is to determine if a factual issue exists, and "the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine, and [a]n conflict in the testimony or evidence presented merely raise(s) an issue of fact." [internal citations omitted] ( Brown v. Kass , 91 A.D.3d 894, 938 N.Y.S.2d 155 [2d Dept. 2012] ).
In addition, when considering a motion for summary judgment in a medical malpractice action, in order to establish the liability of a medical provider for medical malpractice, a plaintiff must prove that the provider deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries ( Bowe v. Brooklyn United Methodist Church Home , 150 A.D.3d 1067, 56 N.Y.S.3d 180 [2d Dept. 2017], quoting , Stukas v. Streiter , 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 [2d Dept. 2011] ). "Thus, on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ... Where such a showing is made, the burden shifts to the plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact" ( Duvidovich v. George , 122 A.D.3d 666, 995 N.Y.S.2d 616 [2d Dept. 2014] ; see Alvarez v. Prospect Hosp., supra ; Bowe v. Brooklyn United Methodist Church Home, supra ).
Furthermore, summary judgment is not appropriate in a proceeding involving medical care where the parties adduce conflicting medical expert opinions ( Nisanov v. Khulpateea , 137 A.D.3d 1091, 27 N.Y.S.3d 663 [2d Dept. 2016], quoting , Feinberg v. Feit , 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 [2d Dept. 2005] ; Guctas v. Pessolano, 132 A.D.3d 632, 633, 17 N.Y.S.3d 749 [2d Dept. 2015] ). Conflicting expert opinions raise credibility issues that are to be resolved by the fact finder ( Omane v. Sambaziotis , 150 A.D.3d 1126, 55 N.Y.S.3d 345 [2d Dept. 2017] ; Elmes v. Yelon , 140 A.D.3d 1009, 34 N.Y.S.3d 470 [2d Dept. 2016] ). It is well settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues (see Aguilar v. City of New York , 162 A.D.3d 601, 79 N.Y.S.3d 159 [1st Dept. 2018] ; Andre v. Pomeroy , 35 N.Y.2d 361, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974] ; Martin v. Briggs, 235 A.D.2d 192, 663 N.Y.S.2d 184 [1st Dept. 1997] ).
Here, defendants move for summary judgment on two grounds. First, defendants argue that the first responders and the 911 dispatcher were acting in a governmental capacity and, therefore, plaintiff must demonstrate that she and the decedent were owed a "special duty" beyond that owed to the public at large, which plaintiff cannot do. Second, defendants assert that the first responders and the dispatcher are entitled to governmental function immunity which shields municipalities from liability when the allegedly negligent act or omission involved the exercise of discretionary authority, because the evidence shows that all of defendants' actions were discretionary. As noted in Valdez v. City of New York , 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011), there has been lingering confusion concerning the relationship between the special duty rule (establishing a tort duty of care) and the governmental function immunity defense (affording a full defense for discretionary acts, even when all elements of the negligence claim have been established).
Special Duty.
When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, as took place here, "it performs a governmental function and cannot be held liable unless it owed a 'special duty' to the injured party" ( Earle v. Village of Lindenhurst, 130 A.D.3d 973, 14 N.Y.S.3d 469 [2d Dept. 2015] ; Applewhite v. Accuhealth, Inc. , 21 N.Y.3d 420, 424, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; Torres v. City of New York , 116 A.D.3d 947, 983 N.Y.S.2d 855 [2d Dept. 2014] ). Such a "special duty" can arise, as relevant here, where "the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally," or, in other words, where the municipality "voluntarily assumed a 'special relationship' with the plaintiffs" ( Holloway v. City of New York, 141 A.D.3d 688, 36 N.Y.S.3d 190 [2d Dept. 2016] ; Earle v. Village of Lindehurst , supra ).
In Applewhite v. Accuhealth, supra , the Court of Appeals held that EMTs serve a classic governmental, rather than proprietary function. The court went on to hold that this conclusion did not necessarily immunize the government entity from liability because a plaintiff might yet establish that a "special duty" was owed to him. A "special duty" is "a duty to exercise reasonable care toward the plaintiff," and is "born of a special relationship between the plaintiff and the governmental entity" ( Estate of Radvin v. City of New York, 119 A.D.3d 730, 991 N.Y.S.2d 609 [2d Dept. 2014] ).
The three ways to prove such a "special duty" are: "(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" ( Applewhite v. Accuhealth, Inc., supra ). In the matter before this court, of the three ways to prove the existence of a "special duty," as was the case in Applewhite v. Accuhealth , only the second way is at issue here: whether the defendants voluntarily assumed a "special relationship" with plaintiffs beyond the duty that is owed to the public generally (see Kupferstein v. City of New York , 101 A.D.3d 952, 957 N.Y.S.2d 200 [2d Dept. 2012] ).
To the extent that plaintiff argues that the first element applies here because a special duty arose from defendants' alleged violation of regulations governing ambulances pursuant to 10 NYCRR 800.3, the argument lacks merit as regulations are not statutes and, in any event, the regulations do not create a private right of action as a matter of law (see Rennix v. Jackson , 152 A.D.3d 551, 59 N.Y.S.3d 57 [2d Dept. 2017] ). As such, only criteria two is at issue here.
The response to that question requires the presence of four elements. In order to show an assumed "special duty," a plaintiff must show: "(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" ( Earle v. Village of Lindenhurst, supra ; Applewhite v. Accuhealth, Inc., supra; Kupferstein v. City of New York , supra ; Coleson v. City of New York , 24 N.Y.3d 476, 999 N.Y.S.2d 810, 24 N.E.3d 1074 [2014] ; Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987]. Whether a "special duty" exists is generally a question for the jury ( Coleson v. City of New York, supra ; Santaiti v. Town of Ramapo , 162 A.D.3d 921, 80 N.Y.S.3d 288 [2d Dept. 2018] ).
To the extent that plaintiff argues that the fact that the paramedic herein was trained as an ALS instead of an EMT somehow alters this or any other legal standard discussed herein, that contention is unsupported by any precedent and is rejected as devoid of merit. (See generally , Ilyayeve v. City of New York , 2016 N.Y. Slip. Op. 31635(U), 2016 WL 4490623 [Sup. Ct., New York County 2016] ).
Applying these factors here, the court concludes that a question of fact exists as to whether a "special duty" was created between Marcello and Pisacano and plaintiff and the decedent. There is no question that element two and three are satisfied. As for criteria one and four, based on the testimony and medical records submitted, a jury could conclude, among other things, that the decedent wanted to leave for the hospital immediately, demonstrated by his actions and gestures and that the first responders' affirmative actions prevented that from happening. In addition, the jury could rationally find that the decedent and his wife deferred to the first responders' actions, and justifiably relied on those actions when electing to remain under their care. Hence, the record here at least arguably contains factual issues concerning whether the first responders voluntarily assumed a duty to the decedent or plaintiff, thereby creating a "special duty" (see Applewhite v. Accuhealth, Inc., supra ; Holloway v. City of New York, supra ; see Rosenblatt v. City of New York , 55 Misc. 3d 1212[A], 2011 WL 13174262 [Sup. Ct., Queens County 2017] ; Cuffy v. City of New York , supra ).
As for the interaction between plaintiff and the 911 dispatcher, the court finds as a matter of law that no "special duty" was created between those individuals as there is no evidence submitted that satisfies the four criteria need to prove a "special duty". In any event, the decedent utilized Primatene Mist and therefore did not rely on the 911 dispatcher's advice.
The court also finds that, based on plaintiff's own admissions, there was no direct contract between plaintiff or the decedent and the Medical Director of Greenburgh EMS (Erik A. Larson M.D.) or EMS Director Jared Rosenberg. As such, no special duty between those governmental personnel and plaintiff was created as a matter of law (see , Holloway v. City of New York, supra ). In any event, the claims based on the actions of the 911 dispatcher, Larson and Rosenberg are barred the governmental function immunity.
Governmental function immunity.
The governmental function immunity defense applies where a plaintiff has established all of the elements of a negligence cause of action, including a duty running to the plaintiff (Rennix v. Jackson , supra ; see Valdez v. City of New York , supra ). "Under the doctrine of governmental function immunity, 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" ( Dixon v. City of New York , 120 A.D.3d 751, 991 N.Y.S.2d 463 [2d Dept. 2014] ; Valdez v. City of New York, supra ; see Applewhite v. Accuhealth, Inc., supra ).
"A plaintiff generally must first establish the existence of a special duty therefore before it even becomes necessary for the court to address whether the governmental function immunity defense applies" ( DiMeo v. Rotterdam Emergency Med. Servs. Inc. , 110 A.D.3d 1423, 974 N.Y.S.2d 178 [3d Dept. 2013] ; Metz v. State of New York , 20 N.Y.3d 175, 958 N.Y.S.2d 314, 982 N.E.2d 76 [2012] ; Valdez v. City of New York, supra ), but "the special relationship issue is irrelevant where the government action in question is discretionary" ( DiMeo v. Rotterdam Emergency Med. Servs. Inc., supra ; see McLean v. City of New York , 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ). Even where a "special duty" is shown to exist between the plaintiff and the municipal defendant, therefore, "the common-law doctrine of governmental immunity" will nevertheless shield the public entity "from liability for discretionary actions taken during the performance of governmental functions" ( Valdez v. City of New York, supra ). "In other words, even if a plaintiff establishes all elements of a negligence claim, a state or municipal defendant engaging in a governmental function can avoid liability if it timely raises the defense and proves that the alleged negligent act or omission involved the exercise of discretionary authority"( Id. ) .
While this result may be harsh, "this limitation on liability reflects separation of powers principles and is intended to ensure that public servants are free to exercise their decision-making authority without interference from the courts. It further reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury" (Valdez v. City of New York , supra ,quoting , Mon v. City of New York , 78 N.Y.2d 309, 574 N.Y.S.2d 529, 579 N.E.2d 689 [1991] ).
Accordingly, 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" ( DiMeo v. Rotterdam Emergency Med. Servs., Inc., supra ; see Lauer v. City of New York , 95 N.Y.2d 95, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). Discretionary authority involves "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" ( DiMeo v. Rotterdam Emergency Med. Servs., Inc., supra ; Haddock v. City of New York , 75 N.Y.2d 478, 484, 554 N.Y.S.2d 439, 553 N.E.2d 987 [1990] ; Murchison v. State of New York , 97 A.D.3d 1014, 949 N.Y.S.2d 789 [3d Dept. 2012] ).
If a functional analysis of the actor's position shows that it is sufficiently discretionary in nature to warrant immunity, it must then be determined whether the conduct giving rise to the claim is related to an exercise of that discretion. In order to prevail on a governmental function immunity defense, therefore, a municipality must do much more than merely allege that its employee was engaged in activities involving the exercise of discretion. Even where the functions and duties of the municipal actor's particular position entail the exercise of discretion and judgment, the governmental function immunity defense is only available when "the conduct giving rise to the claim is related to an exercise of that discretion" ( Trimble v. City of Albany , 144 A.D.3d 1484, 42 N.Y.S.3d 432 [3d Dept. 2016] ; Valdez v. City of New York, supra ). Obviously, governmental immunity does not therefore attach to every action of an official having discretionary duties but only to those involving an exercise of that discretion ( Trimble v. City of Albany , supra ; Mon v. City of New York , 78 N.Y.2d 309, 574 N.Y.S.2d 529, 579 N.E.2d 689 [1991] ). As such, the defense precludes liability for a "mere error of judgment," but the immunity is not available unless the municipality establishes that "the action taken actually resulted from discretionary decision-making—i.e., the exercise of reasoned judgment which could typically produce different acceptable results" ( Trimble v. City of Albany , supra ; Valdez v. City of New York, supra ; DiMeo v. Rotterdam Emergency Med. Servs., Inc., supra ). In determining this issue, the court must focus on "the conduct on which liability is predicated" ( Trimble v. City of Albany , supra ; Valdez v. City of New York, supra ).
Applying these principles here, it is clear that defendants fail to establish that the doctrine of governmental function immunity bars the claims that are based on Marcello's and Pisacano's actions as a matter of law . Despite acknowledging that "this action sounds in medical malpractice" [NYSCEF No. 44 p. 5], defendants do not submit a physician's or EMT expert affirmation specifically addressing the precise medical treatment rendered to the decedent. Instead, defendants rely upon the affidavit of an EMT Supervisor who offers generalized, conclusory statements to the effect that EMS protocols permit EMTs to exercise discretion, without ever addressing any of the specifics of defendants' actions in this case. In fact, the specific protocols are not discussed or explained, the actual medical actions taken by the first responders are not delineated or compared to protocols, specific examples of acts of discretion by the first responders are not provided, and there is no express support for the medical care that was given. As such, the expert's affidavit is conclusory, speculative and offers no relevant competent evidence ( Rodriguez v. Waldman , 66 A.D.3d 581, 887 N.Y.S.2d 577 [1st Dept. 2009] ; Stinson v. Lueders , 159 A.D.3d 652, 73 N.Y.S.3d 193 [1st Dept. 2018] ; Kerrins v. South Nassau Communities Hosp. , 148 A.D.3d 795, 48 N.Y.S.3d 734 [2d Dept. 2017] ).
In contrast, the court finds that doctrine of governmental function immunity bars any claims based on the actions of the 911 dispatcher, Larson and Rosenberg.
Reviewing the limited remaining record before the court, including the medical records, protocols and testimony submitted, the court finds that defendants fail to set forth a prima facie entitlement to summary judgment on the grounds of governmental function immunity as a matter of law. As stated previously, governmental function immunity is not available unless the municipality establishes that the action taken actually resulted from discretionary decision-making—i.e., the exercise of reasoned judgment which could typically produce different acceptable results ( Valdez v. City of New York, supra ). Focusing as the court must on the "conduct on which liability is predicated," it cannot be concluded upon the facts before the court that defendants' conduct involved the exercise of "reasoned judgment which could typically produce different acceptable results" ( Trimble v. City of Albany, supra ; Valdez v. City of New York, supra ). Specifically, Marcello testified that he did not contact the doctor on call and treated the decedent only for asthma. There is, however, according to the New York Protocols submitted with the motion, a separate "Allergic Reaction and Anaphylaxis" protocol [NYSCEF No. 36]. Marcello testified, however, that he never considered treating the decedent for anything other than asthma, thereby implying that he never considered following the protocol for an allergic reaction. In fact, despite being told that the decedent was having an allergic reaction to the dog, Marcello acknowledged that he did not consider whether the attack was an allergic attack, verses another form of asthma incident. He also specifically stated that he never considered giving the decedent any medication to address an allergic reaction. Moreover, the EMT was acting under his supervision. Hence, there are issues concerning whether the first responders followed the correct protocol or treated the correct condition.
A review of the Acute Asthma Protocol provides, however, for the use of an EpiPen and other medications, which Marcello conceded he did not administer to the decedent.
Furthermore, based on the testimony presented, the jury could conclude that the first responders treated the decedent for asthma, assuming they followed the asthma protocol, without ever considering other diagnosis, protocols or other medically necessary acceptable alternative treatments or techniques, and thereby, in fact, exercised no discretion at all (see, United Services Auto. Association v. Wiley , 60 A.D.3d 1042, 876 N.Y.S.2d 444 [2d Dept. 2009] ). Based on the unique, limited record before the court, therefore, the court finds that questions exist whether the first responders exercised discretion at all in their dealings with the decedent and plaintiff and, consequently, the application of the governmental function immunity cannot be resolved as a matter of law (see generally , Lacqua v. Silich , 141 A.D.3d 690, 35 N.Y.S.3d 488 [2d Dept. 2016] ). Having failed to set forth a prima facie showing of entitlement to summary judgment dismissing the complaint, defendants' motion is therefore denied to the extent set forth herein without the need to consider plaintiff's opposition (see, Winegrad v. New York University Medical Center, supra ; Perez v. Johnson, 72 A.D.3d 777, 898 N.Y.S.2d 655 [2d Dept. 2010] ). As stated previously, summary judgment is a drastic remedy and should not be granted when there is doubt as to the existence of a material triable issue of fact. Under the limited record presented here, therefore, defendants' motion for summary judgment dismissing the complaint is denied ( O'Sullivan v. Presbyterian Hospital Med. Ctr. , 217 A.D.2d 98, 634 N.Y.S.2d 101 [1st Dept. 1995] ; Aguilar v. City of New York, 162 A.D.3d 601, 79 N.Y.S.3d 159 [1st Dept. 2018] ). Moreover, to the extent that plaintiff demands, in the opposition papers, that the court search the record and grant summary judgment in plaintiff's favor and against defendants, the request is denied for the reasons set forth herein.
It must be noted that, while plaintiff's expert sets forth various deviations from good and acceptable medical practice, the affirmation is incompetent evidence. CPLR 2106 provides that:
"Affirmation of truth of statement
(a) The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit."
By its explicited language, therefore, CPLR 2106 requires that the expert physician seeking to submit an affirmation, instead of an affidavit, must be "authorized by law to practice in the state." Affirmations from physicians, like plaintiff's expert, who are not authorized by law to practice in the State of New York, lack probative value (Worthy v. Good Samaritan Hosp. Med. Cetr. , 50 A.D.3d 1023, 857 N.Y.S.2d 178 [2d Dept. 2008] ; Tomeo v. Beccia , 127 A.D.3d 1071, 7 N.Y.S.3d 472 [2d Dept. 2015] ; Sul-Lowe v. Hunter , 148 A.D.3d 1326, 48 N.Y.S.3d 844 [3d Dept. 2017] ; CPLR 2106 ).
The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by movant was not addressed by the court, it is hereby denied. Accordingly, it is hereby
ORDERED that the motion of defendants THE TOWN OF GREENBURGH and GREENBURGH POLICE DEPARTMENT, made pursuant to CPLR 3212, for an order granting defendants summary judgment dismissing the complaint as against CHRISTINE LYNCH, as Administratrix of the estate of JOHN K. LYNCH, deceased, and CHRISTINE LYNCH, individually, is denied; and it is further
ORDERED that the demand by plaintiff CHRISTINE LYNCH, as Administratrix of the estate of JOHN K. LYNCH, deceased, and CHRISTINE LYNCH, individually, that the court, upon a search the record, issue an order granting plaintiffs summary judgment as against defendants THE TOWN OF GREENBURGH and GREENBURGH POLICE DEPARTMENT, is denied; and it is further
ORDERED that the parties shall appear at the Settlement Conference Part of the Court, Room 1600 on Tuesday, October 9, 2018, at 9:30 a.m.
The foregoing constitutes the decision and order of the court.