Summary
granting summary judgment to defendant volunteer EMTs where N.Y. Public Health Law § 3013 required a showing of gross negligence and "plaintiffs failed to plead gross negligence, and never sought leave to amend the complaint"
Summary of this case from Hollman v. County of SuffolkOpinion
Argued September 18, 2000
October 10, 2000.
In related actions, inter alia, to recover damages for wrongful death, etc., the plaintiffs appeal from so much of a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered August 11, 1999, as, upon the granting of the motion of the defendants Greenport Fire Department, Village of Greenport, and County of Suffolk for summary judgment dismissing the complaint insofar as asserted against them in Action No. 1, is in favor of the defendants Greenport Fire Department and Village of Greenport and against them, dismissing the complaint in that action insofar as asserted against those defendants.
Katz Margolis (DiJoseph, Portegello Schuster, New York, N Y [Arnold E. DiJoseph III] of counsel), for appellants.
Wortman, Fumuso, Kelly, DeVerna Snyder, LLP, Hauppauge, N Y (Scott G. Christesen of counsel), for respondents.
Before: LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contentions, they failed to demonstrate the existence of any genuine issue of fact to rebut the respondents' prima facie showing of entitlement to judgment as a matter of law. Pursuant to Public Health Law § 3013(1), the respondents could be held liable only if their emergency medical technicians were grossly negligent in rendering emergency medical assistance to the plaintiffs' decedent (see, Rider v. Gaslight Tavern Corp., 125 A.D.2d 144; Woody v. Astoria Gen. Hosp., 264 A.D.2d 318). The plaintiffs failed to come forward with any persuasive evidence to support the claim of gross negligence (see, Amsler v. Verrilli, 119 A.D.2d 786). Moreover, the plaintiffs failed to plead gross negligence, and never sought leave to amend the complaint (see, Ciriello v. Virgues, 156 A.D.2d 417; Lotito v. Lund, 129 A.D.2d 776). The plaintiffs' remaining contentions are without merit.