Opinion
11341 Index 402692/06
04-02-2020
Priscilla PEREZ, as Administrator of the Estate of Antonio Perez, deceased, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, North General Hospital, Defendant.
Michael N. David, New York, for appellant. James E. Johnson, Corporation Counsel, New York (Aaron M. Bloom of counsel), for respondents.
Michael N. David, New York, for appellant.
James E. Johnson, Corporation Counsel, New York (Aaron M. Bloom of counsel), for respondents.
Renwick, J.P., Richter, Mazzarelli, Singh, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered August 22, 2018, which granted the motion of defendants City of New York and Fire Department of the City of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In order to state a claim that defendants were negligent in failing to provide an ambulance in a timely fashion, plaintiff was required to show a special relationship (see Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 423–424, 428, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ; 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] ). However, plaintiff did not allege a special duty or the factual predicate for finding a special duty in her notice of claim or the complaint, precluding her from asserting it for the first time in opposition to summary judgment (see Blackstock v Board of Educ. of the City of N.Y., 84 A.D.3d 524, 921 N.Y.S.2d 858 [1st Dept. 2011] ; Rollins v. New York City Bd. of Educ., 68 A.D.3d 540, 541, 889 N.Y.S.2d 456 [1st Dept. 2009] ). In any event, the record establishes that plaintiff could not prove all of the elements necessary to show a special relationship (see Laratro, at 84, 828 N.Y.S.2d 280, 861 N.E.2d 95 ). There was no direct contact between defendants and decedent or an immediate family member, and there is no indication that more efficacious alternatives to waiting for the ambulance to arrive were available ( id. ; see Silver v. City of New York, 281 A.D.2d 233, 234, 721 N.Y.S.2d 651 [1st Dept. 2001] ).
We have considered plaintiff's remaining arguments and find them unavailing.