Opinion
Index No.: 510166/2014
06-04-2020
MONICA GONZALEZ, Individually, and as Administrator of the Estate of FRANKIE RAMOS, Plaintiff(s), v. CITY OF NEW YORK and NEW YORK CITY FIRE DEPARTMENT, Defendant(s).
NYSCEF DOC. NO. 130
DECISION/ORDER
Hon. Bernard J. Graham Recitation, as required by CPLR 2219(a) , of the papers considered in the review of this Motion:
| Papers Numbered | |
|---|---|
| Plaintiff's Motion for Summary Judgment and Affirmation in Support | 1-2 |
| Defendants' Affirmation in Opposition | 3 |
| Plaintiff's Reply Affirmation | 4 |
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
Plaintiff Monica Gonzalez ("Ms. Gonzalez") submits the instant motion pursuant to §5015 and §2221 of the CPLR to vacate this Court's default order, dated November 29, 2018, granting summary judgment to the defendants the City of New York and the City of New York s/h/a the New York City Fire Department ("the City of New York") on the grounds that the plaintiff had a reasonable excuse for the default and the plaintiff has a meritorious cause of action for the wrongful death of Frankie Ramos ("the decedent") arising out of the defendants' negligence in failing to timely and properly provide emergency medical services to the decedent on September 15, 2013.
Defendants the City of New York, by its attorneys, oppose the motion to vacate, asserting that the plaintiff's excuse for default is not reasonable, and the plaintiff has not demonstrated she has a meritorious cause of action because the plaintiff has failed to establish the New York City Fire Department ("FDNY") paramedics owed the decedent a "special duty". Argument was heardin Part 36 of this Court on March 12, 2020 before the undersigned.
BACKGROUND
This action was commenced by the filing of a summons and complaint on October 30, 2014. On November 20, 2014, issue was joined by the service of answers, and a note of issue was filed on April 30, 2018 upon the completion of discovery. The defendants filed a motion for summary judgment on August 27, 2018, with an original return date of September 27, 2018. The parties stipulated to adjourn the motion to November 30, 2018. Subsequently, the Court administratively adjourned the motion to November 29, 2018, one day earlier. Email notifications were sent to all counsel. (See Plaintiff's Motion to Vacate, Exhibit B).
Despite being notified, plaintiff's counsel did not appear for the calendar call on November 29, 2018. After waiting for plaintiff's counsel to appear, the undersigned heard argument on the defendants' motion and granted the motion on default. Plaintiff's counsel was notified of the default order the same day, after calling the defendants to request a short adjournment to finalize their affirmation in opposition to the defendants' motion. A copy of the default order was served by mail on the plaintiff on November 30, 2018, and the defendants served and filed the default order with notice of entry on December 12, 2018. Plaintiff did not move to vacate the default order until November 20, 2019, which is 356 days after the default order was entered.
FACTS
The decedent, Mr. Ramos, was having difficulty breathing when his fiancé Ms. Gonzalez called for an ambulance at 10:57 am on September 13, 2013. He was a lifetime asthmatic and had been treated two days earlier at a rehabilitation facility for cannabis dependence. Mr. Ramos had been taking a nebulizer treatment when he approached Ms. Gonzalez, appearing fatigued, and told her to call 911 because the treatment wasn't working. (See Gonzalez 50h, p. 35). The 911 operator told Ms. Gonzalez they would send an ambulance, and at 11:00:17 am a rescue ambulance was dispatched, which was operated by two paramedics, Ferry Oscar ("PM Oscar") and Christian Jackson ("PM Jackson"). The ambulance contained advanced life support equipment, including equipment for intubation and low dose epinephrine. Ms. Gonzalez called 911 a second time at 11:02, at the request of Mr. Ramos, who expressed that he did not want to pass out and didn't understand what was taking them so long. (See Gonzalez EBT, p. 38). The 911 operator informed Ms. Gonzalez that the ambulance was on its way. Ms. Gonzalez testified that she discussed the option of driving to the hospital with Mr. Ramos, who told her that he preferred to wait for the ambulance out of concern that he may pass out. (See Gonzalez 50h, p. 61-62). When Mr. Ramos passed out at 11:07 am, Ms. Gonzalez' daughter Kiyleen made the third call to 911, during which the operator relayed CPR instructions to Ms. Gonzalez through Kiyleen.
Ms. Gonzalez and Mr. Ramos became engaged earlier in 2013, had resided together since 2011, and had two children together as of the date of the incident. At the time of Mr. Ramos' death, Ms. Gonzalez was pregnant with their third child.
Equipment and medications that basic life support technicians allegedly would not have.
The Advanced Life Support ("ALS") ambulance arrived at 11:10 am and reached Mr. Ramos at 11:11 am. The paramedics initially assessed that Mr. Ramos was not breathing, or apneic, his skin color was cyanotic, and his skin temperature was cold, despite Ms. Gonzalez' efforts in performing CPR. When oxygen was delivered to Mr. Ramos through a bag and CPR was initiated by the paramedics, Mr. Ramos' pulse was restored. A cold saline was administered intravenously at 11:20 am, and low-dose epinephrine was administered at 11:22 am. At 11:27 am the paramedics placed an endotracheal tube. At this point, Mr. Ramos' carbon dioxide levels were elevated, which indicates hyperventilation, and his oxygen saturation levels had decreased, which means there was not enough oxygen in his blood. The paramedics then transported Mr. Ramos to Brookdale Hospital, where he arrived at 11:41 am and expired from respiratory arrest several hours later.
Low-dose epinephrine is used to treat a cardiac arrest. According to PM Oscar, this medication can only be provided by paramedics and not basic life support technicians.
PARTIES' CONTENTIONS
Plaintiff's Motion to Vacate Default
Here, the Court is presented with the issue as to whether the plaintiff has presented a reasonable excuse for the default on November 29, 2018, in addition to whether the plaintiff has an underlying meritorious cause of action against the defendants for the medical malpractice of the City of New York paramedics.
In support of the motion to vacate the default order, plaintiff's counsel argues that the default was due to the administrative adjournment of the motion date from November 30, 2018 to November 29, 2018, of which plaintiff's counsel was unaware. Because of this law office failure, plaintiff argues the default was in no way willful or deliberate. Plaintiff supports this by asserting that plaintiff had every intention of opposing the motion after expeditiously completing discovery and attending court conferences, which is evidenced by plaintiff's November 29th call to the defendants asking for a short adjournment to oppose the defendants' motion. Plaintiff claims that it is an error to not vacate a default where a plaintiff failed to submit opposition papers to a motion for summary judgment, citing Weekes v Karayianakis, 304 AD2d 561, 562 [2d Dep't 2003], in which the Second Department held that the court improvidently exercised its discretion in rejecting the plaintiff's excuse of law office failure because it was "in the interest of justice, to excuse default resulting from law office failure."
In addition, plaintiff argues that the underlying cause of action, which alleges that the defendants failed to timely and properly intubate Mr. Ramos, is meritorious. The plaintiff asserts special duty does not need to be plead because the facts of this case involve advanced life support care negligently performed by paramedics - care which plaintiff asserts was proprietary (i.e. akin to the function of a medical professional) rather than discretionary. The plaintiff relies on the concurring opinions in Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013], which assert that, contrary to the majority's holding, the activity of the basic life support technicians should be considered "proprietary" in accordance with past rulings which did not grant immunity to publicly-owned hospitals in cases involving alleged medical malpractice. (See Applewhite, 21 NY3d at 433 (Smith, J. (concurring))). The plaintiff also relies heavily on the Applewhite majority's characterization of the basic life support technicians' services and leverages the fact that the basic life support technicians' "range of approved emergency services [are] limited by law," whereas paramedics are specially certified, authorized to perform invasive procedures and administer epinephrine, and have access to advanced diagnostic and medical treatment equipment akin to what is available in public and private hospital facilities. Applewhite, 21 NY3d at 429. The plaintiff argues that PM Oscar and PM Jackson administered epinephrine, which cannot be administered by basic life support technicians, and performed an endotracheal intubation, which is an invasive procedure that also cannot be performed by basic life support technicians and is ordinarily performed in a hospital setting by an emergency physician, anesthesiologist, or surgeon. Due to the nature of the care performed, plaintiff argues the advanced life support paramedics can be compared to proprietary medical professionals. Plaintiff also cites Pozarski v Brooklyn Bridge Park Corp., 64 Misc.3d 1217(A) [Sup. Ct. Kings Cty. 2019], in which the Court held that basic life support technicians cannot be compared to proprietary medical professionals.
The majority in Applewhite held that the entirety of the City's emergency medical services, including medical treatment, falls within the purview of governmental function. Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013].
Plaintiff further argues that even if special duty does need to be plead, the underlying cause of action is still meritorious because facts were established that prove a special duty did exist. Plaintiff argues that by choosing to perform an invasive procedure on Mr. Ramos, the paramedics voluntarily assumed an affirmative duty to act and the paramedics had an obligation to perform the procedure properly. The promise of action, plaintiff argues, came when the 911 dispatcher told Ms. Gonzalez the ambulance would be dispatched right away, then told her during the second call that the ambulance was "on its way." Plaintiffs claim that a statement that an ambulance is already on its way is specific enough and definitive enough for the plaintiff to rely on, as it clearly conveys the ambulance's arrival is imminent. The plaintiff also asserts that Ms. Gonzalez had direct contact because she was making the 911 call on behalf of Mr. Ramos, who directed her to make the call for him on two occasions. The plaintiff cites Lataro v City of New York, 8 NY3d 79, 84 [2006], which held that direct contact and reliance for the purposes of creating a special relationship can be established by someone other than the plaintiff where the person making the contact was acting on behalf of her immediate family. The plaintiff argues that because Ms. Gonzalez made the call at Mr. Ramos' direction, and she was Mr. Ramos' fiancé (and mother of two of his children), she should be considered an immediate family member. In addition, plaintiff states that Ms. Gonzalez had a discussion with the paramedics, during which she provided them with Mr. Ramos' information. Plaintiff further asserts that, due to 911 telling Ms. Gonzalez twice that an ambulance was on its way, detrimental reliance was established. Plaintiff argues that Ms. Gonzalez wanted to drive Mr. Ramos to the hospital, but Mr. Ramos was relying on the ambulance personnel to arrive in a timely manner.
In Lataro, a mother was calling on behalf of her child.
With regard to governmental immunity, the plaintiff argues that the defendants are not entitled based on the paramedics' actions because they proprietary. There is no evidence, argues plaintiff, that the treatments provided by the paramedics involved reasoned judgment that typically produces different acceptable results. Plaintiff notes that defendant has failed to include and expert opinion that the intubation was properly and appropriately performed, and that there was any judgment or discretion involved in the paramedics' performance of the intubation. Plaintiff maintains that the law favors decisions on the merits and requests that the Court vacate the order and judgment of dismissal.
Defendants' Opposition
The defendants, the City of New York, by their attorneys, oppose the plaintiff's motion to vacate the default order, claiming that the plaintiff has been dilatory in asserting her rights and has not proffered a reasonable excuse for the default. The defendants point to plaintiff's counsel's delay of nearly a full year from the date the order was issued to take any action, as well as the lack of explanation for such a delay. The defendants argue that this behavior is undeniably dilatory and that it would be a reversible error to grant this application, citing to Greenwich Sav. Bank v JAJ Carpet Mart, Inc., 126 AD2d 451 [1st Dep't 1987] and Pichardo-Garcia v. Josephine's Spa Corp., 91 AD3d 413 [1st Dep't 2012], among others. The defendants also assert that they have suffered prejudice due to plaintiff's counsel's conduct and is now forced to oppose their motion without access to the original 911 recordings, as the hard copies were not retained, which places the defendants at a clear disadvantage as plaintiff's arguments are based on the content of those recordings. The defendants argue that the plaintiff's counsel's excuse of not seeing the scheduling email until after the motion had been decided is not reasonable and merely establishes the attorney's inability to keep track of court appearances. Further, the defendants note that it was sufficient for the undersigned that the return date was clearly posted on the E-Courts system in addition to a specific notification email sent to the plaintiff addressing the adjournment and stating the new date.
With respect to the underlying action, the defendants assert that the plaintiff has failed to establish that a special duty was owed to Mr. Ramos, and therefore has not established breach and causation. The defendants note that the plaintiff's allegations contain conclusory references to the medical records by counsel which are not supported by an expert affidavit. Further, the defendants assert that they were not required to "refute" these allegations, as the defendant's motion was based upon grounds that no special duty existed and they were entitled to governmental immunity. The defendants claim they met their burden of setting forth arguments supporting the plaintiff's failure to plead and prove special duty and entitlement to governmental immunity and was not required to offer expert testimony that the intubation was performed properly and appropriately. Rather, it is the plaintiff's burden, in seeking to vacate the default, to provide evidentiary support in the form of expert testimony to support their allegations regarding the care provided by the paramedics. The defendants disagree with plaintiff's assertion that the paramedics were providing a proprietary function, and argues that the public duty doctrine applies to municipal paramedics as well as basic life support technicians, citing Applewhite v Accuhealth, Inc., 21 NY3d 420 [2013], as well as numerous subsequent appellate-level decisions.
The defendants maintain there was no promise made to Mr. Ramos. The defendants assert that the 911 operators' statements regarding the expediency of the arrival of the ambulance, contrary to plaintiff's claim, cannot constitute a promise sufficient to establish a special duty, as the statements that an ambulance is "on its way" and will "be there as soon as possible" are akin to what were considered "vaguely-worded statements" in Dinardo v City of New York, 13 NY3d 872, 873 [2009], which the Court of Appeals considers "not definitive enough to generate justifiable reliance" for special duty purposes. The defendants also state that the government can have no liability when it does what it says it was going to do, citing Conde v City of New York, 24 AD3d 595 [2d Dep't 2005], which in this case was dispatching an ambulance.
The record reflects that the first 911 call was received at 10:57am, and an ambulance was assigned and en route as of 11:00am. The second 911 call was received at 11:07am, by which time the ambulance was "on its way." (See FDNY dispatch log, annexed to Plaintiff's motion as "Exbibit A").
The defendants further argue that no special duty was established because Mr. Ramos was not in direct contact with the paramedics. The defendants assert that the plaintiff's argument that Ms. Gonzalez's 911 call on behalf of Mr. Ramos establishes direct contact was rejected by the Court of Appeals in Helman v County of Warren, 67 NY2d 799 [1986] (911 call dialed by non-party insufficient to establish direct contact between the municipality and the injured party upon which a special duty could be predicated). The defendants also assert that Ms. Gonzalez is not an "immediate family member" because she was not Mr. Ramos' wife and there were no plans for a wedding, citing Santan v Salmeron, 79 AD3d 1122 [2d Dep't 2010], which denied recovery when premised upon a relationship with a girlfriend with regard to bystander claims for emotional distress, referring to the "immediate family" requirement. The defendants argue that the Court should follow the same reasoning with regard to the special duty "immediate family" exception - that it should be construed narrowly to avoid diluting the policy of limiting municipal liability. The defendants also assert that Mr. Ramos did not detrimentally rely upon the paramedics because there was no alternative way of getting him to the hospital. The record reflects that Mr. Ramos refused to have Ms. Gonzalez drive him to the hospital because he was not physically strong enough to walk to the car without passing out, and due to his weight the other persons present would not have been able to move him. Due to Ms. Gonzalez' own statement that she had no way of getting him to the hospital besides emergency services, it was impossible for Mr. Ramos to forgo "other avenues of protection." (See 50-h of Ms. Gonzalez, annexed to Defendants' opposition as Exhibit "I", p. 61).
With respect to governmental immunity, the defendants assert that throughout the interaction with Mr. Ramos the paramedics made reasoned decisions based on their training and field conditions and appropriately exercised their professional discretion. As established in the testimony of PM Oscar, the general practice of emergency medical personnel upon arriving at a scene with an unconscious patient is to ensure that the airway is open, check for breathing and begin ventilations if necessary, check for a pulse, and then begin CPR if necessary. The defendants assert that this is precisely what occurred, and upon determining Mr. Ramos was in full cardiac arrest and not breathing (airway unobstructed), they applied a bag valve mask, put Mr. Ramos on oxygen, and commenced CPR. Regarding the intubation, the defendants state that the paramedics determined the size of the tube based on visual observations of the patient's airway, placed the tube successfully on the first attempt, and confirmed the tube was properly placed by using capnography. The defendants state that PM Oscar and PM Jackson were trained and certified as paramedics and certified to intubate, place IV lines, and medicate. Further, the defendants assert that, as paramedics, PM Oscar and PM Jackson were permitted to exercise their discretion in making medical determinations concerning the decedent's condition, such as the type of examination and tests to perform, whether the decedent was stable enough to be transported to a hospital, citing DiMeo v Rotterdam Emergency Med. Servs., Inc., 110 AD3d 1423 [3d Dep't 2013]. The defendants maintain that the plaintiff has no reasonable excuse for her default and has failed to establish a special duty existed, and request that the Court deny plaintiff's motion to vacate the default order.
In their reply, plaintiffs assert that their motion is timely under CPLR §5015(a). Plaintiffs also argue that the default was not willful or deliberate, as plaintiff had no intention to abandon the motion. Plaintiffs maintain that an expert is not required to oppose the defendant's motion because at issue is a legal argument concerning the sufficiency of the pleadings and whether a special duty was required to be pled under the circumstances. Plaintiff notes that the defendants did not submit an expert affirmation in their summary judgment papers or claim that the intubation was properly performed and argue that this deficiency constitutes a failure to establish a prima facie entitlement to summary judgment on the issue.
DISCUSSION
The Court, pursuant to CPLR §5015(a), may relieve a party from a judgment or order on motion of any interested person upon the ground of excusable default if the motion is made within one year after service of a copy of the judgment or order with written notice of entry. Such a determination is made at the Court's discretion for sufficient reason and in the interests of justice. "A party seeking to vacate a default is required to demonstrate both a reasonable excuse for the default and a meritorious cause of action." Weekes v Karayianakis, 304 AD2d 561, 562 [2d Dep't 2003].
It has been held that it is within the discretion of the court to excuse a default resulting from law office failure where such failure was not willful or deliberate. Weekes v Karayianakis, 304 AD3d at 562. In considering the plaintiff's 356-day delay in taking action on this case after the default order was entered, this Court declines to excuse plaintiff's default as the Court finds that the plaintiff's excuse is inadequate.
Regardless of whether the plaintiff had met the criteria for providing a reasonable excuse for default, this Court denies plaintiff's motion because plaintiff has failed to establish that the underlying claim is meritorious due to the failure to plead and prove the paramedics owed Mr. Ramos a special duty.
"A municipal emergency response system - including the ambulance assistance rendered by first responders such as the FDNY EMTs... -- should be viewed as a classic governmental, rather than proprietary, function." Applewhite v Accuhealth, 21 NY3d 420, 430 [2013], see Rosenblatt v City of N.Y., 55 Misc.3d 1212(A) [NY Sup. Ct. 2017]. This Court notes that, contrary to the plaintiff's assertions, the holding of Applewhite v Accuhealth does not only apply to basic life support technicians but to municipal paramedics as well.
It is well established that municipalities cannot be held liable for alleged negligence in governmental activities undertaken through their agents except in cases where plaintiffs can establish a "special relationship" with the municipality. Valdez v City of New York, 18 NY3d 69 [2011]; McLean v City of New York, 12 NY3d 194 [2009]; Kovit v Estate of Hallums, 4 NY3d 499, 506 [2005]; Pelaez v Seide, 2 NY3d 186 [2004]; and Cuffy v City of New York, 69 NY2d 255 [1987]. A "special relationship" is formed if (1) a private right of action under any statute is implicated; (2) the municipality assumed positive direction and control in the face of a known, blatant and dangerous safety violation; or (3) the municipality voluntarily assumed a duty. McLean v City of New York, 12 NY3d 194 [2009]. With regard to the last category, the plaintiff must prove there was an assumption by the municipality, through either promises or actions, of an affirmative duty to act on behalf of the party who was injured; knowledge on the part of the municipality's agents that inaction could lead to harm; some form of direct contact between the municipality's agents and the injured party; and that party's justifiable reliance on the municipality's affirmative undertaking. Cuffy v City of New York, 69 NY2d 255 [1987].
This Court recognizes that it is essential that in a case predicated on a governmental immunity where the theory of recovery is based upon an allegation of a breach of a duty owed to the public at large, that the plaintiff plead and prove a "special relationship," and that failure to allege or provide the factual predicate for the special relationship theory in the Notice of Claim or Complaint is fatal to the maintenance of the action. Santaiti v Town of Ramapo, 162 AD3d 921 [2d Dept 2018]; Rozell v Milby, 98 AD3d 960 [2d Dept 2012]; Puello v City of New York, 118 AD3d 492 [1st Dept 2014]; Blackstock v Board of Education, 84 AD3d 524 [1st Dept 2009]; Rollins v New York City Board of Education, 68 AD3d 540 [1st Dept 2009].
This Court also recognizes the Second Department's decision in Brown v. City of New York, 73 AD3d 113 [2d Dept. 2010] in which the statements by the police captain of "don't worry" and "[I am] I am going to take care of it," were deemed "vague and ambiguous" and therefore did not amount to assurances sufficient to establish the first prong of the Cuffy test. Here, the 911 operator's statements regarding the ambulance's dispatch and status are equally "vague and ambiguous" and not definite enough to be an assurance. See Dinardo v City of NY, 13 NY3d 872, 874 [2009]. However, the dispatch of the ambulance is not even the issue here, as the ambulance was in fact dispatched as the 911 operator stated, and the defendants can therefore have no liability for doing what they said they would do. Conde v. City of New York, 24 AD3d 595 [2d Dep't 2005]. Since the plaintiff has failed to establish the first prong of the Cuffy test, the plaintiff cannot establish that a special duty was owed to Mr. Ramos. Further, the defendants have shown there is an insufficient factual basis to support direct contact or detrimental reliance.
It is well established that "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." McLean v City of New York, 12 NY3d 194, 203 [2009]; Valdez v City of New York, 18 NY3d 69, 76-77 [2011]. Here, the defendants are entitled to governmental immunity, as the decisions of the paramedics regarding the treatment provided to Mr. Ramos utilized "reasoned judgment which could typically produce different acceptable results." Valdez v City of New York, 18 NY3d 69, 79-80, citing Tango v Tulevech, 61 NY2 34, 41 [1983].
The Court notes that, putting aside the issue of whether a special duty existed, the plaintiff has presented no medical evidence establishing a departure from accepted standards of medical practice to support a claim of malpractice.
A defendant moving for summary judgment in a case sounding in medical malpractice "must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the plaintiff's injuries." Guctas v Pessolano, 132 AD3d 632, 633 [2d Dept 2015], quoting Matos v Khan, 119 AD3d 909, 910 [2d Dept 2014]. Once the movant has made a prima facie showing, the plaintiff must submit evidence in opposition to rebut the movant's prima facie showing. Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Poter v Adams, 104 AD3d 925 [2d Dept 2013]; Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]. The plaintiff must "lay bare her proof and produce evidence, in admissible form, sufficient to raise a triable issue of fact as to the essential elements of a medical malpractice claim, to wit, (1) a deviation or departure from accepted medical practice, [and/or] (2) evidence that such a departure was a proximate cause of injury." Sheridan v Bieniewicz, 7 AD3d 508, 509 [2d Dept 2004]; Gargiulo v Geiss, 40 AD3d 811-812 [2d Dept 2007]. In order to prevail on a claim for medical malpractice, "expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Nicholas v Stammer, 49 AD3d 832-833 [2008]. Here, the plaintiff has not submitted an expert affirmation supporting any claims of medical malpractice.
CONCLUSION
The plaintiff, Ms. Gonzalez, has failed to meet the burden of providing a reasonable excuse for default and offering proof of a meritorious cause of action. Accordingly, the motion by the plaintiff to vacate the default order of November 29, 2018 pursuant to CPLR §5015(a) is denied.
This shall constitute the decision and order of this Court. The movant's counsel is directed to electronically serve a copy of this decision and order with notice of entry on all parties within thirty days (30) and thereafter to electronically file an affidavit of service thereof with the Kings County Clerk. Dated: June 4 2020
Brooklyn, NY
ENTER
/s/_________
Hon. Bernard J. Graham, Justice
Supreme Court, Kings County