Summary
In Canberg v. County of Nassau, 214 A.D.3d 943 (2nd Dep't 2023), the Court reiterates the principle that a municipality will be immune from civil liability if it was acting in a governmental capacity in undertaking acts for the protection and safety of the public pursuant to the general police powers.
Summary of this case from Paulino v. 335 Grand Realty, Ltd.Opinion
2020–06598 Index No. 604692/16
03-29-2023
Michael CANBERG, et al., respondents-appellants, v. COUNTY OF NASSAU, appellant-respondent, et al., defendants.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Samantha A. Goetz of counsel), for appellant-respondent. Curcio Mirzaian Sirot LLC, New York, NY (Thomas J. Palma of counsel), for respondents-appellants.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Samantha A. Goetz of counsel), for appellant-respondent.
Curcio Mirzaian Sirot LLC, New York, NY (Thomas J. Palma of counsel), for respondents-appellants.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, etc., the defendant County of Nassau appeals, and the plaintiffs cross-appeal, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), entered May 1, 2020. The order, insofar as appealed from, denied that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Michael Canberg against it.
ORDERED that the cross-appeal is dismissed as abandoned; and it is further,
ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Michael Canberg against it is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant County of Nassau.
The plaintiff Michael Canberg (hereinafter the injured plaintiff) suffered a seizure while asleep in an upstairs bedroom of the home of his wife's cousin. The cousin called 911. Shortly thereafter, a Nassau County police officer arrived, followed by an ambulance. The injured plaintiff was still suffering from the seizure when the officer and the ambulance arrived, and the officer handcuffed the injured plaintiff's hands to confine them in order to transport the injured plaintiff to a hospital. The police and an ambulance medical technician placed the injured plaintiff on a Reeves stretcher and carried him down the stairs and out of the house to the ambulance.
The injured plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against, among others, the defendant County of Nassau, alleging that the County was negligent and grossly negligent in its care of the injured plaintiff. The County moved, among other things, for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff against it. In an order entered May 1, 2020, the Supreme Court, inter alia, denied that branch of the County's motion. The County appeals, and the plaintiffs cross-appeal.
The cross-appeal must be dismissed as abandoned, as the plaintiffs’ brief does not request reversal of any portion of the order entered May 1, 2020 (see Sammy v. First Am. Tit. Ins. Co., 205 A.D.3d 949, 953, 168 N.Y.S.3d 519 ; Burke v. Newburgh Enlarged City Sch. Dist., 195 A.D.3d 674, 677, 145 N.Y.S.3d 355 ).
" ‘When a negligence claim is asserted against a municipality, the first issue for a court to decide is whether the municipal entity was engaged in a proprietary function or acted in a governmental capacity at the time the claim arose’ " ( Turturro v. City of New York, 28 N.Y.3d 469, 477, 45 N.Y.S.3d 874, 68 N.E.3d 693, quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Trenholm–Owens v. City of Yonkers, 197 A.D.3d 521, 522, 153 N.Y.S.3d 26 ). "A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted]; see J.E. v. Incorporated Vil. of Westbury, 200 A.D.3d 759, 760, 155 N.Y.S.3d 101 ; Marks–Barcia v. Village of Sleepy Hollow Ambulance Corps, 183 A.D.3d 883, 884, 125 N.Y.S.3d 116 ). "If the municipality is engaged in a proprietary function, it is subject to suit under the ordinary rules of negligence" ( Trenholm–Owens v. City of Yonkers, 197 A.D.3d at 523, 153 N.Y.S.3d 26 ; see Tara N.P. v. Western Suffolk Bd. of Coop. Educ. Servs., 28 N.Y.3d 709, 713, 49 N.Y.S.3d 362, 71 N.E.3d 950 ; Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 ). "In contrast, a municipality will be deemed to have been engaged in a governmental function when its acts are undertaken for the protection and safety of the public pursuant to the general police powers" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131 [internal quotation marks omitted]; see Connolly v. Long Is. Power Auth., 30 N.Y.3d 719, 727, 70 N.Y.S.3d 909, 94 N.E.3d 471 ; Trenholm–Owens v. City of Yonkers, 197 A.D.3d at 523, 153 N.Y.S.3d 26 ). If the municipality was acting in a governmental capacity, then the plaintiff must prove the existence of a special duty as an element of his or her negligence cause of action (see Ferreira v. City of Binghamton, 38 N.Y.3d 298, 173 N.Y.S.3d 484, 194 N.E.3d 239 ; Turturro v. City of New York, 28 N.Y.3d at 478, 45 N.Y.S.3d 874, 68 N.E.3d 693 ; Trenholm–Owens v. City of Yonkers, 197 A.D.3d at 523, 153 N.Y.S.3d 26 ).
" ‘Protecting health and safety is one of municipal government's most important duties’ " ( Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d 1264, 1266, 109 N.Y.S.3d 111, quoting Laratro v. City of New York, 8 N.Y.3d 79, 81, 828 N.Y.S.2d 280, 861 N.E.2d 95 ). Thus, "[w]hen a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a ‘special duty’ to the injured party" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 423–424, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d at 1266, 109 N.Y.S.3d 111 ).
Here, contrary to the plaintiffs’ contentions, the officer's actions in helping the ambulance medical technician place the injured plaintiff onto the Reeves stretcher in order to transport the injured plaintiff to the hospital were the actions of a provider of emergency medical services responding to a 911 call for assistance, and therefore, the County was performing a governmental function and could not be held liable unless it owed a special duty to the injured plaintiff (see Ferreira v. City of Binghamton, 38 N.Y.3d 298, 173 N.Y.S.3d 484, 194 N.E.3d 239 ; Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d at 1266, 109 N.Y.S.3d 111 ; Earle v. Village of Lindenhurst, 130 A.D.3d 973, 973, 14 N.Y.S.3d 469 ).
The plaintiffs contend that a special duty existed because the County assumed a "special relationship" with the injured plaintiff beyond the duty that is owed to the public generally ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d at 1266, 109 N.Y.S.3d 111 ; Gonzalez v. State of New York, 156 A.D.3d 764, 765, 65 N.Y.S.3d 719 ). "The plaintiff has the heavy burden of establishing the existence of a special relationship by proving all of the following elements: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) the party's justifiable reliance on the municipality's affirmative undertaking" ( Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d at 1266, 109 N.Y.S.3d 111 [internal quotation marks omitted]; see Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 ). "Of the four factors, the ‘justifiable reliance’ element is particularly ‘critical’ because it ‘provides the essential causative link between the special duty assumed by the municipality and the alleged injury’ " ( Halberstam v. Port Auth. of N.Y. & N.J., 175 A.D.3d at 1266–1267, 109 N.Y.S.3d 111, quoting Valdez v. City of New York, 18 N.Y.3d 69, 81, 936 N.Y.S.2d 587, 960 N.E.2d 356 [internal quotation marks omitted]).
"It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself" ( Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; see Estate of M.D. v. State of New York, 199 A.D.3d 754, 158 N.Y.S.3d 127 ). In order to meet this burden, a complaint must allege "facts and circumstances from which the existence of a special duty could reasonably be inferred" ( Bishop v. Bostick, 141 A.D.2d 487, 489, 529 N.Y.S.2d 116 ; see Cockburn v. City of New York, 129 A.D.3d 895, 897, 10 N.Y.S.3d 630 ). In situations where the plaintiff fails to meet this burden of demonstrating a special duty, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity (see Ferreira v. City of Binghamton, 38 N.Y.3d 298, 173 N.Y.S.3d 484, 194 N.E.3d 239 ; Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 ; Ortiz v. City of New York, 171 A.D.3d 1198, 1200, 98 N.Y.S.3d 614 ).
Here, the County demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the injured plaintiff against it by establishing that the allegations in the complaint failed to allege facts and circumstances from which the existence of a special duty could reasonably be inferred (see Earle v. Village of Lindenhurst, 130 A.D.3d at 974, 14 N.Y.S.3d 469 ; Cockburn v. City of New York, 129 A.D.3d at 897, 10 N.Y.S.3d 630 ; Estate of Gail Radvin v. City of New York, 119 A.D.3d 730, 733, 991 N.Y.S.2d 609 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see Earle v. Village of Lindenhurst, 130 A.D.3d at 974, 14 N.Y.S.3d 469 ; Torres v. City of New York, 116 A.D.3d 947, 948, 983 N.Y.S.2d 855 ). Accordingly, the Supreme Court should have granted that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff against it. The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
IANNACCI, J.P., CHAMBERS, MALTESE and TAYLOR, JJ., concur.