Summary
In Adderley v. City of New York (304 AD2d 485, lv denied 100 NY2d 511), where the caller was the decedent's girlfriend and the mother of his child, and the decedent was unable to make the call because he was suffering from an asthma attack, it was held that the relationship was sufficient to find the direct contact prong of the special relationship test to have been established.
Summary of this case from Laratro v. City of New YorkOpinion
981
April 29, 2003.
Judgment, Supreme Court, Bronx County (George Friedman, J. and a jury), entered August 24, 2001, in a wrongful death action arising out of defendants' failure to deliver timely emergency medical services to the 20-year-old decedent suffering an asthma attack, awarding the infant plaintiff, the decedent's daughter, pre-structured damages of $70,000 for past loss of support and, upon the infant plaintiff's stipulation in lieu of a new trial on damages, $1 million for future loss of parental guidance and $1.5 million for future loss of support over a period of 17 years, unanimously affirmed, without costs.
Philip Newman, for plaintiff-respondent.
Janet L. Zaleon, for defendants-appellants.
Before: Buckley, P.J., Mazzarelli, Ellerin, Williams, Gonzalez, JJ.
The weight of the evidence supports the findings of proximate cause, which turned largely on the credibility of expert testimony as to whether the decedent would have survived had EMS arrived sooner, and of special relationship, which turned largely on the phone conversation between the decedent's companion and EMS, whether the former followed the latter's instructions, fairly interpreted, and, if she did, whether there were other efficacious means of assistance available that the companion would have pursued but for such conversation (cf. Silver v. City of New York, 281 A.D.2d 233). The damage awards, as reduced, do not deviate materially from what is reasonable compensation under the circumstances (cf. Paccione v. Greenberg, 256 A.D.2d 559; Garcia v. New York City Health Hosps. Corp., 230 A.D.2d 766). We have considered defendants' other arguments and find them to be unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.