Opinion
2011-12-20
Mary ASANTEWAA, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant–Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for appellant. Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Marta Ross of counsel), for appellant. Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, SWEENY, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 4, 2010, which granted plaintiff's motion for partial summary judgment on the issue of liability and denied defendant's cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny plaintiff's motion and to grant defendant's cross motion to the extent of dismissing that portion of plaintiff's claim premised upon defendant's failure to ensure that she wore a seat belt, and otherwise affirmed, without costs.
Plaintiff was injured when, while a passenger in defendant's ambulance, the ambulance suddenly stopped, causing plaintiff, who was seated on a bench in the rear compartment of the ambulance and not wearing a seatbelt, to fall off the bench. It is well settled that the operator of an ambulance owes its passengers a duty of reasonable care ( see Bethel v. New York City Tr. Auth., 92 N.Y.2d 348, 356, 681 N.Y.S.2d 201, 703 N.E.2d 1214 [1998] ). However, that duty does not require that the operator of the vehicle ensure that an adult passenger has fastened his or her seatbelt ( see e.g. Stewart v. Taylor, 193 A.D.2d 1078, 598 N.Y.S.2d 627 [1993] ). Moreover, the New York City Fire Department's internal rules requiring that members ensure that passengers in emergency vehicles wear seatbelts imposes a greater standard of care upon defendant than that imposed by law, and thus, a violation of said rules cannot serve as basis for plaintiff to impose liability upon defendant ( see Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577, 807 N.Y.S.2d 588, 841 N.E.2d 747 [2005]; Rahimi v. Manhattan & Bronx Surface Tr. Operating Auth., 43 A.D.3d 802, 804, 843 N.Y.S.2d 557 [2007] ).
Contrary to plaintiff's contention that even if her allegations that defendant was liable based on its failure to ensure that plaintiff was wearing a seatbelt are found to be not viable she is still entitled to summary judgment based on her allegations that the ambulance was operated in a negligent manner, the record presents triable issues of fact in this regard.