Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.

Brief

N.Y.January 7, 2013

To be argued by Drake A. Colley COURT OF APPEALS STATE OF NEW YORK TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE, and SAMANTHA APPLEWHITE, individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICE and THE CITY OF NEW YORK, Defendants-Appellants. APPELLANTS' REPLY BRIEF MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants-Appellants 100 Church Street, 6-173 New York, New York 10007. (212) 788-1613 or 0835 FAY LEOUSSIS, AMY G. LONDON, EDWARD F.X. HART, DRAKE A. COLLEY, of Counsel. August 23, 2012 BRONX COUNTY INDEX NO. 22234/1998 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY STATEMENT OF FACTS 2 ARGUMENT 2 POINT I THE ALLEGATIONS HEREIN, THAT EMS FAILED TO ACT APPROPRIATELY AFTER RESPONDING TO A 911 CALL FOR EMERGENCY MEDICAL SERVICES, IMPLICATE A GOVERNMENTAL FUNCTION, BUT ERRED IN ASSUMING A SPECIAL DUTY PLEADING WHERE PLAINTIFF NEVER ALLEGED ONE 2 POINT II PLAINTIFFS' ARGUMENT THAT THE DEFENDANTS' PURPORTED FAILURES CONSTITUTE "MISFEASANCE" BECAUSE THEY OCCURRED AFTER EMTS ARRIVED AT THE APPLEWHITE HOME, THEREBY NULLIFYING THE PUBLIC DUTY RULE, WAS NECESSARILY REJECTED BY THIS COURT IN PELAEZ, KOVIT, AND LAZAN 14 POINT III ASSUMING THAT PLAINTIFFS HAD PLED A SPECIAL DUTY, THE APPELLATE DIVISION ERRED IN FINDING THAT THE EMTS' RESPONSE TO THE PLAINTIFF MOTHER'S PURPORTED REQUEST THAT THEY IMMEDIATELY TRANSPORT HER DAUGHTER i CONSTITUTED AN ASSURANCE OR GUARANTEE OF SAFETY AND THAT SHE ACTED IN JUSTIFIABLE AND DETRIMENTAL RELIANCE ON THAT RESPONSE 23 CONCLUSION 28 ii TABLE OF AUTHORITIES CASES Anonymous v. Anonymous, 137 AD2d 739 (2d Dept. 1988) 12 Apostolakis v. Centereach Fire District, 300 AD2d 516 (2d Dept. 2002) 21 Bawa v. City of New York, 94 AD3d 926 (2d Dept. 2012) 26 Betancur v. City of New York, 11 AD3d 266 (1st Dept. 2004), Iv. denied, 4 NY3d 707 (2005) 6 Cuffy v. City of New York, 69 NY2d 255 (1987) passim Department of Personnel v. City Civil Service Commission, 94 AD2d 5 (1st Dept. 1983) 11 Dinardo v. City of New York, 13 NY3d 872 (2009) 24 Dunham v. Village of Canisteo, 303 NY 498 (1952) 19 Fonville v. New York City Health and Hospitals Corporation, 300 AD2d 623 (2d Dept. 2002) II, 13, 21 Grieshaber v. City of Albany, 279 AD2d 232 (3d Dept.), Iv. denied, 96 NY2d 719 (2001) 25 In the Matter of World Trade Center Bombing Litigation, 17 NY3d 428 (2011) 10 Joline v. City of New York, 32 AD3d 492 (2d Dept. 2006) 21 Juan C. v. Cortines, 89 NY2d 659 (1997) 12 iii Kovit v. Hallums, 4 NY3d 499 (2005) 16, 17, 22 Kowal v. Deer Park Fire District, 13 AD3d 489 (2d Dept. 2004) 8, 21, 22 Laratro v. City of New York, 8 NY3 d 79 (2006).......................................... 8, 9 Lazan v. County of Suffolk, 4 NY3d 499 (2005) 16, 17, 22 Mays v. City of Middletown, 70 AD3d 900 (2d Dept. 2010) 19 McLean v. City of New York, 12 NY3d 194 (2009) 18, 22, 24 O'Grady v. City of Fulton, 4 NY2d 717 (1958) 19 Ohdan v. City of New York, 268 AD2d 86 (1st Dept. 2000) 22 Parvi v. City of Kingston, 41 NY2d 553 (1977) 18, 19, 20 Pelaez v. Seide, 2 NY3d 186 (2004) passim Persaud v. City of New York, 267 AD2d 220 (2d Dept. 1999) 22 Public Improvements v. Board of Education of the City of New York, 56 NY2d 850 (1982) 12 Ramos v. City of New York, 71 AD3d 1107 (2d Dept. 2010) 22 Scantlebury v. New York City Health and Hospitals Corporation, 4 NY3d 606 (2005) 12 Sherpa v. NYCHHC, 90 AD3d 738 (2d Dept. 2011) 8 iv Smullen v. City of New York, 28 NY2d 66 (1971) 15, 26 Valdez v. City of New York, 18 NY3d 69 (2011) passim Weiss v. Fote, 7 NY2d 579 (1960)] 10 Yearwood v. Town of Brighton, 64 NY2d 667 (1984) 24 STATE STATUTES New York City Charter, Local Law 20 of 1996 4 New York City Charter Ch. 19, §487 .......................... 3 Public Health Law §3013 10 v COURT OF APPEALS STATE OF NEW YORK TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE, and SAMANTHA APPLEWHITE, individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICE and THE CITY OF NEW YORK, Defendants-Appellants. APPELLANT'S REPLY BRIEF PRELIMINARY STATEMENT This brief is submitted in reply to the brief submitted on behalf of plaintiffs-respondents ("plaintiffs"), and in further support of the appeal of defendants-appellants the City of New York ("City"), also sued herein as "Emergency Medical Service," a non-suable entity, from a decision and order of the Appellate Division, First Judicial Department, dated and entered December 15, 2011 ("order"). REPLY STATEMENT OF FACTS For a full rendition of the facts, the Court is respectfully referred to the Statement of Facts appearing in Appellants' Brief, and to the Record on Appeal. ARGUMENT POINT I THE ALLEGATIONS HEREIN, THAT EMS FAILED TO ACT APPROPRIATELY AFTER RESPONDING TO A 911 CALL FOR EMERGENCY MEDICAL SERVICES, IMPLICATE A GOVERNMENTAL FUNCTION, BUT ERRED IN ASSUMING A SPECIAL DUTY PLEADING WHERE PLAINTIFF NEVER ALLEGED ONE. As the City noted in its main brief, where a negligence lawsuit is brought against a municipality, the proper analysis under Valdez v. City of New York, 18 NY3d 69 (2011) requires an initial determination whether the challenged actions constitute a proprietary or a governmental function. If the challenged actions constitute a governmental function, the next question to be addressed in assessing whether a viable tort claim has been asserted is whether a special or particular duty of care was sufficiently pled by virtue of (1) a voluntary assumption of duty; (2) affirmative direction into a blatant hazard; or (3) a private right of action. 2 Plaintiffs argue that the allegations in the instant case involve proprietary rather than governmental functions (Brief of Plaintiffs-Respondents at p. 26). The Appellate Division, First Department correctly determined that plaintiffs' claim implicated a governmental function and not a proprietary one. Plaintiffs maintain that such conclusion was error, as the provision of medical care and treatment "is traditionally a proprietary function" (Brief of Plaintiffs-Respondents at p. 29) . In support of that argument, plaintiffs inappropriately rely on cases involving treatment rendered in hospitals or in physicians' offices, a context entirely distinguishable from governmental emergency rescue services provided in the field in order to transport a person to a medical facility. EMS performs a rescue function, which is a critical mission of the FDNY, of which it is a part, 1 and akin to the functions of the New York City Police Department. Any medically- related efforts by EMS are performed for the purpose of stabilizing an individual for transport and do not constitute medical treatment as is rendered in a hospital or physician's 1 The New York City Charter, in delineating the powers of the Fire Department, provides as follows: "The department shall have the power and authority to provide general ambulance services, emergency medical services and other response services necessary to preserve public health, safety and welfare, and to perform any functions relating to the provision of such services." Ch. 19, §487(f). 3 office. 2 Accordingly, all of EMS's operations from its initial receipt of a call for and dispatch of an ambulance through on-scene emergency measures and ultimate transport to a hospital are properly characterized as governmental functions. Al though EMS's emergency medical technicians and paramedics are presently given more extensive training than ambulance attendants received in the past, their essential role is not to provide treatment for its own sake. Instead, their mission is to safely retrieve sick or injured individuals from their environments, stabilize them, and expeditiously transport them to an appropriate medical care facility. Consideration of the range of challenges routinely faced by EMTs and paramedics the latter having been trained to perform a higher level of emergency intervention than the former clearly illustrates the governmental nature of this municipal emergency medical service. 2 Notably, responsibility for EMS was transferred from the New York City Health and Hospitals Corporation to the Fire Department in 1996, through an amendment to the City Charter (Local Law 20 of 1996), which is fully in keeping with the proposition that EMS operations are closely aligned with the critical rescue function of FDNY. Indeed, all FDNY firefighters are now required to be trained as certified first responders and are dispatched to the most serious emergencies to begin assessment and stabilization prior to the arrival of EMS and transport. http://www.nyc.gov/htrnl/fdny/htrnl/community/ff eligibility requi rernents 080106.shtrnl. 4 Ini tially, once dispatched, EMS crews must maneuver through traffic, locate occasionally hard-to-find addresses, and obtain access to a variety of buildings, some of which lack elevator service. assistance, EMTs Once they reach the person in need of and paramedics must quickly perform an assessment and, if appropriate and possible, stabilize the individual in a setting that is not designed for that purpose. They routinely provide assistance in cluttered interiors, often under inadequate lighting, and frequently among distraught family members and other persons. Unlike hospitals, clinics, or doctor's offices, where patients are generally situated on surfaces optimally designed for medical evaluation and treatment, EMTs and paramedics are constrained to use whatever furniture or floor space is available. When confronted with a gravely ill individual, EMS personnel must quickly weigh the risks and benefits of immediate transport whether against for the those of purpose remaining on of continuing the to scene longer stabilize the distressed individual for transport or to await assistance from other, possibly more highly-trained EMS staff. In deciding whether to immediately transport, EMTs and the individuals, as paramedics difficulties must of take moving into consideration the well as logistical potential traffic-related delays. Transporting individuals may involve 5 maneuvering a stretcher into a small elevator or carrying a heavy person down steep, poorly-lit stairs, often while the individual is attached to an IV or intubated, and while continuing resuscitation efforts. EMTs and paramedics can encounter additional challenges en route to the hospital -- not only from frequently-snarled urban traffic, but also because any necessary further intervention, such as starting an IV, is difficult to perform in a moving ambulance. Moreover, unlike a hospital, clinic or doctor's office setting, and akin to firefighters and police officers, EMS personnel's workplace is anywhere in the City and often involves external hazards and public health concerns. EMS personnel are frequently required to collaborate with police officers and firefighters to confront and manage pUblic hazards. EMS crews also respond to crime scenes where they must interact with NYPD officers, assist in crowd control, and follow procedures designed to preserve physical evidence. [Cf. Betancur v. City of New York, 11 AD3d 266 (lst Dept. 2004), motion for leave to app. den., 4 NY3d 707 (2005)]. Similar pUblic safety concerns are encountered when EMS responds to motor vehicle accident scenes to transport those injured in the accident. In addition, EMS crews may be called on to interact with fire and police personnel at sites of terrorist activity, potentially hazardous material spills, and explosions. EMS 6 crews also contend with emotionally-disturbed persons and must make appropriate emergency decisions for those individuals, including whether to transport them to a hospital for mental health evaluation, with NYPD assistance, against their will. Although plaintiffs contend that it is "beyond dispute that the provision of medical care and treatment is traditionally a proprietary function" (Brief of Plaintiffs- Respondents at p. 29), the case law cited in support arose solely in the context of hospitals. The fact that municipally- operated Lincoln Hospital, for example, is governed by the same legal standard as Lenox Hill Hospital offers no meaningful guidance for the issues at bar. The site of a hospital, including its physical facilities, number and qualifications of available staff, and type and extent of emergency medical equipment, is in no way comparable with respect to any of those factors in the innumerable different types of sites where EMTs and paramedics must perform their services. Plaintiffs assert that once an EMS crew has arrived at a particular scene, "there exists an EMT-patient relationship, just like a physician-patient relationship," acknowledging that "[s] uch a relationship is required in order to give rise to a duty of care by the healthcare provider" (Brief of Plaintiffs- Respondents at p.33). However, the only cases plaintiffs cite in support of this contention are actions against medical 7 facilities and/or physicians. Indeed, the notion of a legally- cognizable "EMT-patient relationship" as such has no support in any case cited by plaintiffs or found by defendants. 3 Plaintiffs concede, as they must, that proof of a special duty is required when the gravamen of a complaint is the failure to timely dispatch an ambulance, as this Court reaffirmed in its most recent EMS-related decision, Laratro v. City of New York, 8 NY3d 79 (2006). The Appellate Division, Second Department, has similarly characterized EMS dispatchers' decision-making regarding the type of ambulance to send as a governmental function, thus barring suit against EMS. NYCHHC, 90 AD3d 738 (2d Dept. 2011). Sherpa v. Plaintiffs, therefore, attempt to distinguish cases relating to ambulance dispatch from the instant case, noting that "[t]he claims here are not for a delay in responding to a 3 Plaintiffs cite Kowal v. Deer Park Fire District, 13 AD3d 489 (2d Dept. 2004), a municipal EMS case, for the proposition that "[t]he provision of medical care by EMTs or any ambulance attendants represents a clearly proprietary function," rendering the special duty doctrine inapplicable (Brief of Plaintiff- Appellants at 34). As an initial matter, the facts in Kowal are readily distinguishable from those herein. The gravamen of the Kowal plaintiff's complaint was a negligently-performed intubation; decedent's condition was worsened when the paramedics incorrectly placed an endotracheal tube into his esophagus (see infra, at 20). However, to the extent that Kowal can be read as holding that, once EMTs or paramedics arrive on scene, any interaction they have with the party seeking assistance constitutes "medical treatment" and thus a proprietary function, such holding was erroneous. 8 911 call -- the traditional circumstance in which a special duty is required, but for negligent treatment once [EMS] arrived" (Brief of Plaintiffs-Respondents at p. 3). Yet they offer no compelling reason why allegations that an EMS crew was negligent after arriving on scene should be treated differently from those in which the crew arrived late or not at all. In fact, in Laratro, supra, this Court acknowledged the fundamentally public nature of emergency medical services, proclaiming that " [p]rotecting health and safety is one of municipal government's most important duties." 8 NY3d at 81. In effect, plaintiffs attempt to draw a jurisprudential line in the sand -- a boundary that they say is crossed once an EMS crew has responded to a 911 call and begun to interact with a sick or injured person, which has the effect of suddenly transforming the role of the EMS crew from governmental to proprietary. There is, however, no principled basis to support such an analytical framework. Nor would such analysis be sound from a policy perspective. These conclusions become all the more apparent when one recognizes, as discussed above, the extent to which EMS's actions are colored by safety and accesS considerations that are not present in a controlled hospital environment. Plaintiffs further argue that accepting the City's posi tion that all of EMS's activi ties are governmental would 9 result in "disparate treatment" because private ambulances functioning in the 911 system would not be subject to the protections of governmental immunity (Brief of Plaintiffs- Respondents at pp. 31-32) . As an initial matter, the limitingfor legislature has provided that volunteer ambulances in New York State, which can be summoned to emergency calls along with 911 system responders, can only be held liable in instances of gross negligence (Public Health Law §3013) . Moreover, the pol icy underpinnings governmental functions liability in its performance of governmental including this Court's entirely justified concern that "the threat of liability might deter or paralyze useful [governmental] activity; and thus the net result of allowing recovery would be to make municipal governments less, not more, effective in protecting their citizens" (see Laratro, supra, at 82) serves as a fully rational basis for the differential treatment of private and municipal ambulance services. As this Court has observed with respect to the state of New York, relinquishment of sovereign immunity did not have the effect of placing the State "on a parity with private corporations or individuals in respect of all of its defenses" (emphasis in original) . In the Matter of World Trade Center Bombing Litigation, 17 NY3d 428, 443 (2011), motion for rearg. den., 18 NY3d 898 (2012) [citing Weiss v. Fote, 7 NY2d 579 (1960)]. 10 There determination by are this additional policy implications Court that the provision of to a on-scene municipal emergency services constitutes a proprietary function, permitting any such case to go to a jury absent allegation and proof of a special duty as long as the plaintiff can obtain an expert to opine that the emergency service failed to abide by a purported standard of care. Such a holding could have a chilling effect on other municipalities statewide, which may find it necessary, due to liability concerns, to significantly downsize such services or eliminate more highly-trained paramedics. Plaintiffs repeatedly rely upon Fonville v. New York City Health and Hospitals Corporation, 300 AD2d 623 (2d Dept. 2002), with regard to both the proprietary/governmental and a purported nonfeasance/misfeasance dichotomy (discussed further, infra) . To the extent that the New York City Health and Hospitals Corporation's ("HHC") concession in Fonville, heard and decided a decade ago, is inconsistent with the City's position in this case (but see infra at 20), the City's considered view, as asserted herein, is that such concession was made in legal error and is not binding here. Moreover, that concession involved an issue of law, not a factual matter, see Department of Personnel AD2d 5 (1st Dept. 1983) v. Ci ty Civil Service Commission, 94 (collateral estoppel not applicable to 11 issues of law), and was made by HHC, a different entity from the City. Cf. Scantlebury v. New York City Health and Hospitals Corporation, 4 NY3d 606 (2005) (City and HHC are separate legal entities); see Juan C. v Cortines, 89 NY2d 659 (1997) (defendant New York City Board of Education, represented by Office of the Corporation Counsel on appeal the City's from an administrative finding, not estopped by Family Court's suppression of weapon in related juvenile delinquency proceeding commenced by Corporation Counsel) . Finally, precluding the City, an entity separate and independent from HHC, from taking a different legal position in this and any future similar case would amount to judicial estoppel, which cannot appropriately be applied under the circumstances at bar. See, ~, Public Improvements v. Board of Education of the City of New York, 56 NY2d 850 (1982) (Board of Education not estopped from asserting notice of claim limitations defense against contractor, notwithstanding 40 years' acquiescence in contractors' noncompliance); Anonymous v. Anonymous, 137 AD2d 739, 741 (2d Dept. 1988) ("Generally, judicial estoppel, also known as estoppel against inconsistent positions, will be applied where a party to an action has secured a judgment in his or her favor by adopting a certain position and then has sought to assume a contrary position in another action simply because his interests have changed. .a 12 litigant 'should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise'".) (citations omitted). Indeed, the position conceded in Fonville, that special duty analysis did not apply after EMS arrived at the location of the person in distress, had the opposite effect from securing a favorable outcome for the municipal entity. Rather than obtaining a judgment in favor of the defendant in that case, HHC, which then operated emergency medical services in New York City, Fonville. the concession left HHC open to liability in Consequently, that portion of the determination of the Appellate Division that the allegations herein implicate governmental functions should be affirmed. That part of the Appellate Division rUling that found a viable cause of action should be reversed because plaintiffs failed to, and cannot, allege a viable special duty allegation. 13 POINT II PLAINTIFFS' ARGUMENT THAT THE DEFENDANTS' PURPORTED FAILURES CONSTITUTE "MISFEASANCE" BECAUSE THEY OCCURRED AFTER EMTS ARRIVED AT THE APPLEWHITE HOME, THEREBY NULLIFYING THE PUBLIC DUTY RULE, WAS NECESSARILY REJECTED BY THIS COURT IN PELAEZ, KOVIT, AND LAZAN. Plaintiffs alternatively contend, as a theoretical basis for their position that the special duty doctrine is inapplicable, that the allegations in this case sound in "misfeasance," thereby nullifying the public duty bar to suits in the absence of a special relationship (Brief of Plaintiffs- Respondents at p. 36). Plaintiffs assert that "[t] here is no need for a special duty in cases of misfeasance because the void left by the initial absence of a duty of care is filled by the defendant's undertaking of action and the concomitant obligation to proceed wi th due care in so doing" (id.). This assertion cannot, however, be squared with this Court's recent municipal jurisprudence. First, the Valdez decision expressly holds that there are no "exceptions" to the initial public duty bar in governmental function cases. In that regard, it is immaterial whether a governmental act was ministerial or discretionary, affirmatively or passively negligent, internal agency rules and regulations. 14 or in violation of Second, in Pelaez v. Seide, 2 NY3d 186 (2004), this Court set forth the three avenues that form the only bases upon which a viable claim can be asserted against a municipal entity for the negligent performance of a governmental function, which this Court defined under the broad umbrella of "special duty./1 The first, violation of a statutory duty, is not alleged herein; the second, voluntary assumption of a duty via the four prongs set forth in Cuffy v. City of New York, 69 NY2d 255 (1987), was applied by the Appellate Division and will be discussed below. The Pelaez Court labeled the third avenue as "positive direction and control, /I and further explained that "a special relationship may be formed when a municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation./1 2 NY3d at 203. Such circumstances had been fulfilled, the Court stated, in Smullen v. City of New York, 28 NY2d 66 (1971), where a City inspector in control of a construction site and with the power to stop work assured a worker of the safety of a trench which the worker then entered, only to be killed when the trench collapsed. The actions of the municipal employees whose conduct was at issue in Pelaez, the Court held, "cannot be equated with the actions of the city official in Smullen./1 rd. at 204. Significantly, the Pelaez plaintiffs had proffered, and this Court necessarily rejected, 15 essentially the same argument plaintiffs herein are advancing. In their reply brief, the Pelaez plaintiffs asserted (referring to Susan Ortiz, the Putnam-County-employed nurse who had visited the Pelaez home and provided advice to the plaintiff mother): "Ms. Ortiz's conduct similarly constitutes misfeasance and is even more incomprehensible, given that she is a Registered Nurse Thus, Ms. Ortiz failed on March 29, 1995, in violation of Childhood Lead Poisoning Prevention protocols," to refer the Pelaez children for complete medical assessments and timely lead testing. (Pelaez, Reply Brief for Appellant-Petitioner, p. 39.) Plaintiffs' contention herein that once the EMTs "alighted from the ambulance" (Brief of Plaintiffs-Respondents at p. 40), proceeded to the Applewhite home and interacted with the infant plaintiff, their failure to follow protocol and act with due care constituted "misfeasance" is legally indistinguishable from the Pelaez plaintiffs' claim that Nurse Ortiz committed "misfeasance" when she failed to provide proper advice during her interaction with the children in the Pelaez home. Plaintiffs in Kovit v. Hallums and Lazan v. County of Suffolk, 4 NY3d 499, motion for rearg. den., 5 NY3d 783 (2005) advanced a similar argument in this Court been adopted by the Appellate Division which argument had that the police officers whose conduct was at issue had committed "misfeasance," thereby removing the cases from an immunity or duty analysis. 16 In Kovit, when a police officer securing an accident scene gruffly told a woman to move her vehicle, she put the vehicle in reverse and pinned the plaintiff between her car and the car behind it. In Lazan, a State trooper directed an individual to move his vehicle off the shoulder of the road, even though he told the trooper that he felt dizzy. While moving the car, the driver suffered a heart attack and crashed into a tree. The Kovit plaintiff attempted to convince this Court, citing Pelaez, that the officer "took 'positive direction and control' of the situation and negligently set in motion a force which directly caused harm to the plaintiff, hence liability is based upon a££irmative misfeasance rather than nonfeasance" (Kovit, Initial Brief of Appellee-Respondent, p. 14) (emphasis in original) . See also Lazan (Initial Brief of Appellee- Respondent, p. 7): "The conduct of Officer McNaughton was misfeasance. Officer McNaughton breached his duty to act with due care in directing respondent, Norman Lazan, to move his vehicle off the roadway despite Mr. Lazan advising the officer that he was feeling dizzy and faint and not well enough to drive." This Court held that neither plaintiff was able to prove a special relationship via the Cuffy prongs, implicitly declining to accept the proposition that the officers' conduct constituted "positive direction and control" as defined in Pelaez. In fact, the actions of the Kovi t and Lazan police 17 officers explici tly instructing that vehicles be moved constitutes a far more "affirmative" act than anything the EMTs did or said herein. Further, in Valdez v. City of New York, supra, the police officer to whom the plaintiff reported her estranged boyfriend's threat to kill her, and who allegedly told the plaintiff that her boyfriend was going to be arrested and instructed her to return to her apartment, was not deemed to have taken affirmative action so as to trigger a duty. The same recommendations (2009) . Nor in McLean v. Ci ty of New does the physical presence day-care in 194 EMTs NY3d of EMS's provided York, 12 whoemployeeCitytheoftrueis plaintiffs' home provide the critical element to establish "misfeasance" in the form of posi tive direction and control, as plaintiffs suggest (Brief of Plaintiffs-Respondents at p. 54). See, ~, Pelaez v. Seide, supra, (no special duty found where multiple inspectors, public health nurse and others made several visits to the plaintiffs' homes for the purposes of inspection and evaluation) . While plaintiffs rely on Parvi v. City of Kingston, 41 NY2d 553 (1977) in support of their assertion that misfeasance by a governmental actor requires no proof of special duty as a basis for liability (Brief of Plaintiffs-Respondents at 36), they disregard the fact, as discussed above, that the Court of 18 Appeals has expressly held in its recent jurisprudence that a special duty must be alleged for liability to be imposed on governmental actors performing governmental functions. Further, in Parvi, the police officers unquestionably took custody of the intoxicated plaintiff and placed him in a blatantly dangerous position by picking him up in downtown Kingston, driving to a spot next to the New York Thruway, and letting him out of the police car there. Those facts entirely distinguish Parvi from 4 the facts presented here, because they arguably fall within the special duty avenue articulated by this Court in Pelaez as positive direction and control. 4 Plaintiffs misrepresent the City's position before the Appellate Division by maintaining that the City "conceded" that "acts of misfeasance may render the special duty doctrine inapplicable" (Brief of Plaintiffs-Respondents at p. 35). In fact, the City's brief explicitly defined the term "misfeasance" in the context of allegations that affirmative action by a municipal employee directly placed a person in a more dangerous position than if the employee had not acted at all, akin to the In addition, two other cases cited by plaintiffs are plainly inapposite and have no bearing on the instant matter. O'Grady v. City of Fulton, 4 NY2d 717 (1958), and Dunham v. Village of Canisteo, 303 NY 498 (1952), both involve circumstances in which individuals were taken into police custody, which admittedly triggers a duty of care. See, ~., Mays v. City of Middletown, 70 AD3d 900 (2d Dept. 2010). 19 actions of the police officers in Parvi. Significantly, plaintiffs herein do'not, and cannot, claim that the actions of the EMTs affirmatively worsened the infant plaintiff's condition, as all of their allegations relate to purported omissions, not actions: the failure to bring oxygen to the apartment, the failure to timely transport, and the failure to timely call for an ALS ambulance. The only possible "affirmative act" occurred when one of the EMTs, along with Nurse Russo, performed two-person CPR on the infant plaintiff which is not alleged to have had a detrimental effect and, in fact, likely improved the resusci tative efforts. It is this crucial distinction between those circumstances in which governmental employees merely interact with individuals, even if negligently, and those in which the governmental employee's actions are the actual mechanism by which a party is placed into danger, that plaintiffs overlook. This distinction can be discerned in the context of the four Appellate Division, Second Department decisions involving on-scene EMS care that were addressed by the City in the Appellate Division. While plaintiffs also discuss these four cases (Brief of Plaintiffs-Respondents at 33), they fail to acknowledge the fundamental factual distinctions among them. Plaintiffs contend that two of these cases -- Kowal v. Deer Park Fire Dist., 13 AD3d 489 (2d Dept. 2004), and Fonville v. New 20 York City Health and Hospitals Corp., supra support their assertion that no proof of a special duty is required herein. In each of those cases, however, the injured party was directly placed in a more dangerous position by EMS's affirmative actions: intubation into the esophagus in Kowal and administration of contraindicated medication in Fonville. Moreover, plaintiffs misread the holding in a third such case, Joline v. City of New York, 32 AD3d 492 (2d Dept. 2006). By concluding that the City "failed to make a prima facie case for jUdgment as a matter of law establishing that a special relationship did not exist," 32 AD3d at 494, the Joline court implicitly accepted the proposition that proof of a special duty was necessary notwithstanding EMS's on- scene interaction with the decedent. Finally, plaintiffs concede that the court required a special duty in the fourth case, Apostolakis v. Centereach Fire District, 300 AD2d 516 (2d Dept. 2002). Therefore, the holdings in these four "misfeasance," cases for are consistent purposes of wi th the proposition that establishing a special relationship under the positive-direction-and-control-into- danger avenue of special duty, is defined as municipal action that directly and affirmatively asserts control over an individual and then places the assisted party in danger. Accordingly, the City's position before the Appellate Division 21 was simply an acknowledgement that a special duty might be established by scenarios such as those presented in Kowal and Fonville, and, likewise, in cases where, for example, an EMS crew causes inj ury by dropping an individual from a stretcher, as well as in police shooting cases, or those arising out of motor vehicle accidents involving City drivers. The City contends that the rulings in Ohdan v. City of New York, 268 AD2d 86 (1st Dept. 2000), and Persaud v. City of New York, 267 AD2d 220 (2d Dept. 1999), upon which plaintiffs rely to argue that any affirmative act constitutes "misfeasance" and, as such, is actionable, as well as Ramos v. City of New York, 71 AD3d 1107 (2d Dept. 2010)5 are plainly in contravention of this Court's precedent in Valdez, McLean, Kovit and Lazan, as just discussed. 6 Accordingly, as plaintiffs have not alleged that any direct action of the EMTs affirmatively placed the infant plaintiff in blatant danger, their claims do not create a special duty under the affirmative-direction-and-control avenue as set forth by this Court in Pelaez. 5 Although Ramos was not cited by plaintiffs, the City brings it to the Court's attention because it is directly pertinent. 6 Indeed, both Ohdan and Persaud predated this Court's decision in Pelaez, Lazan, and Kovit. The City respectfully submits that, in light of this Court's decisions in those latter cases, the Appellate Division, Second Department incorrectly decided Ramos. 22 POINT III ASSUMING THAT PLAINTIFFS HAD PLED A SPECIAL DUTY, THE APPELLATE DIVISION ERRED IN FINDING THAT THE EMTS' RESPONSE TO THE PLAINTIFF MOTHER'S PURPORTED REQUEST THAT THEY IMMEDIATELY TRANSPORT HER DAUGHTER CONSTITUTED AN ASSURANCE OR GUARANTEE OF SAFETY AND THAT SHE ACTED IN JUSTIFIABLE AND DETRIMENTAL RELIANCE ON THAT RESPONSE. Assuming a special duty had been pled, plaintiffs cannot establish that the City assumed an affirmative duty through promises or actions or the necessary element of reliance. Therefore, the Appellate Division's holding that a special relationship was established should be reversed. As stated by this Court in Cuffy v. City of New York, 69 NY2d 255, 260 (1987), a special relationship is created by (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was inj ured: (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) that party's justifiable reliance on the municipality's affirmative undertaking. The Appellate Division erred in determining that the EMTs provided an assurance by their response when plaintiff mother asked why they had not immediately left for the hospital, 23 which was that they were awaiting an ALB unit. This was simply a statement of intention an intention that was actually carried out -- not a promise or assurance of a course of action that the employees did not execute. Furthermore, this statement cannot possibly be considered an assurance with respect to the EMTs' failure to bring oxygen to the apartment, as it offered no information whatsoever concerning the nature and extent of the EMTs' equipment. In short, this response does not constitute the kind of statement or promise with the requisite level of certainty required by Valdez, Dinardo v. City of New York, 13 NY3d 872 (2009), and McLean v. City of New York, supra. Moreover, as this Court has recognized, the injured party's reliance is as critical in establishing the existence of a special relationship as is the municipality's voluntary assumption of a duty to act. 7 Yearwood v. Town of Brighton, 64 NY2d 667 (1984). It is well settled that, when the reliance element is either not present at allor, if present, not causally related to the ultimate harm, a special duty claim has not been or cannot be proved. A plaintiff's failure to make a 7 Although plaintiffs assert that the City failed to preserve the argument that plaintiffs did not plead a special duty (Brief of Plaintiffs-Respondents at 43), this Court made clear in Valdez v. City of New York, supra, that, as a necessary element of a viable claim for negligent performance of a governmental function, a plaintiff must both plead and prove a special duty. Failure to plead a special duty thus constitutes a failure to state a claim. 24 competent evidentiary showing on the element of justifiable reliance will support an award of summary judgment in favor of the municipality even when the first three Cuffy elements have been satisfied as a matter of law. Grieshaber v. City of Albany, 279 AD2d 232, 235 (3d Dept.), Iv. denied, 96 NY2d 719 (2001) . In response to defendants' motion for summary judgment, plaintiffs offered no facts regarding an alternative method of transport other than by EMS, a necessary showing for a finding of detrimental reliance. In their brief to this Court, plaintiffs tacitly acknowledge this failure, stating, instead, that the City did not meet its burden because it was required to affirmatively show that plaintiffs had no other means of getting to the hospital (Brief of Plaintiffs-Respondents at 45). First, plaintiffs fail to acknowledge this Court's clear holding in Valdez that the burden is on plaintiff to allege sufficient facts to establish justifiable reliance. Second, this contention is both illogical and inconsistent with case law, as it essentially requires the City to prove a negative by ruling out all potential alternatives where plaintiffs have made no initial allegation of reliance, as required. In any event, the City sUfficiently met its burden to prove that reasonable reliance could not be established by 25 demons trat ing , wi th support f rom a medical af firmat ion (47) 8 , that the infant plaintiff could not possibly have been transported to the hospital in the short window of time available before brain damage, even by her own expert's admission (259), would have occurred. Moreover, any potential transportation alternatives would not have allowed for the performance of continuous resuscitation. In the absence of any record evidence of viable alternatives, plaintiffs can only cite to the Appellate Division's erroneous and unexplained finding of reliance and then state, "In other words, from the moment they arrived, the EMTs were in control 9 and in charge of Tiffany's care. Ms. Applewhite and Tiffany were justifiably relying on them to do what was right for her well-being" (Brief of Plaintiffs- Respondents at 54). Their wish that the EMTs would -- or were able to do "what was right," however, bears no relevance to whether they justifiably and detrimentally relied as defined by case law. In Bawa v. City of New York, 94 AD3d 926, 928 (2d Dept. 2012), the Appellate Division, Second Department, reversed 8 Unless otherwise indicated, numbers in parentheses refer to pages of the Record on Appeal. word "control," in this context, is suggestive of the "positive direction and control," discussed infra. the facts at bar are not remotely similar to those in supra. 9 The Pelaez However, Smullen, 26 the lower court's denial of summary judgment to the City where the NYPD was alleged to have negligently failed to arrest a woman's son following numerous domestic incidents, as well as to promptly respond to a final 911 call after which the son killed her. The court observed, in holding that the decedent had not justifiably relied, "To be sure, when the decedent placed her 911 calIon April 18, 2007, she undoubtedly hoped that the police would arrive quickly and prevent injury to herself at the hands of her son." Such "hope" was insufficient as a matter of law, as it is herein, to constitute reliance. Plaintiffs have, therefore, failed to state a viable claim against the City for negligent performance of a governmental function because they failed to allege a special duty in their pleadings and, in any event, they have failed as a matter of law to allege facts that could establish a special duty. For all of the above reasons, as well as the reasons set forth in the City's main brief, the decision and order of the Appellate Division, First Department should be reversed, and the complaint should, accordingly, be dismissed. 27 CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, AND THE COMPLAINT DISMISSED, WITH COSTS. Respectfully submitted, MICHAEL A. CARDOZO, Corporation Counsel of The City of New York, Attorney for Defendants-Appellants FAY LEOUSSIS, AMY G. LONDON, EDWARD F.X. HART, DRAKE A. COLLEY, of Counsel. By: 28 dt