Opinion
Index No. 67063/2016
04-23-2019
DEVAN MULVANEY, as Executor of the Estate of DONALD MULVANEY, deceased, as Executor of the Estate of LEDELL MULVANEY, deceased, and as Administrator of the Estate of KATHERINE MULVANEY, deceased, Plaintiff, v. COUNTY OF WESTCHESTER, TOWN OF YORKTOWN, YORKTOWN HEIGHTS ENGINE COMPANY #1, THE MILLWOOD FIRE COMPANY NUMBER ONE, INC., MOHEGAN VOLUNTEER FIRE ASSOCIATION, INC., EMPRESS AMBULANCE SERVICE, INC., MOUNT KISCO VOLUNTEER AMBULANCE CORPS, INC. OSSINING VOLUNTERR AMBULACEE CORPS, INCORPORATED, PEEDSKILL COMMUNITY VOLUNTEER AMBULANCE CORP,, and SOMERS VOLNNTRER FIRE DEPARTMENT, INC., Defendants, Town of Yorktown, Third-Patty Plaintiff, v. Empress Ambulance Service, Inc., Third-Patty Defendant
Unpublished Opinion
PRESENT: HON. SAM D. WALKER, J.S.C.
DECISION AND ORDER
HON. SAM D. WALKER, J.S.C.
The following papers were reviewed on the motion seeking an order dismissing the action as against the defendant, Ossining Volunteer Ambulance Corp., Inc.:
Notice of Motion/Affirmation/Exhitit A-C 1-5
Affidavit in Support/Exhibit A 6-7
Affidavit in Support/Exhibit A 8-9
Affidavit in Support 10
Memorandum of Law in Support 11
Affirmation in Opposition 12
Reply Affirmation/Exhibits A-B 13-15
Based on the foregoing papers the motion is granted.
Factual and Procedural Backgrnnnd
The plaintiff commenced an action on November 14, 2016 against the County of Westchester and the Town of Yorktown, stemming from a vehicular accident that occurred on August 15, 2015, when a vehicle that was driving northbound on the Taconic State Parkway crossed the center embankment and collided with the Mulvaneys' vehicle traveling southbound, resulting in personal injuries and the deaths of the plaintiffs father, mother and sister, Donald, Ledell and Katherine Mulvaney.
On November 17, 2017, the Town of Yorktown (the "Town") filed a third-party summons and complaint, against Empress Ambulance Service, Inc., and on August 15, 2018, the plaintiff commenced this action against the defendant, Ossining Volunteer Ambulance Corps., Inc. ("OVAC") and other named defendants.
OVAC now files the instant motion seeking dismissal of the action against it, arguing that the parts of the complaint alleging wrongful death, must be dismissed as untimely, pursuant to CPLR 3211 (a)(5) because the plaintiff failed to file suit within two years of the decedents' deaths and within two years six months, as required under CPLR section 214-a; and that the complaint must be dismissed, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7), for failure to state a cause of action where there is incontrovertible evidence, including documentary evidence, that the OVAC crew that responded to the incident did not provide any extrication, care, treatment or transport of the decedents in this case.
The plaintiffs attorney filed an affirmation in opposition, arguing that OVAC failed to meet its burden and the requirement of demonstrating that it is entitl~d to judgment as a matter of law. The attorney also argues that the motion is premature, since OVAC is in exclusive control of material information necessary for the plaintiff to raise a genuine issue of material fact and contends that he has not had an opportunity to verify the information in the affidavits asserting no involvement with the Mulvaney vehicle, which were submitted in support of the motion. He further states that, even though OVAC argues that it neither performs nor has the equipment to conduct vehicular extractions, such does not clarify whether OVAC aids other agencies in extractions.
The attorney argues that discovery has not been completed! and OVAC's assertion that it is shielded from liability stemming from claims of conscious pain and suffering due to a two year and six month statute of limitations, because it provides medical care by extension of a medical director's license to practice medicine, has not been verified, since OVAC did not answer the complaint and no examinations before trial have been held.
In reply, OVAC's attorney argues that the plaintiff's attorney's affirmation is insufficient to defeat the motion to dismiss, since the attorney has no personal knowledge of the facts. OVAC's attorney also argues that the plaintiff's attorney fails to address the sworn affidavits from the two people who were at the scene of the accident, stating that they had no role in the extrication, treatment or transpott of the Mulvaney decedents.
DISCUSSION
Rule 3211 of the Civil Practice Law and Rules provides, in relevant part that:
(1) a defense is founded upon documentary evidence; or
5) the cause of action may not be maintained because of arbitration and award collateral estoppe,, discharge in bankruptcy, infancy or other disabliity of the moving party, paymen,, release, res judicata, statute of limitations, or statute of frauds; or
(7) the pleading fails to state a cause of action...."N.Y. Civ. Prac. L. & R. 3211(a)(1), (a)(3), (a)(4), (a)(5) and (a)(7).
In moving to dismiss a cause of action pursuant to CPLR 3211 (a)(5), a defendant must demonstrate that the time within which to commence the action has expired." Plain v Vassar Bros. Hosp., 115 A.D.3d 922, 923 [2d Dept 2014]). OVAC asserts that the applicable statute of limitations for the wrongful death claim expired on August 15, 2017 for Katherine and Ledell Mulvaney and September 15, 2017 for Donald Mulvaney. The plaintiff did not file the action against OVAC until August 15, 2018, therefore, that part of the action for wrongful death is dismissed.
With regard to the other claims, "[a] motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiffs factual allegations, conclusively estabiishing a defense as a matter of law" (730 J & J LLC v Fillmore Agency, Inc., 303 A.D.2d 486 [2d Dept 2003]).
Further, under CPLR 3211(a)(7), initially "[t]he sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law..." (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268,275 [1977]). A motion to dismiss pursuant to CPLR 3211(a)(7) will be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it. (Bokhour v GTI Retail Holdings, Inc., 94 A.D.3d 682,683 [2d Dept 2012]).
OVAC submitted affidavits from paramedics, Christiana Corrado ("Corrado") and Lisa Sillins ("Sillins"), who both responded to the scene of the accident. Corrado avers that she treated and transported a woman who was tne mother of a two-year old child and remained with that patient the entire duration of the incident, including transporting her to Westchester Medical Center. Corrado also denies extricating, treating or transporting anyone from a Toyota (the Mulvaney's vehicle) or anyone named Mulvaney.
Sillins also avers that, at the scene, she took care of a patient who had already been placed in a cervical collar and on a backboard by other providers. She states that her patient was a thirty-three year old male and was not named Mulvaney. She avers that she remained with that patient the entire time she was at the scene of the accident and further states that OVAC does not carry extrication equipment, nor does it engage in accident victim extrication. She states that, upon information and belief, her patient survived his injuries.
OVAC also submitted an affidavit from EMS Director Dominic Franzoso, who confirms that Ossining does not carry extrication equipment on its ambulances and states that whenever a patient is transported, OVAC completes a Patient Care Report, transmits a copy to the receiving hospital and preserves a copy for its records. He further states that he has conducted a search of the records that it has no records to indicate OVAC crews participated in the extrication, care, treatment or transport of anyone named Mulvaney.
The plaintiff did not submit any evidence or documentation to rebut OVAC's affidavits and documentation submitted. Therefore, the documentary evidence utterly refutes the plaintiffs factual allegations, conclusively establishing a defe~se as a matter of law and a material fact as claimed by the plaintiff to be one, is not a fact at all and there is no dispute regarding it.
Accordingly, based on the foregoing, it is ORDERED that the motion to dismiss granted and it is further ORDERED that the action against Ossining Volunteer Ambulance Corp., Inc., is dismissed.
The foregoing shall constitute the decision and order of the Court.