Opinion
2012-12-4
ESTATE OF Gail RADVIN by Faith Radvin and Robin Martucci, co-executors of the Estate, and Faith Radvin and Robin Martucci, Individually, Plaintiff, v. The CITY OF NEW YORK, and New York City Sanitation Department, and New York City Fire Department, Defendant.
Warren S. Hecht, Esq., Forest Hills, for Plaintiff. Michael A. Cardozo, Corporation Counsel of the City of New York, by Howard Eison, Assistant Corporation Counsel, New York City Law Department, New York, for Defendant.
Warren S. Hecht, Esq., Forest Hills, for Plaintiff. Michael A. Cardozo, Corporation Counsel of the City of New York, by Howard Eison, Assistant Corporation Counsel, New York City Law Department, New York, for Defendant.
PHYLLIS ORLIKOFF FLUG, J.
Defendants, the City of New York, the New York City Sanitation Department, and the New York City Fire Department, collectively move to dismiss plaintiff's Complaint.
This is an action to recover damages for the alleged wrongful death of Gail Radvin on December 27, 2010 which plaintiffs attribute to the delay in the arrival of an ambulance due to defendants' alleged negligence in snow removal during and after the snow storm which occurred on that date.
The criterion in considering a motion to dismiss under CPLR 3211(a)(7) “is whether the proponent of the pleading has a cause of action, not whether he has stated one” ( Allen v. City of New York, 49 A.D.3d 1126, 1127, 855 N.Y.S.2d 279 [3d Dept.2008] (citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977];see Griffin v. Anslow, 17 A.D.3d 889, 891, 793 N.Y.S.2d 615 [3d Dept.2005] )). Affidavits and other evidentiary material may be considered to “establish conclusively that [the] plaintiff has no cause of action” ( Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976];see Wilhelmina Models, Inc. V. Fleisher, 19 A.D.3d 267, 268–69, 797 N.Y.S.2d 83 [1st Dept.2005] ).
It is well settled that a municipality has a duty to keeps its streets in a reasonably safe condition for travel and that this duty includes inter alia the removal of dangerous accumulations of snow and ice on the roadways ( See Williams v. City of New York, 214 N.Y. 259, 108 N.E. 448 [1915];see also Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291 [2d Dept.2010];Gonzalez v. City of New York, 148 A.D.2d 668, 670, 539 N.Y.S.2d 418 [2d Dept.1989] ). Contrary to defendants' contentions, this duty is proprietary in nature and, as such, governmental immunity does not apply ( See McGowan v. State of New York, 41 A.D.3d 670, 671, 839 N.Y.S.2d 145 [2d Dept.2007] ).
However, this duty is specifically owed to the traveling public making use of roadways and should not be extended to cover those for whom the duty was not conceived ( See Lopes v. Rostad, 45 N.Y.2d 617, 624–25, 412 N.Y.S.2d 127, 384 N.E.2d 673 [1978];see also Sweet v. Town of Wirt, 23 A.D.3d 1097, 1098, 803 N.Y.S.2d 867 [4th Dept.2005] ). As plaintiffs' claims do not stem from their direct use of the road, defendants did not owe any duty to them and they cannot state a cause of action to recover for defendants' alleged breach of their duty to keep the streets reasonably safe.
Plaintiffs also allege that defendants' breached their duty to provide adequate emergency services. The provision of ambulance services is a governmental function ( See Laratro v. City of New York, 8 N.Y.3d 79, 82–83, 828 N.Y.S.2d 280, 861 N.E.2d 95 [2006];see also Applewhite v. Accuhealth, 90 A.D.3d 501, 502, 934 N.Y.S.2d 164 [1st Dept.2011] ).
In order to state a claim against the City for actions arising out of the City's performance of a governmental function, the complaint must plead the existence of a special relationship ( See Gotlin v. City of New York, 90 A.D.3d 605, 607, 936 N.Y.S.2d 208 [2d Dept.2011] ).
“A special relationship can be formed in three ways: (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” ( Pelaez v. Seide, 2 N.Y.3d 186, 199–200, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004] ) (internal citation omitted).
No issue has been raised, on this record, as to the applicability of the first and third bases for a special duty. The elements of a special relationship formed on the second basis, the voluntary assumption of a duty, are: “(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” ( Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ).
Plaintiffs' amended complaint alleges that (1) the City voluntarily assumed a duty to act by informing decedent's family members that they would send an ambulance to decedent's residence “as fast as they can,” (2) that the municipality was informed that the decedent was having difficulty breathing and, as such, knew that inaction could lead to harm, (3) there was direct contact between the City and the decedent's family through the multiple 911 calls and (4) that plaintiffs relied on the municipality's promise to send an ambulance.
The amended complaint adequately alleges all of the elements necessary to state a cause of action ( See Gotlin, supra, at 607, 936 N.Y.S.2d 208). Moreover, contrary to the City's contentions, this is not a new theory of liability as plaintiffs' notice of claim includes allegations regarding the City's alleged negligent provision of ambulance services.
Accordingly, the City's motion to dismiss is granted only to the extent that plaintiff's causes of action alleging negligent snow removal are dismissed, and is otherwise denied.