Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.Jan 7, 2013COURT OF APPEALS STATE OF NEW YORK To be argued by DRAKE A. COLLEY ( 15 Minutes) TIFFANY APPLEWHITE, an infant under of 14 years, by her mother and guardian, SAMANTHA APPLEWHITE, and the age natural SAMANTHA APPLEWHITE, individually, Plaintiffs-Respondents, -against- ACCUHEALTH, INC. and LINDA RUSSO, R.N., Defendants, -and- EMERGENCY MEDICAL SERVICE and THE CITY OF NEW YORK, FAY LEOUSSIS, AMY G. LONDON, MARGARET G. KING, EDWARD F.X. HART, DRAKE A. COLLEY, of Counsel. May 17, 2012 Defendants-Appellants. APPELLANTS' BRIEF MlCHAEL 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. Bronx County Index No. 22234/1998 REPRODUCED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................... iii PRELIMINARY STATEMENT .......................................... 1 CERTIFIED QUESTION PRESENTED FOR APPEAL ........................ 4 JURISDICTIONAL STATEMENT ....................................... 4 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 PROCEDURAL HISTORY ............................................. 7 DECISION AND ORDER OF THE APPELLATE DIVISION .................. 24 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 POINT I THE APPELLATE DIVISION CORRECTLY RULED THAT PLAINTIFF'S CLAIM THAT EMS SHOULD IMMEDIATELY HAVE TRANSPORTED HER DAUGHTER TO THE HOSPITAL IMPLICATED A GOVERNMENTAL FUNCTION, BUT ERRED IN ASSUMING A SPECIAL DUTY PLEADING WHERE PLAINTIFF PLAINLY NEVER ALLEGED ONE ............ 27 POINT II ASSUMING PLAINTIFF HAD PLED A SPECIAL DUTY, THE APPELLATE DIVISION ERRED IN FINDING THAT THE EMTS' RESPONSE TO PLAINTIFF'S REQUEST THAT THEY IMMEDIATELY TRANSPORT HER DAUGHTER CONSTITUTED AN ASSURANCE OR GUARANTEE OF SAFETY AND THAT PLAINTIFF ACTED IN JUSTIFIABLE RELIANCE ON THAT RESPONSE .......... 29 i A. The EMTs' Response to Plaintiff's Request Did Not Constitute an Assurance Or Guarantee Of Her Daughter's Safety .......... 30 B. The City Established That No Justifiable Reliance On The EMTs' Statement Can be Proven ........................ 31 CONCLUSION .................................................... 38 ii TABLE OF AUTHORITIES CASES Badillo v. City of New York, 35 AD3d 307 (1st Dept. 2006) ................................ 33 Clark v. Town of Ticonderoga, 291 AD2d 597 (3d Dept,), app. den., 98 NY2d 604 (2002) ...... 33 Cuffy v. City of New York, 69 NY2d 255 (1987) .................................. 27, 31, 32 Dinardo v. City of New York, 13 NY3d 872 (2009) ...................................... 30, 36 Dixon v. Village of Spring Valley, 50 AD3d 943 (2d Dept. 2008) ................................. 35 Grieshaber v. City of Albany, 279 AD2d 232 (3d Dept. 2000), app. den., 96 NY2d 719 (2001) ...................................................... 33 Kircher v. City of Jamestown, 74 NY2d 251 (1989) .......................................... 32 Kovit v. Estate of Hallums, 4 NY3d 499 (2005) ........................................... 27 Laratro v. City of New York, 8 NY3d 79 (2006) ........................................ 28, 32 Lauer v. City of New York, 95 NY2d 95 (2000) ........................................... 32 McLean v. City of New York, 12 NY3d 194 (2009) ....................................... 4, 27 Merced v. City of New York, 75 NY2d 798 (1990) ...................................... 33, 34 Mollerson v. City of New York, 8 AD3d 70 (1st Dept. 2004) .................................. 32 iii Pelaez v. Seide, 2 NY3d 186 (2004) ........................................... 27 Silver v. City of New York, 281 AD2d 233 (1st Dept. 2001) ....................... 28, 32, 33 Valdez v. City of New York, 18 NY3d 69 (2011) ............................. 3, 4, 27, 29, 31 STATUTES CPLR § 5713 .................................................... 4 iv 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' BRIEF PRELIMINARY STATEMENT In this personal injury matter, the City of New York ("City"), also sued herein as Emergency Medical Services, a non- suable entity, moved for summary judgment to dismiss the claims of plaintiff-respondent Samantha Applewhite, suing on behalf of her daughter, Tiffany Applewhite ("Tiffany"), and individually. Plaintiff's claim arose out of what she alleged was the City's negligent provision of emergency medical services in response to her "911" call after Tiffany suffered a severe anaphylactic reaction when she was administered a steroid by a private nurse. granted appealed. After Supreme Court, Bronx County (McKeon, J.), the City's motion for summary judgment, plaintiff The Appellate Division, First Judicial Department, in a decision and order dated and entered December 15, 2011 ("order"), unanimously reversed the grant of summary judgment on the law, denied the City's motion, and reinstated the complaint against it. The First Department thereafter granted the City leave to appeal from its order. The City argues on appeal, first, that plaintiff failed to state a claim, as she did not allege that the City assumed or breached a special duty. Next, assuming arguendo a sufficient special duty allegation, the City was entitled to summary judgment as the proof submitted on the motion, taken in the light most favorable to plaintiff, cannot support a special duty as a matter of law. In the order appealed, the Appellate Division correctly determined that plaintiff's allegation that EMS failed to promptly transport her daughter from her home to the hospital implicated a governmental function. However, the court completely ignored the fact that plaintiff did not allege a special duty and, therefore, failed to state a claim against the City. Instead, the court searched the record, and found that the City assumed a special duty to Tiffany when the EMTs responded to plaintiff's request that her daughter, then in -2- cardiac arrest, be immediately transported to the hospital by stating that they were awaiting the arrival of an advanced life support ambulance. The Appellate Division erroneously deemed the EMTs' response an "assurance," or guarantee of Tiffany's safety. The Appellate Division further erred in holding that plaintiff justifiably relied on the EMTs' response, notwithstanding the absence of evidence that she forewent another viable means of obtaining transport for her daughter. 1 The Appellate Division also evinced confusion regarding the analytical dichotomies clearly laid out by this Court in Valdez v. City of New York, 18 NY3d 69 (2011). On page 3' the Order incorrectly juxtaposed proprietary with discretionary acts, and in footnote 1, it incorrectly juxtaposed proprietary with ministerial functions. The correct analysis under Valdez, decided after the appeal to the Appellate Division was briefed but before it was decided, requires, first, a determination whether the challenged actions constituted a proprietary or a governmental function. If the latter, as the Appellate Division did correctly find was presented, the next 1 The City takes issue with the Appellate Division's suggestion, in dicta, that where EMS's challenged acts or omissions involve "treatment," the implicated function is more similar to the proprietary act of a medical provider caring for a patient than to the act or omission of a governmental entity providing an emergency service. As the Court correctly found that medical treatment was not in question here, however, such issue need not be addressed on this appeal. -3- question to be addressed in assessing whether a viable tort claim has been asserted is whether a special or particular duty of care was pled and/or proved by virtue of (1) a voluntary assumption of duty; (2) affirmative direction into a blatant hazard; or (3) a private right of action. In finding a viable claim under the first of those avenues to assert a special duty, the Appellate Division failed to properly apply Valdez's analysis, as well as that of McLean v. City of New York, 12 NY3d 194 (2009) , on the issues of both assumption of duty and reliance. CERTIFIED QUESTION PRESENTED FOR APPEAL Pursuant to CPLR § 5713, the Appellate Division, First Judicial Department certified the following for appeal: "Was the order the order of made?" (A6). 2 of this Court, which reversed the Supreme Court, properly JURISDICTIONAL STATEMENT The City appeals pursuant to an order of the Appellate Division, entered March 20, 2012, granting leave to appeal to the Court of Appeals pursuant to CPLR 5602 (b) 1. 2 Unless otherwise indicated, numbers in parentheses refer to pages in the Record on Appeal. -4- STATEMENT OF FACTS The facts that bear on the issues on appeal are largely undisputed, and are taken here in the light most favorable to plaintiff, the non-movant, as required. On the morning of February 21, 1998, Tiffany Applewhite, plaintiff's daughter, who was then twelve years old, was being administered intravenous medication in her home by a visiting nurse, defendant Linda Russo, R.N. ("Nurse Russo"), an employee of defendant Accuhealth, Inc. (192). 3 The medication, Solu-Medrol, a steroid, was being administered because Tiffany suffered from uveitis, an eye condition (174). During administration of the medication, Tiffany experienced shortness of breath. It appears that she had an unanticipated anaphylactic reaction to the steroid (55, 76). 4 Nurse Russo began to perform cardiopulmonary resuscitation ("CPR") on Tiffany, and at Nurse Russo's request, plaintiff, called 911 to request emergency medical services at 11: 14 a.m. 3 Nurse Russo is no longer against her by settlement. bankrupt ( 17) . a defendant, having resolved the case Accuhealth and its insurer both went 4 An allergic reaction is an inappropriate reaction to a stimulus. An anaphylactic reaction is essentially the same thing although, for unknown reasons, the latter reaction does not occur on the first exposure to the stimulus but rather only after several exposures (55). -5- 106, 211). At 11:20 a.m., Nurse Russo determined that Tiffany was in cardiac arrest (111, 193). At 11:16 a.m., in response to plaintiff's 911 call, Emergency Medical Services ("EMS") , which is operated by the Fire Department of the City of New York ( "FDNY"), dispatched an FDNY basic life support ( "BLS") ambulance, staffed by emergency medical technicians ( "EMTs") . No advanced life support ( "ALS") ambulance was available at the time of the mother's call (49-50; 211-213). The EMTs arrived at the plaintiff's building at 11:20 and, one minute later, reached the apartment and found Tiffany in cardiac arrest (158-159; 213). At that point, one of the EMTs went downstairs to contact the dispatcher to send an ALS unit, as well as to retrieve a stretcher, oxygen, and other equipment (128-129). An ALS ambulance is staffed by paramedics, who, unlike EMTs, are trained, certified, and equipped to inject medicine and intubate patients (56) . The second EMT from the BLS unit joined Nurse Russo in performing CPR (7-8, 16). At 11:28 a.m., an ALS ambulance, operated by nonparty Our Lady of Mercy Hospital, was dispatched by EMS and arrived at plaintiff's apartment approximately two minutes later. (163, 215) . Upon their arrival at plaintiff's apartment, the paramedics from the ALS ambulance intubated Tiffany and gave her two medications that brought her heart into pulseless electrical activity ("PEA") (220). The EMTs and paramedics then took -6- Tiffany to the closest hospital, Montefiore Medical Center, where she received further treatment. Although she survived, she suffered brain damage, is confined to a wheelchair and is unable to speak (91). PROCEDURAL HISTORY A. The Pleadings Plaintiff's summons and complaint alleged various negligent acts and omissions by EMS, but did not allege that the City had assumed a special duty to Tiffany or plaintiff or facts from which a special duty could be established (62-68). Neither the bill of particulars nor the supplemental bill of particulars alleged a special duty (84-92). In sum, none of plaintiff's pleadings alleged a special duty or a factual predicate for such a duty. No claim was made in any pleading filed that plaintiff acted in reliance on an assurance by the EMTs or even that the EMTs made any such assurance. B. The City's Motion For Summary Judgment At the conclusion of discovery and after plaintiff filed a note of issue, the City moved, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint as against the City (13-45) . In support of its motion, the City -7- set forth, and supported by documentary evidence, the time line cited in the Statement of Facts (22-23; 211-217). Based on the admissible evidence presented in support of its motion, the City asserted that plaintiff had no viable claim against it because its provision of emergency medical services is a governmental function, requiring plaintiff to allege and prove a special duty as a premise for her tort action regarding that function, and no "special duty" had been alleged, nor could it be proved. As a matter of law, because no proof showed that the City owed a special duty to plaintiff or her daughter, the City could not, even if negligent, be found liable ( 17) . The City asserted that, because it owed no special duty, the Supreme Court's legal analysis need proceed no further. Specifically, the City noted that even assuming, arguendo, that it provided an assurance to dispatch an ambulance in a timely fashion, it acted in accordance with that assurance by promptly sending a BLS unit that, in light of Tiffany's ( 29) . Further, the City argued condition, as explained by its expert affirmation, there could have been no viable alternative means to obtaining assistance that plaintiff forewent and, thus, she could not show detrimental reliance (34-35). In addition, the City argued that, insofar as plaintiff contended that the City failed to intubate Tiffany, her allegation essentially equated to a claim that it should -8- initially have sent an ALS rather than a BLS ambulance, as only ALS ambulance personnel can perform intubations. This claim, the City asserted, could not provide a basis for City liability, as determining the allocation of resources at any point in time requires the exercise of discretion, for which exercise the City is immune (35-41). Finally, the City argued that no legitimate question of fact existed to submit to a jury on proximate cause, because, regardless of what treatment the EMTs rendered, Tiffany still would have suffered profound brain damage (42-43). In support of its contentions, the City submitted the expert affirmation of Anthony Mustalish, M.D., an emergency medicine physician (46-61) . Based upon his review of the relevant EMS documents, Dr. Mustalish opined with a reasonable degree of medical certainty that Tiffany went into anaphylactic shock secondary to an intravenous infusion of the steroid Solu- Medrol. This state of shock caused a cessation of her breathing and heartbeat . Dr. Mustalish explained that anaphylactic shock is a life-threatening emergency that can lead to respiratory failure, respiratory arrest, cardiac arrest, brain damage and death. He opined that brain damage occurs within three to five minutes of cardiac arrest, even if CPR is administered (47). Based on his review of the pertinent EMS printouts, Dr. Mustalish noted that the times when plaintiff's 911 call was -9- received and the BLS ambulance dispatched, as well as all other EMS events, were recorded in a computer and thus precisely documented (48) . He further noted that the facts established by Nurse Russo's testimony regarding the events prior to EMS's arrival were not disputed. About three to five seconds after her infusion of Solu-Medrol began, Tiffany told her mother that she could not breathe; Nurse Russo then stopped the infusion of Solu-Medrol and told plaintiff to call 911 (48) . Tiffany was losing consciousness and had a seizure. Three minutes after she complained of inability to breathe, she was in full respiratory arrest, meaning that she had stopped breathing (48). Two minutes later, Tiffany was in full cardiopulmonary arrest, so that not only had she stopped breathing, but her heart was not pumping blood (48-49). Nurse Russo performed one-person CPR until the BLS ambulance arrived, and two-person CPR was then commenced. At that point, Tiffany had no vital signs (49, 219). Dr. Mustalish noted that the EMS computer printout ("CAD") indicated that the first 911 call was received at 11: 14 a.m. and classified by the call-receiving operator ("CRO") as a "DIFFER, " meaning a "difficulty breathing" call type (4 9, 211) . The tape recording of the call indicated that plaintiff said that her daughter could not breathe. In answer to the CRO' s question, plaintiff replied that her daughter was awake but was -10- having something like an asthma. attack and could not breathe well (49, 211) . Dr. Mustalish stated that, while typically an ALS ambulance would be assigned to a "difficulty breathing" call if available (49), the computer indicated, at 11:16 a.m., that no ALS ambulance was available (49, 211). The closest BLS unit was unit 15B2, with an estimated travel time of two minutes. This unit was assigned and dispatched to plaintiff's location (49-50; 211-213). Unit 15B2 arrived at the building at 11:20 a.m., according to the CAD report (50, 213). Plaintiff called 911 a second time at 11: 21 a.m. to say that her daughter was unconscious and that she could hear the ambulance arriving (50). The BLS unit's ambulance call report ("ACR") indicates that the BLS unit arrived at 11:20 a.m. and took vital signs at 11:21 a.m. (50, 218). At 11:28 a.m., following a call by the EMT to the dispatcher reporting that an advanced life support ambulance was needed, an ALS unit was assigned (50, 213). The paramedics got to the building at 11:30 a.m. After they arrived at the apartment, they gave Tiffany medication and placed chest leads to record her cardiac activity; some heart activity was observed at 11:45 a.m. (50-51; 219-220). She was transported to Montefiore Medical Center at approximately 12:00 p.m. (51, 215). -11- In support of the alternate dismissal ground of lack of proximate cause, Dr. Mustalish opined that, by the time the EMTs arrived at plaintiff's apartment, Tiffany had already suffered profound brain damage. Therefore, nothing that the EMTs did or failed to do was a cause of her injuries. Mustalish opined: It is my opinion with a reasonable degree of medical certainty, based on 29 years of experience in emergency medicine, that profound brain damage or death occurs within three to five minutes of cardiac arrest even when the patient is receiving CPR. Thus it is my opinion, with a reasonable degree of medical certainty, that at the time the EMTs arrived, this patient, if she were to survive, already was going to be left with profound brain damage. Nothing the EMTs did caused or contributed to the patient's injuries and nothing they could have done would have prevented these injuries. Lt. Dolce arrived after them and the same is true for him. Although as a general matter 100 percent oxygen by ambu-bag is better than mouth-to- mouth resuscitation with room air, the difference is not substantial. Here, when the EMTs arrived, the patient had been in respiratory arrest and receiving mouth-to- mouth resuscitation, and then respiratory arrest and receiving CPR, according to Nurse Russo, for five minutes. Then she went into cardiac arrest and for some number of minutes received one-person CPR, which includes mouth-to-mouth resuscitation. For the next approximately ten minutes or more, she received two-person CPR and was then intubated and ambu-bagged on 100 percent oxygen. Even if serious brain damage had not already occurred by the time the EMTs arrived, the difference between receiving -12- As Dr. one-person CPR, and receiving two-person CPR with ambu-bagging, in the ten minutes or more after the EMTs arrived and before the patient was intubated, would have been insignificant (53-59). C. Plaintiff's Opposition to the City's Motion In opposition to the City's motion for summary judgment, plaintiff asserted that her claim was not that an ALS ambulance should have been sent initially, explaining that this claim had been made by prior counsel (250-251). Rather, her allegations focused on the conduct of the BLS unit "after it arrived" (251) (emphasis in original). Specifically, plaintiff alleged three "failures" on the EMTs' part: (1) the failure to oxygenate Tiffany until the ALS unit arrived, (2) the failure to immediately transport her to the hospital, and (3) the failure to call immediately for an ALS unit when they realized the gravity of Tiffany's condition (251). Plaintiff did not contend that the City's interaction with her created a special relationship. Rather, she asserted that the mere arrival of the EMTs created a duty. "Having undertaken the obligation of ministering to the infant plaintiff," it was argued, "the EMTS . owed the Plaintiff, Tiffany Applewhite and her mother, Samantha Applewhite, the duty to provide such treatment with due care . " (251). Because the EMTs undertook to treat Tiffany, -13- plaintiff contended, the doctrine of "sovereign immunity" was inapplicable (253). Plaintiff also submitted her own affidavit, stating, among other things, that the EMTs came into her apartment "empty handed" and that one of them assisted Nurse Russo in performing CPR (256) . No oxygen was brought into the apartment by the BLS crew, and it was only when the ALS crew arrived later that Tiffany was given oxygen (256-257) . Plaintiff further stated: When I called 911, I relied on EMTs who responded to my call to come fully prepared to provide proper emergency care, particularly since they knew by my 911 call that my daughter was in respiratory distress. Instead they came without the necessary equipment and appeared totally unfamiliar with my daughter's emergency, or what "treatment" to give. When I saw that all they were doing was CPR and nothing more, I asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at the time. (I knew that because I worked for Montefiore Hospital at that time.) They did not heed my advice. Instead they continued to administer CPR, telling me that they were waiting for the Paramedics from an Advanced Life Support Ambulance (ALS) . (256). Plaintiff's affidavit does not indicate that she or anyone other than the responding emergency medical personnel could have transported Tiffany to the hospital. No contention was made in the attorney's affirmation submitted in opposition to the City's motion that the EMTs' response to plaintiff's request for immediate transport constituted an assurance, or -14- that plaintiff acted in reliance on the statement about waiting for an ALS unit. Further supporting plaintiff's opposition was the affirmation of Michael Wajda, M.D., an anesthesiologist (258), who did not attest to expertise in the area of emergency medicine. He stated that, in a case of anoxic brain injury, such as that suffered by Tiffany, the longer the time period during which brain cells are deprived of oxygen, the more severe and irreversible the damage (259). He further stated that, at normal body temperatures, as was the case with Tiffany, complete clinical recovery is highly unlikely after five to seven minutes without oxygen (259) . He opined that had the EMTs administered oxygen as soon as they arrived and continued until the ALS unit responded, Tiffany "would have had a much better chance of brain recovery" (259) . D. The City's Reply In reply, the City noted the flaws in plaintiff's contention that the EMTs owed a tort duty, explaining that insofar as plaintiff charged the City with negligence in its performance of a governmental function, the special duty doctrine applied (339-340). The City also noted that plaintiff had failed to raise an issue of fact as to whether a special duty existed, because she had not demonstrated that she forewent -15- an alternative for obtaining emergency medical services in reliance upon EMS by, for example, showing that she had access to an oxygen tank or had a car available to take Tiffany to the hospital (336-339). Finally, the City asserted that Dr. Wajda made no showing of experience in the area of emergency medicine (348), pointing out numerous fallacies in his analysis (341- 351) . The City also submitted an expert reply affirmation from Dr. Mustalish (358-366). Having reviewed Dr. Wajda's affirmation, Dr. Mustalish noted Dr. Wajda's apparent lack of experience in emergency medicine, as well as that his affirmation did not indicate familiarity with the times contained in the CAD ( 3 59) . He also commented on Dr. Wajda's failure to address the minimal difference between the effects of 100% oxygen and room air in resuscitation efforts (360). E. The Decision and Order of Supreme Court On March 16, 2010, the Supreme Court (McKeon, J.S.C.) granted the City's motion for summary judgment, noting, among other things, that no special duty existed in this matter. Governmental agencies such as the Ambulance Services owe a duty to the public generally, and not individually . To demonstrate a special duty, the individual must show: (1) an assumption by the municipality, through promises or actions, of an affirmative duty -16- or act on behalf of the injured party; (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. Here, Plaintiff cannot establish the fourth requirement, justifiable reliance. In order to establish justifiable reliance, a Plaintiff must prove that he or she changed position, to his or her detriment, because of assurances given by the government. The person in need of assistance must have been put in a worse position because of the assurances given by the government's agents. Plaintiff has offered the affidavit of Tiffany's mother in which she stated that when she called 911 she relied on the EMTs to come fully prepared to provide proper emergency care, and that she asked them to "please take Tiffany to Montefiore right away because it was only a few minutes away from the house." This does not rise to the level of detrimental reliance. There is no indication that Tiffany's mother knew where another oxygen tank was or that she or somebody else had a car available in which they could have taken Tiffany to the hospital. As such, there is no showing that Plaintiff was deprived of assistance that reasonably could have been expected from another source because of the government's conduct or that, because of any promise on the municipality's part, Tiffany was put in a worse position that if the call had not been made. As Plaintiffs charge non feasance (sic) , (the failure to bring an oxygen tank and failure to immediately transport Tiffany to the hospital or delay in calling for an advance life support ambulance), the special duty doctrine applies. The mere arrival of and the commencement of treatment by municipal emergency responders does not -17- remove a case from the realm of the special duty doctrine. Even assuming that EMS was negligent and Plaintiff's suit is not barred by the special duty doctrine, the instant case would be dismissed as Plaintiff cannot show that any act or omission by the City was the proximate cause of the injuries. The City's Emergency Medical expert, Dr. Anthony Mustalish, opines that regardless of what treatment the EMTs rendered, Plaintiff would still have suffered profound brain damage. Dr. Mus tal ish opines that even if the EMTs had done exactly what Plaintiff claims they should have done, which is to prepare the plaintiff for transport to the hospital as soon as they realized they had no oxygen tank, profound brain damage or death had become certain. According to Dr. Mus tal ish, by the time the EMTs had arrived (about seven minutes after the plaintiff went into cardiac arrest) brain damage had occurred. Dr. Mustalish has established the City's entitlement to summary judgment by stating that profound brain damage was certain by the time the EMTs arrived. Dr. Wajda's affirmation in opposition is from a physician with no expertise in emergency medicine who never read Dr. Mustalish's affirmation. It is insufficient to raise a question of fact sufficient to defeat the motion. Defendants' motion for summary judgment and the dismissal of the complaint against them is granted. Defendants have shown that no special duty existed between them and Plaintiff and that no act or omission by them was a proximate cause of Plaintiff's injuries (citations omitted) (7-11). -18- F. The Parties' Arguments on Appeal 1. Plaintiff's Arguments On appeal, plaintiff advanced two arguments as to why no special relationship need be proven in the instant case: (1) once the EMTs arrived at plaintiff's residence and undertook to administer emergency aid, they assumed a duty to act with due care; and 2) plaintiff's allegations sound in misfeasance, to which the special duty doctrine does not apply, rather than in nonfeasance. Plaintiff argued that "when a call is placed to 911 by a citizen, who requests an ambulance, an ambulance must be sent" (Appellant's Brief at p. 16). Plaintiff asserted further that a duty attached as soon as the EMTs arrived and began attending to Tiffany, thus automatically establishing a tort duty once any municipal actor has singled out an individual citizen and interacted with him or her (Id. at p. 18). In addition to contending that the EMTs assumed a duty when they arrived on scene, plaintiff argued that this case is exempt from special duty analysis because the allegations made here are in the nature of misfeasance rather than nonfeasance (Id. at p. 18). Plaintiff asserted that the Supreme Court, after erroneously finding that plaintiff was required to demonstrate a special relationship, also incorrectly held that plaintiff was unable to establish detrimental reliance (Id. at p. 23). In -19- support, plaintiff contended that insofar as the EMTs were administering aid to Tiffany, it can be inferred that plaintiff justifiably relied on the EMTs' implied assurance that they were adequately treating her daughter until the paramedics arrived. Plaintiff argued that the EMTs did not advise her that there would be "a further delay" or tell her "how long it would be before the paramedics arrived," and that, consequently, she "made no effort to consider or seek alternative assistance." During that time, she claimed, she could have taken her daughter to the hospital by car or other means, rather than wait for the second ambulance to arrive. Plaintiffs also argued that the credibility of expert witnesses and the issues presented by conflicting opinions is for a jury to decide. 2. The City's Arguments In response, the City argued that the provision of emergency medical services is a governmental function, requiring proof of a special duty as a basis for liability. Consequently, where an alleged ministerial error results in a delayed response to a 911 call for emergency medical services, liability cannot give rise to a lawsuit in the absence of a special relationship. The City asserted that the mere act of calling 911 does not give rise to a duty on the part of the City, and that liability can -20- arise only when a City actor gives an assurance or makes a promise of assistance, and the injured party or a family member relies on that assurance to his or her detriment. Thus, the City noted, the Supreme Court correctly held that the mere arrival of and commencement of treatment by emergency medical responders does not remove a case from the realm of the special duty doctrine. The City also asserted that the same special duty analysis that governs ambulance assignment, dispatch and response is applicable to alleged failures to appropriately act at the response site, as such actions are equally governmental and emergency-related. Consequently, the "due care" with which a municipality must perform an assumed duty is defined in terms of whether its actions placed the assisted person in a worse position than that in which the person was found. In the instant case, Tiffany incontrovertibly was not placed in a worse position by the EMTs' arrival and, at most, the EMTs failed to provide optimal assistance. Plaintiffs did not show that the outcome would have been better had the EMTs never arrived on scene, joined Nurse Russo in performing CPR, summoned an ALS ambulance and assisted the ALS crew in transporting Tiffany to the hospital. The City asserted that it met its prima facie burden to show the absence of a basis for recovery under a special duty -21- theory, and that plaintiffs failed to raise a question of fact with regard to any issue, particularly detrimental reliance. To establish justifiable reliance, a plaintiff must prove that he or she changed position, to his or her detriment, because of assurances given or actions taken by the government. In the specific context of allegations that a municipality failed properly to respond to a 911 call for emergency assistance, a plaintiff must show that the governmental conduct deprived the injured party of assistance that reasonably could have been expected from another source. Consequently, it is essential for a plaintiff to demonstrate that he or she acted in reliance upon the municipality's promise of assistance, with the result that the plaintiff or other party in distress was put in a worse position than if the call had not been made by forgoing another viable alternative. The City noted that, here, plaintiff's assertion that she could have found other means to transport Tiffany to the hospital is without support in the record. With regard to plaintiff's assertion that the EMTs did not advise her that there would be "a further delay" or tell her "how long it would be before the paramedics arrived," and that, consequently, she "made no effort to consider or seek alternative assistance" the City asserted that even assuming, arguendo, that the EMTs' failure to so advise plaintiff could be equated to an assurance, such failure is immaterial with respect -22- to the detrimental reliance prong. Instead, the appropriate standard requires consideration of what reasonable alternatives actually existed at the critical time, and how plaintiff could reasonably have availed herself of such alternatives. A plaintiff must offer detailed and specific proof of assurance and reliance, and where, as here, plaintiff's proof consists only of inference and implication, that standard is not met. The City additionally argued that the Supreme Court's determination that plaintiff's medical expert was unqualified to render an opinion in the field of emergency medicine was correct. Even crediting plaintiff's expert with sufficient expertise in emergency medicine, the Supreme Court correctly held that the affirmation was insufficient to raise a question of fact sufficient to defeat the motion, as plaintiff's expert did not adequately counter the City's showing as to lack of proximate cause. -23- THE DECISION AND ORDER OF THE APPELLATE DIVISION, FIRST DEPARTMENT The Appellate Division, First Department, in a decision and order dated December 15, 2011, unanimously reversed the order of the Supreme Court on the law, noting, inter alia, that: As a threshold issue, we must determine the capacity in which the City was acting. When the City acts in a proprietary capacity, it is subject to the same principles of tort law as a private entity. By contrast, discretionary acts, such as the failure to issue a license, can never be a basis for damages. Similarly, public entities are not usually liable for claims arising out of the performance of a government function (ministerial acts). "A municipality is not liable to a person injured by the breach of a duty - like the duty to provide police protection, fire protection or ambulance service - that the municipality owes to the general public." However, liability for ministerial acts may arise where there exists a special relationship between the injured party and the public entity that creates a special duty of protection to the injured party . Under the facts of this case, defendant was acting in a ministerial capacity. Plaintiffs fault defendant for failing to bring oxygen to the apartment, for advising the mother that she should wait for the ALS ambulance and for waiting for the ALS ambulance that arrived 20 minutes later instead of taking the infant plaintiff to the hospital that was four minutes away. Absent are allegations that defendant provided medical treatment in an improper manner . -24- Here, the gravamen of plaintiffs' claim is that defendant should have transported the infant plaintiff to the hospital immediately rather than waiting an additional 20 minutes for the ALS ambulance to effectuate transport. This claim involves the quintessential purpose of the municipal ambulance system - transporting the patient to the hospital as quickly as possible. Thus, defendant's poor advice and failure to transport is much closer to the performance of a government function than to the proprietary act of a medical provider caring for a patient. Accordingly, defendant's actions were ministerial and the special relationship doctrine applies. Pursuant to that doctrine, dismissal of the complaint was improper because defendant assumed a special duty toward this plaintiff. The first element of a special relationship is the assumption of an affirmative duty to act. Here, the first ambulance to arrive at plaintiffs' home was a BLS ambulance, that did not have the necessary equipment to treat infant plaintiff. Despite her mother's request to take the child to the nearby hospital immediately, the EMTs allegedly assured the mother that it would be better for infant plaintiff to wait at the home until an ALS ambulance arrived with paramedics and proper equipment. Under these alleged circumstances, the assurances and advice of the emergency personnel constituted an assumption "through promises or actions, to act on behalf of [infant plaintiff]" for the purposes of determining a special relationship . . . The main point of contention centers around the fourth factor in the special relationship analysis justifiable reliance. Defendant contends that the mother could not have relied on anything they said or did. This misses the point. The record reflects that the mother asked -25- the EMS technicians to take her daughter to Montefiore Hospital, only four minutes away. The EMS technicians responded that it was preferable to wait for the ALS ambulance and continued to administer CPR. The EMS technicians made the decision not to transport the child immediately and to call for the ALS ambulance to effectuate transport. At no point did defendant communicate to the mother that the ALS ambulance would take another 20 minutes to arrive for the subsequent transport. The mother justifiably relied on the EMS technicians, who had taken control of the emergency situation, and who elected to await the arrival of the ALS ambulance (citations and footnote omitted), The instant appeal ensued upon the Appellate Division's grant of the City's motion for leave to appeal to the Court on a certified question. -26- ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY RULED THAT PLAINTIFF' S CLAIM THAT EMS SHOULD IMMEDIATELY HAVE TRANSPORTED HER DAUGHTER TO THE HOSPITAL IMPLICATED A GOVERNMENTAL FUNCTION, BUT ERRED IN ASSUMING A SPECIAL DUTY PLEADING WHERE PLAINTIFF PLAINLY NEVER ALLEGED ONE. Based upon this Court's recent ruling in Valdez, it is well established that, in providing uniquely governmental services, municipalities owe a duty to the public generally, not to any individual. This Court held that such public duties do not create tort duties of care. Accordingly, individuals are generally barred from suing for injuries sustained as a result of governmental entities' alleged negligent performance of governmental functions. As Valdez clarified, to establish a tort duty of care as needed to state a claim against a governmental entity performing a governmental function, a plaintiff must plead and prove a "special duty" running directly to him or her. Valdez v. City of New York, 18 NY3d 69 (2010); see generally McLean v. City of New York, 12 NY3d 194 (2009); Kovit v. Estate of Hallums, 4 NY3d 499, 506 (2005); Pelaez v. Seide, 2 NY3d 186 (2004); Cuffy v. City of New York, 69 NY2d 255 (1987). -27- This Court has already ruled that the assignment and dispatch of ambulances by a municipality is a governmental function. Laratro v. City of New York, 8 NY3d 79 (2006). As such, where it is alleged that a negligent error resulted in a delayed response to a 911 call for emergency medical services, no claim is stated unless the plaintiff has alleged and can offer proof of a special relationship. 8 NY3d at 83. See also Silver v. City of New York, 281 AD2d 233 (1st Dept. 2001). Plaintiff never alleged, in her pleadings or her opposition to the City's motion, that the City assumed a special duty. Nor did she assert that the EMTs' response to her request and "advice," as she called it, concerning immediate transport, constituted an assumption of a special duty. The Appellate Division erred in crafting special duty pleadings which plaintiff never articulated, claimed or argued. complaint should be dismissed. -28- Therefore, the POINT II ASSUMING PLAINTIFF HAD PLED A SPECIAL DUTY, THE APPELLATE DIVISION ERRED IN FINDING THAT THE EMTS' RESPONSE TO PLAINTIFF'S REQUEST THAT THEY IMMEDIATELY TRANSPORT HER DAUGHTER CONSTITUTED AN ASSURANCE OR GUARANTEE OF SAFETY AND THAT PLAINTIFF ACTED IN JUSTIFIABLE RESPONSE. RELIANCE ON THAT Assuming, arguendo, that plaintiff had pled a special duty and that the Court could consider the facts gleaned from depositions and affidavits, those facts fail to establish a special duty as a matter of law. The evidence that the Appellate Division held constituted the voluntary assumption of a special duty does not meet any test previously recognized by the Court. As this Court further clarified in Valdez, "the issue of whether a plaintiff offered sufficient evidence to establish a special relationship is a question of law for the court to resolve." 18 NY3d at 81. Viewed in the light most favorable to plaintiff, there is no dispute as to the Cuffy prongs of direct contact and knowledge that inaction could lead to harm, but the facts do not establish either assumption of duty or justifiable reliance as a matter of law. -29- A. The EMTs' Response to Plaintiff's Request Did Not Constitute an Assurance Or Guarantee Of Her Daughter's Safety. The EMTs' response to plaintiff's request that they immediately transport her daughter -- that they were awaiting the arrival of the paramedics -- bears none of the indicia of assurance of safety or definiteness required by this Court in Valdez, Dinardo v. City of New York, 13 NY3d 872 (2009), and McLean to qualify as an assumption of a special duty of care. Thus, the Appellate Division erroneously found that the EMTs' response was tantamount to an affirmative statement or assurance that plaintiff's daughter would have a better outcome by awaiting ALS. The City made no representation that the ALS ambulance would arrive in a specified number of minutes that would constitute an assurance. Nevertheless, the Appellate Division observed that " [a] t no point did defendant communicate to the mother that the ALS ambulance would take another 20 minutes to arrive for the subsequent transport" [on page 7] , apparently considering the EMTs' failure to provide that information as part of their purported "assurance." There is, however, no support in the case law for a party's crediting and relying on what would at most amount to a failure to provide information (especially information that the speaker did not possess) as a "silent" or "negative" assurance. Indeed, the very fact that -30- the EMTs did not specify how long it would take for the ALS ambulance to arrive supports the conclusion that, as a matter of law, the EMTs' statement could not and did not constitute an assurance. As the Court found in McLean, 12 NY3d 194, when the caller to the City's Department of Health was told that a certain day care provider appeared on a list of certified providers, no "special" assurance or response was provided. 12 NY3d at 201-202. The answer that became the basis for the plaintiff's claim of negligence, albeit it was based upon a negligent failure by the City to remove that provider from a list of approved providers, was one that would have been given to any caller. It had none of the indicia needed to qualify it as a special promise or guarantee. Likewise here, when the EMTs were asked to immediately transport Tiffany, they responded, per plaintiff, that they were waiting for the ALS unit. Most critically, the EMTs did not make any special promise, representation, assurance or guarantee. Thus, as in McLean, no assurance of safety was made. B. The City Established That No Justifiable Reliance On The EMTs' Statement Can be Proven. This Court determined in Valdez and Cuffy that only when reliance is both objectively justifiable, or reasonable, -31- and detrimental can a special relationship be formed. See Valdez, 18 NY3d at 84 (element of justifiable reliance must be assessed through the prism of reasonableness); Cuffy, 69 NY2d at 263; see also Kircher v. City of Jamestown, 74 NY2d 251 (1989). To prove "detrimental" reliance, it must be shown that a viable alternative method to obtain assistance, or an alternative self-help initiative, was declined in reliance upon the municipality's promise of help. See, ~, Silver v. City of New York, supra, 281 AD2d at 234 (summary judgment granted to defendant where plaintiff claiming delayed EMS response offered no proof from which it might be inferred that, based on the assurances given, a decision was made not to seek help from an alternative source) . This Court has held that the justifiable reliance requirement is particularly important in a special duty analysis because it rationally defines and limits the class of persons to whom the special duty extends. Lauer v. City of New York 95 NY2d 95, 102 (2000); Laratro, 8 NY3d 79; Kircher. It also ensures a causal relationship between the government's assurances and the injury. Cuffy, 69 NY2d at 261. To establish justifiable reliance, a plaintiff must prove that he or she detrimentally changed position because of assurances given or actions taken by the government. Id. at 261. See also Mollerson v. City of New York, 8 AD3d 70, 72 (1st -32- Dept. 2004); Clark v. Town of Ticonderoga, 291 AD2d 597 (3d Dept,), ~ den., 98 NY2d 604 (2002); Grieshaber v. City of Albany, 279 AD2d 232 (3d Dept. 2000), ~ den., 96 NY2d 719 (2001). In the specific context of allegations that a municipality failed properly to respond to a 911 call for emergency assistance, this Court has held that proof must establish that the governmental conduct deprived the injured party of assistance that reasonably could have been expected from another source. Merced v. City of New York, 75 NY2d 798, 800 (1990). Consequently, proof that a plaintiff acted in reliance upon a municipality's promise of assistance, with the result that the plaintiff or injured party was put in a worse position than if governmental help had not been requested, having foregone another viable alternative, is essential to a special duty claim. Dept. 2006) See Badillo v. City of New York, 35 AD3d 307 (1st (complaints did not show justifiable reliance demonstrating the special relationship necessary to impose liability for the failure to send rescue personnel, i.e., that the call lulled the decedents into a false sense of security and thereby induced them to forego other possibilities of rescue) . In Silver v. City of New York, supra, for example, the decedent's son quickly called EMS, but then had to return to the -33- decedent to continue CPR. The Appellate Division, Department found as follows: [N] o proof has been offered from which it might be inferred that, based on the assurances given, a decision was made not to seek help from an alternative source, nor that any such decision was causally related to the decedent's death. There is no indication that more efficacious alternatives to waiting for the EMS ambulance were available during the seven- minute period at issue (citations omitted) . First Finally, in Merced, supra, 75 NY2d at 800, a 911 call reported screams and calls for help coming from an apartment but the police did not travel beyond the first floor of the building. The next morning, the police discovered that the decedent had been shot by her husband and bled to death. This Court held, among other things, that the justifiable reliance requirement was not satisfied because it could not be concluded that "the municipality's conduct deprived decedent of assistance that reasonably could have been expected from another source." In the instant case, no evidence of detrimental reliance can be found. Plaintiff never alleged or testified that the EMTs prevented her from using a private vehicle or calling a cab to transport her daughter to the hospital. The City showed in support of its motion that no alternative transport could possibly have been utilized within the limited time frame for successful resuscitation and, in any event, that -34- no viable alternative means of transport existed, Tiffany's need for uninterrupted CPR. given In opposition to the City's motion, plaintiff failed to offer any facts to support the conclusion that, had plaintiff attempted to get her daughter to the hospital by some other means than transport by EMS, such transport could have been accomplished within the limited window for her daughter's recovery. Indeed, the record demonstrates that the window of time was too short for alternative transport. The EMTs made their purported assurance, at the earliest; about a minute after Tiffany went into cardiac arrest; plaintiff's own expert has acknowledged that, as of six minutes later, Tiffany could not have recovered. Moreover, the affidavit plaintiff submitted in opposition to the City's summary judgment made no mention of alternative options she may have had available, much less with the level of specificity required by governing case law. In any event, the courts do not credit a conclusory statement that an alternate means of transportation to a hospital was foregone. For example, in Dixon v. Village of Spring Valley, 50 AD3d 943 (2d Dept. 2008), where the plaintiff submitted a relative's affidavit stating that she could have taken the plaintiff to the hospital by car, the court rejected that affidavit as sufficient proof and held that the plaintiff had not shown that the -35- defendant village's provision of emergency medical assistance put plaintiff's decedent in a worse position than she would have been in had the village not undertaken that emergency service. Plaintiff also argued in her appellate brief, though not on the motion, that the EMTs did not advise her that waiting for the ALS ambulance would cause "a further delay" or tell her "how long it would be before the paramedics arrived," and that, consequently, she "made no effort to consider or seek alternative assistance." As an initial matter, plaintiff did not ask the EMTs how long it would take for the ALS unit to arrive; she simply accepted their response about what they were doing after she asked them to take her daughter to the hospital immediately. More significantly, her assertion misses the point. Even assuming it had been demonstrated that the City had made an assurance, plaintiff still bore the additional burden of showing the specific viable alternative means of transport that she forewent. The appropriate standard in assessing detrimental reliance requires consideration of what reasonable alternatives existed at the critical time, and how plaintiffs could reasonably have availed themselves of such alternatives. Special duty case law clearly demonstrates that a plaintiff must offer detailed and specific proof of reliance, which plaintiff here undeniably failed to do. Dinardo, supra. -36- Regardless of whether plaintiff had proffered evidence of alternative means of assistance, as proved by the expert testimony, no such alternative could have been viable. The City's expert physician explained the critical importance of providing continuous CPR to Tiffany until her arrival at the hospital, an opinion that neither plaintiff not her expert refuted. Plaintiff's own expert conceded that complete recovery is highly unlikely after five to seven minutes without oxygen. The evidence proved· without dispute that Nurse Russo and the assisting EMT had to perform CPR continuously or Tiffany surely would have died or suffered profound brain damage. The need for constant resuscitation efforts on an individual in cardiac arrest has not been questioned. In fact, Tiffany would presumptively have been placed in a worse position if alternate transport had been attempted due to deprivation of continuous CPR. In sum, for all of the above reasons, the decision and order of the Appellate Division, First Department should be reversed, and the complaint should be dismissed, with costs. -37- CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, AND THE COMPLAINT DISMISSED, WITH COSTS. FAY LEOUSSIS, AMY G. LONDON, MARGARET G. KING, EDWARD F.X. HART, DRAKE A. COLLEY, of Counsel Respectfully submitted, MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorney for Defendants- Appellants By: -38- Drake A. Colley Assistant Corpora Counsel PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2000, using Courier New 12. According to the aforementioned processing system, the portions of the brief that must be included in a word count pursuant to 22 N.Y.C.R.R § 600.10(d) (1) (i) contain 8,621 words.