Opinion
1065 Index No. 807291/21E Case No. 2023-00711
11-21-2023
Regina TROFIMOVA etc., et al., Plaintiffs–Respondents, v. SENIORCARE EMERGENCY MEDICAL SERVICES, INC., Defendant–Appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant. Shakhnevich Law Group, PC, Brooklyn (Andrei A. Popescu of counsel), for respondents.
Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for appellant.
Shakhnevich Law Group, PC, Brooklyn (Andrei A. Popescu of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Oing, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 30, 2023, which denied defendant Seniorcare Emergency Medical Services, Inc.’s motion pursuant to CPLR 214–a, 3211(a)(5), 3211(a)(7), and EPTL 5–4.1 to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Contrary to plaintiffs’ contention, the allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant "bears a substantial relationship to the rendition of medical treatment," and thus plaintiffs’ claims must be viewed within a medical malpractice framework ( Scott v. Uljanov, 74 N.Y.2d 673, 675, 543 N.Y.S.2d 369, 541 N.E.2d 398 [1989] ; see ( Xenias v. Mount Sinai Health Sys. Inc., 191 A.D.3d 454, 142 N.Y.S.3d 2 [1st Dept. 2021], lv denied 37 N.Y.3d 904, 2021 WL 2252065 [2021] ). The dispatcher would need to understand the significance of "shortness of breath," have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance (see Xenias, supra ; see also B.F. v. Reproductive Medicine Assoc. of N.Y., LLP, 136 A.D.3d 73, 80, 22 N.Y.S.3d 190 [1st Dept. 2015] ).
Since plaintiffs’ claims sound in medical malpractice, the two-and-a-half-year statute of limitations applies (see CPLR 214–a ), which, it is undisputed, expired before plaintiffs commenced the action, even taking into account the COVID toll. We also note that the wrongful death claim is properly dismissed as time barred since the complaint was not filed within two years of decedent's death (see EPTL 5–4.1 ).