Summary
In Morante v. Citywide Mobile Response Corp., 138 A.D.3d 544, 30 N.Y.S.3d 617 (1st Dept. 2016), the First Department held that an ambulette driver owed no duty to escort a passenger down the ambulette stairs when she took it upon herself to leave without requesting assistance from the driver.
Summary of this case from Polanco v. Action Ambulette Inc.Opinion
849, 20475/09E.
04-19-2016
Joan K. MORANTE, et al., Plaintiffs–Appellants, v. CITYWIDE MOBILE RESPONSE CORP., Defendant–Respondent, Citywide Ambulance Service, Inc., et al., Defendants.
David Zevin, Roslyn, for appellants. Rivkin Radler LLP, Uniondale (Henry M. Mascia of counsel), for respondent.
David Zevin, Roslyn, for appellants.
Rivkin Radler LLP, Uniondale (Henry M. Mascia of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, MOSKOWITZ, KAPNICK, WEBBER, JJ.
Opinion Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 5, 2014, dismissing the complaint as against defendant Citywide Mobile Response Corp. pursuant to an order, same court and Justice, entered July 10, 2014, which granted said defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Joan K. Morante (plaintiff) alleges that, after accompanying her father on a trip in defendant's ambulette, she fell on the steps as she was exiting the ambulette, resulting in the exacerbation of a previously unknown hip condition. Defendant made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating through expert and documentary evidence that the ambulette was not defective, and that it owed plaintiff no duty to escort her down the ambulette stairs when she took it upon herself to leave, without requesting assistance from the driver (see Saidoff v. New York City Tr. Auth., 105 A.D.3d 726, 727, 963 N.Y.S.2d 157 [2d Dept.2013] ).
In opposition, plaintiffs failed to raise a triable issue of fact. Although plaintiff claims that she was injured in a different ambulette, her testimony was clearly contradicted by defendant's “compelling documentary evidence” showing that the ambulette assigned to transport her father was the ambulette involved in plaintiff's accident (Alvarez v. New York City Hous. Auth., 295 A.D.2d 225, 226, 744 N.Y.S.2d 25 [1st Dept.2002] ; see also Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968] ). Moreover, her claim that the other steps were slippery is insufficient to raise an issue of fact, since she testified that she did not know whether her foot had slipped. In addition, her testimony that her foot did not have enough “stepping space” is insufficient to raise an issue of fact as to whether the ambulette was defective (see Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 108, 824 N.Y.S.2d 3 [1st Dept.2006] ).