Tiffany Applewhite,, et al., Respondents,v.Accuhealth, Inc., et al., Defendants, City of New York, Appellant.BriefN.Y.January 7, 2013BRIEF OF PLAINTIFFS-RESPONDENTS FRANKLIN COURT PRESS, INC. 212-594-7902 (257-12) Reproduced on Recycled Paper against TIFFANY APPLEWHITE, an infant under the age of 14 years, by her mother and natural guardian, SAMANTHA APPLEWHITE and SAMANTHA APPLEWHITE, Individually, Plaintiffs-Respondents, ACCUHEALTH, INC. and LINDA RUSSO, R.N., EMERGENCY MEDICAL SERVICES and THE CITY OF NEW YORK, Defendants, KRAMER, DILLOF, LIVINGSTON & MOORE 217 Broadway New York, New York 10007 Tel: (212) 267-4177 Fax: (212) 233-8525 Appellate Counsel to: MURRAY S. AXELROD 225 Broadway New York, New York 10007 (212) 619-3300 Fax: (212) 732-7091 Attorneys for Plaintiffs-Respondents Court of Appeals STATE OF NEW YORK Bronx County Clerk’s Index No. 22234/1998 Dated: July 23, 2012 THOMAS A. MOORE, ESQ. MATTHEW GAIER, ESQ. AND NORMAN BARD, ESQ. Of Counsel and On the Brief To be argued by: MATTHEW GAIER OR THOMAS A. MOORE Time requested: 30 minutes and Defendants-Appellants. TABLE OF CONTENTS Pages Table of Authorities ........................................................... iii Statement and Nature of the Case ................................................. 1 Questions Presented ............................................................ 4 Statement of Facts ............................................................. 5 The Instant Lawsuit ..................................................... 11 The Defendant City's Summary Judgment Motion ............................. 12 Plaintiffs' Opposition to the City's Motion ................................... 14 The City's Reply ....................................................... 17 The Supreme Court's Decision ............................................ 18 Plaintiffs' Appeal to the Appellate Division .................................. 19 The City's Arguments in the Appellate Division ............................... 19 The Appellate Division's Decision ......................................... 21 Argument ................................................................... 23 Point I The Allegations at Issue in This Case Involve Proprietary Functions of Ambulance Attendants Rather Than Governmental Functions of The City ......................................................... 26 Point II This Case Involves Misfeasance by The City's EMTs To Which The Special Duty Doctrine Does Not Apply ........................................ 35 Point III The Appellate Division Properly Found That The Defendant Was Not Entitled To Summary Judgment on The Issue of Whether There Was a Special Duty ...................................................... 42 (A) The City's Argument Concerning The Failure to Allege a Special Duty in the Pleadings Is Unpreserved for Review by this Court ........................................... 42 (B) The City Failed to Meet its Prima Facie Burden of Demonstrating the Absence of Issues of Fact Regarding a Special Duty ................................................... 45 (C) The Circumstances and the Evidence Before the Court Establish Issues of Fact to be Resolved by a Jury Regarding a Special Duty ........................................... 52 Conclusion .................................................................. 55 11 TABLE OF AUTHORITIES Cases Pages Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986) ................................ 45,49 Anonymous v. City of Rochester, 13 N.Y.3d 35 (2009) ............................... 23 Apostolakis v. Centereach Fire Dist., 300 A.D.2d 516 (2nd Dept. 2002) ................... 34 Applewhite v. Accuhealth, Inc., 81 A.D.3d 94 (1 st Dept. 2010) ......................... 12 Ayotte v. Gervasio, 81 N.Y.2d 1062 (1993) ..................................... 45,49 Badillo v. City of New York, 35 A.D.3d 307 (1 st Dept. 2006) .......................... 35 Baker v. Allen & Amink Auto Renting Co., 231 N.Y. 8 (1921) ......................... 31 Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966 (1997) ............................. 26,28 Beary v. City ofRy~ 44 N.Y.2d 398 (1978) ........................................ 29 Bingham v. New York City Transit Auth., 99 N.Y.2d 355 (2003) .................... 43,44 Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592 (1999) ......................................................... 29 Cauthers v. Brite Ideas, LLC, 41 A.D.3d 755 (2nd Dept. 2007) .......................... 50 Cherebin v. Empress Ambulance Serv .. Inc., 43 A.D.3d 364 (1 st Dept. 2007) ............................................................... 32 Clinger v. New York City Transit Auth., 85 N.Y.2d 957 (1995) ........................ 26 Cohen v. Cabrini Medical Center, 94 N.Y.2d 639 (2000) .............................. 33 County of Nassau v. Cuomo, 69 N.Y.2d 737 (1987) .................................. 44 Cuffy v. City of New York, 69 N.Y.2d 255 (1987) ................................ 52, 53 Dunham v. Village of Canisteo, 303 N.Y. 498 (1952) ............................. 37,40 Fischer v. Zepa Consulting AG., 95 N. Y.2d 66 (2000) ................................ 43 111 Fonville v. New York City Health & Hosps. Corp., 300 A.D.2d 623 (2nd Dept. 2002) ............................ 17, 18,34,35,37,38,41,42 Garcia v. New York City Health & Hosps. Corp., 299 A.D.2d 268 (1 st Dept. 2002) ............................................................... 29 Haggerty v. Diamong, 251 A.D.2d 455 (2nd Dept. 1998), Iv denied, 92 N.Y.2d 814 (1998) ................................................. 35 Hapletah v. Assessor of Town of Fallsburg, 79 N.Y.2d 244 (1992) ...................... 43 JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373 (2005) .................... 45,48 Joline v. City of New York, 32 A.D.3d 492 (2nd Dept. 2006) ........................... 34 Kellogg v. Church Charity Found. of Long Islang, 203 N.Y. 191 (1911) .......................................................... 31 Kowal v. Deer Park Fire Dist., 13 A.D.3d 489 (2nd Dept. 2004) ................... 33,34,38 LaLonde v. Hurteay, 239 A.D.2d 858 (3 Td Dept. 1997) .... 0 ••••••••••••••••••• 0 •• 0 •• 0 • 35 Lauer v. City of New York, 95 N.Y.2d 95 (2000) ............................ 0 ••••••• 33 Lesocovich v. 180 Madison Ave. Corp., 81 N. Y.2d 982 (1993) .............. 0 •••••••••• 45 Marks v. Nambil Realty Co., Inc., 245 N.Y. 256 (1927) ............................ 36,39 Matter of Chasm Hydro. Inc. v. New York State Dep't of Envtl. Conservation, 14 N.Y.3d 27 (2010) ............................................... 23 Matter of Nicole Vo, 71 N.Y.2d 112 (1987) ......................................... 43 Matter of World Trade Ctr. Bombing Litig., 17 N.Y.3d 428 (2011) ................... 26-28 McClelland v. Mutual Life Ins. Co. of New York, 217 N.Y. 336 (1916) .......................................................... 44 McLean v. City of New York, 12 N.Y.3d 194 (2009) ..................... 21,24,35,46,53 Melodee Lane Lingerie Co. v. American Dist. Telegraph Co., 18 N.Y.2d 57 (1966) .......................................................... 39 Miller v. State of New York, 62 N. Y.2d 506 (1984) ............................... 26-28 IV Misicki v. Caradonna, 12 N.Y.3d 511 (2009) ....................................... 43 Murray v. City of New York, 30 N.Y.2d 113 (1972) ................................. 29 Nevarez v. New York City Health & Hosps. Corp., 248 A.D.2d 307 (1 s! Dept. 1998) ............................................................... 32 O'Grady v. City of Fulton, 4 N.Y.2d 717 (1958) .............................. " .. 37,40 Parvi v. City of Kingston, 41 N.Y.2d 553 (1977) ................................. 35,36 People v. Beasley, 16 N.y'3d 289 (2011) .......................................... 23 Purdy v. Pub. Adm'r of County of Westchester, 72 N.Y.2d 1 (1988) ..................... 33 Riss v. City of New York, 22 N.Y.2d 579 (1968) ................................. 26,29 Rodriguez v. City of New York, 189 A.D.2d 166 (IS! Dept. 1993) ....................... 35 Schempp v. City of New York, 25 A.D.2d 649 (IS! Dept. 1966), affd, 19N.Y.2d 728 (1967) .................................................... 17 Schempp v. City of New York, 19 N.Y.2d 728 (1967) ............................ 29,32 Schrempfv. State of New York, 66 N.Y.2d 289 (1985) ............................ 26,29 Sebastian v. State of New York, 93 N.Y.2d 790 (1999) ............................ 26-29 Smalls v. AJI Indus .. Inc., 10 N.Y.3d 733 (2008) .................................... 45 Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (1992) .............................. 39 Tenuto v. Lederle Labs .. Div. of Am. Cyanamid Co., 90 N.Y.2d 606 (1997) ......................................................... 33 Utica Mut. Ins. Co. v. Prudential Prop. and Cas. Ins. Co., 64 N.Y.2d 1049 (1985) ........................................................ 44 Valdez v. City of New York, 18 N.Y.3d 69 (2011) .......................... 33,46,52,53 Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept. 1997) ...................... 35 Weiner v. Metropolitan Transp. Auth., 55 N.Y.2d 175 (1982) .......................... 26 v Williams v. New York City Health & Hosps. Corp., 262 A.D.2d 231 (1 st Dept. 1999) ............................................ 0 .... 30 Wine grad v. New York Univo Medo Ctr., 64 N.Y.2d 851 (1985) 00' 0 .. 0 ... 0 0 ....... 0 .... 45 Wolfv. City of New York, 39 N.Y.2d 568 (1976) 0 ..... 0 .... 0 . 0 .... 0 ... 00.0 ..... 035,36 Yun Tung Chow v. Reckitt & Colman. Inc., 17 N.y'3d 29 (2011) .0.0 ........ 0 . 0 .. 0 ..... 49 Statutes: CPLR 3211 ........ 0 ...... 0 .. 0 ................................... 0 ........ 13,43 CPLR 3212 .............. '0, ....... 0 ........ 0 ............. 0 ...... 0 0 ....... 12,43 Public Health Law § 3001 ............... 0.0 ........ o ........................ 30,31 VI COURT OF APPEALS STATE OF NEW YORK ----------------.----------------------------------------------------------------)C TIFF ANY 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 SERVICES and the CITY OF NEW YORK, Defendants-Appellants. -----------------------------------------------------------------------------------)C STATEMENT AND NATURE OF THE CASE Tiffany Applewhite sustained severe brain damage when she was 12 years-old as a result of prolonged o)Cygen deprivation after suffering an anaphylactic reaction to medication administered in her apartment by a nurse. Her mother called 911 and told them her daughter was having difficulty breathing, while the nurse obtained an airway. A basic life support (BLS) ambulance staffed by two emergency medical technicians (EMTs) was on the scene within si)C minutes. The EMTs were in the apartment and evaluated the patient within a minute, and found no respirations or pulse. However, they did not transport her to the hospital, which was just four minutes away, until 37 minutes later. Instead, they called for an advanced life support (ALS) ambulance, and assisted the nurse in CPR. The EMTs did not administer any o)Cygen to the patient, and the child did not receive o)Cygen until she was intubated 20 minutes after the EMTs evaluated her. 1 It is plaintiffs' claim that the EMTs were negligent in rendering care for Tiffany's emergency medical conditio,n in three respects, and that these errors led to an extended period of oxygen deprivation. First, although they had oxygen in the ambulance, they failed to bring it into the apartment to treat a complaint of difficulty breathing. Second, they decided not to transport the patient immediately to the hospital, and to instead call for an ALS ambulance. Third, they delayed in calling for the ALS ambulance until six minutes after they assessed her condition. The EMTs who treated the patient were employed by the defendant City of New York. The City moved for summary judgment, arguing that in order to be held liable for the negligence ofthe EMTs, there had to exist a special duty to the plaintiffs, and that there was no such duty in this case. The Supreme Court agreed with the City, and granted summary judgment dismissing the complaint on the ground that there was no issue of fact as to whether the justifiable reliance element of the special duty rule was satisfied. The Appellate Division reversed and reinstated the complaint, finding that under the circumstances prevailing in this case, there was an issue of fact as to whether there was a special duty owed to the plaintiffs. The Appellate Division then granted leave to appeal to this Court. It is plaintiffs' position that the order of the Appellate Division reinstating the complaint should be affirmed for multiple reasons, and not merely for the reason stated by the Appellate Division. Specifically, it is plaintiffs' position that a special duty is not required for the City to be held liable based upon the allegations in this case, for two reasons. First, under the essential analysis employed by this Court for determining whether a special duty is required to hold a governmental defendant liable for negligence, the allegations against the EMTs in this case implicate the proprietary function of providing medical care and treatment rather than a governmental function. If the 911 dispatcher had sent a private ambulance -- and, indeed, the 2 ALS ambulance that eventually arrived was operated by a hospital-- there would be no question that the ambulance company would be liable for the same negligence without any need for a special duty. There is no reason to afford special protection to a City ambulance performing the same function. Second, the three allegations of negligence against the EMTs are each in the nature of misfeasance rather than nonfeasance, such that a special duty is not required. The EMTs undertook to treat the patient and were required to exercise due care in the course of doing so. Their negligent and improper actions represented misfeasance for which no special duty is required. Third, even if a special duty was required, the record in this case does not support a grant of summary judgment on the issue of whether one was owed. The record discloses that the defendant never established that it was entitled to such relief by tendering evidence sufficient to demonstrate the absence of any material issues of fact regarding the existence of a special duty. The record further discloses that under the circumstances then present, there exist issues of fact as to whether there was such a duty, including with respect to the reliance element. While the City argues that dismissal is warranted because the plaintiffs failed to allege a special duty, that argument is being made for the first time before this Court, and is therefore not preserved for review. Finally, we note that in recent years the City of New York has sought to hide behind the special duty doctrine in circumstances it would not have attempted years ago. The claims here are not for a delay responding to a 911 call -- the traditional circumstance in which a special duty is required, but for negligent treatment once they arrived. While we are constrained to acknowledge an apparent expansion by this Court ofthe protections afforded governmental defendants under the special duty doctrine, the City is now seeking to extend this shield to immunize itselffrom liability in circumstances in which it has traditionally been held responsible, and simultaneously deprive compensation to the victims of its negligence. That effort should be soundly rejected. 3 Question One: Answer: Question Two: Answer: Question Three: Answer: QUESTIONS PRESENTED Is the special duty doctrine inapplicable to this case because the allegations involve the proprietary function of providing medical care and treatment rather than a governmental function? Yes. Is the special duty doctrine inapplicable to this case because the allegations involve misfeasance rather than nonfeasance? Yes. Even assuming a special duty was required, was summary judgment in favor of the defendant on the issue of whether such a duty existed improper and unwarranted on the record in this case? Yes. 4 STATEMENT OF FACTS On February 21, 1998, Tiffany Applewhite, then 12 years-old, was receiving an intravenous infusion of Solu-Medrol for treatment of uveitis, an inflammation inside the eye (174, 176, 192).1 The treatment was being administered in her home in the Bronx, by visiting nurse Linda Russo, who was employed by Accuhealth, Inc. (192-93, 255). Tiffany's mother, Samantha Applewhite, was present during the administration of this medication (193, 255-56). Nurse Russo arrived at the Applewhite's home at approximately 11 :00 a.m., and commenced the infusion shortly thereafter (192). After the infusion was started, while she was sirting on the couch next to her mother, Tiffany developed difficulty breathing (193, 255). Nurse Russo wrote that the patient stated, yelling, '''Mommy, I can't breath[e]!'" (193). She described Tiffany as sitting forward on the couch, wheezing and complaining of being unable to breathe (193). Nurse Russo discontinued the infusion, and instructed Ms. Applewhite to call 911 (106, 193). Ms. Applewhite called 911 and informed the operator that her daughter was having difficulty breathing (167-68, 256). The Computer Aided Dispatch (CAD) report indicates that the call was received by the 911 operator at 11: 14 a.m., and documents that the problem was difficulty breathing (211). At the time the call was made, Tiffany was conscious (106). However, nurse Russo wrote that she was rapidly losing consciousness, had seizure activity, and her jaws clamped shut within two to three minutes (106, 193). Nurse Russo laid the patient down and opened her jaws with a padded teaspoon and extended her neck over a towel to help open the airway (106, 193). At 11: 16 a.m., the 911 dispatcher assigned a BLS ambulance with two EMTs to the Applewhite residence (211). Although the computer looks first for an ALS ambulance for a I Numerical cites in parentheses refer to the pages in the Record on Appeal. 5 complaint of difficulty breathing, the BLS ambulance was dispatched because no ALS unit was available (151-53, 211). The CAD report and ambulance call report indicate that the BLS ambulance was on the scene at 11 :20 (157, 213, 218). The CAD report further indicates that at 11 :21, a second 911 call was received from the Applewhite home, informing them that the patient was now unconscious but still breathing (158, 213, 266). The transcript of that 911 call indicates that Ms. Applewhite stated, "I think I hear the ambulance" (169). After this call, the dispatcher changed the status to unconscious and assigned a fire engine (161, 213). The ambulance call report indicates that EMTs were inside the Applewhite apartment within a minute after arriving (218). The EMTs were Peter Mueller (126,211) and Tamika Israel, who subsequently took the married name Tamika Anglin (139, 211). EMT Mueller indicated that when they arrived in the apartment pulmonary resuscitation was being done but cardiac resuscitation had not been done (128). Relative to the resuscitation employed by nurse Russo before their arrival, EMT Mueller testified (133): The pulmonary resuscitation needed to be upgraded to cardiac resuscitation now, because it was detenuined by me when I assessed the patient, the patient was now in cardiac arrest. So it was adequate up until the point that we got there and then we had to go another step further. Nurse Russo indicated that she had obtained an airway by inserting a one-way breather into Tiffany's mouth, perfonued oral resuscitation and saw her chest rising and falling (101, 110, 193). Before proceeding further, it is important to note that there are discrepancies in the evidence, in tenus of both timing and what occurred, between nurse Russo on one hand and the appellants' records and the testimony of its employees on the other. Nurse Russo wrote a note purporting to document the events and the timing (193-94). She testified that she wrote this note after the events 6 based upon "crib notes" that she had been 'jotting" during the events (104-05). Her note indicated that the events started at 11 :15 (193), while the CAD report shows that the first 911 call was made at 11: 14 (211). Nurse Russo wrote that Tiffany was in "full respiratory arrest" at 11: 18 (193), but the CAD report indicates that she was still breathing during the second 911 call at 11:21 (213). Nurse Russo wrote that by 11 :20, Tiffany was in full cardiac arrest and that she performed one person CPR until the "police ambulance arrived at approximately 11 :30" and then two person CPR was done (193); however, EMT Mueller testified, as noted above, that cardiac resuscitation was not started before they arrived (128), and the CAD report indicates that the ambulance arrived by 11 :20 and the ambulance call report indicates that the EMTs were in the apartment by 11 :21 (213, 218) -- the appellants have acknowledged that nurse Russo's reference to a "police ambulance" was erroneous and "must be referring to the BLS ambulance" (21).2 Continuing with the events upon the EMTs' arrival, the ambulance call report indicates the EMTs assessed Tiffany at 11 :21 and found no respiration and no pulse (218). EMT Israel testified that upon arriving in the apartment she checked Tiffany's vital signs and assessed cardiorespiratory arrest (141-42). She then began to assist in doing ventilation and chest compression (140). With regard to the arrival ofthe EMTs at 11 :21, Ms. Applewhite described as follows (256): Two individuals who I believe were Emergency Medical Technicians came into the apartment. They came empty handed. The defendant nurse told them that Tiffany was having an anaphylactic reaction to the 1. V. medication. Russo was upset that they were not prepared for the emergency. Defendant Russo, who was doing CPR at the time, 2 It is important to note these discrepancies because the appellants' brief, in purporting to describe the facts to this Court, picks and chooses portions of each rendition while ignoring the countervailing evidence. For example, the appellants adopt nurse Russo's assertion that Tiffany was in cardiac arrest at 11 :20 despite the evidence that she was still breathing at 11 :21, and ignores her assertion that the first ambulance did not arrive untilll :30 (Appellants' Brief, p. 6). This self-serving adoption of competing evidence by the summary judgment proponent is improper, since the evidence is to be taken in the light most favorable to the non-movant. 7 asked whether either of the two knew CPR and whether they could at least assist her in the CPR. Nurse Russo testified that the EMTs, who she mistakenly thought were police officers, were "standing there" while she was on the floor, and she asked them if they knew CPR (114). When one of them responded affirmatively, nurse Russo asked her to do chest compressions (114). The nurse further testified that she asked if an ambulance was on the way, and one of them left to go place that call (114). Nurse Russo described her impression at this point (114): "You're just calling EMTs now? Isn't it on the way?" You know, this is my sense of urgency now. This is what I'm thinking. Her note indicates that she verbally reported the medications given and the sequence of events to the EMTs, who she thought were police officers (194). The note further states that this was an "[o]bvious severe allergic reaction to IV Solu-Medrol" (194). EMT Mueller testified that he left "[t]o get additional equipment that we would have needed to transport the patient to the hospital, and to request assistance from Advanced Life Support" (128- 29). He testified, "I needed a stretcher, a bag valve mask, the defibrillator" (129). He testified that BLS ambulances carried oxygen and masks (319). Ms. Applewhite stated that the female EMT assisted nurse Russo with CPR while the male EMT "stood around watching, and after some time, finally left the apartment and did not return" (256). She stated, "[a]t no time did either BLS EMT give Tiffany oxygen" (256). She further stated that she asked them to take Tiffany to Montefiore Hospital right away because it was only a few minutes away, which she knew because she was working there at the time, and that they did not heed her advice (256). EMT Israel testified that the standards of care or protocols applicable to a call for difficulty breathing both in 1998 and currently were as follows (263-64): 8 I would do a full patient assessment, they were having trouble breathing, give them oxygen, request for ALS, if there is one available. If not, then we transport them to the hospital. EMT Israel also testified that the standards of care or protocols for treating anaphylactic shock were "if they are still breathing, but having difficulty breathing, we administer oxygen, transport to the hospital, call for ALS if one is available" (265). EMT Mueller testified that BLS ambulances did not carry medicine, and that if medication was required they would call for ALS assistance, and if one was not available quickly enough they would "need to transport the patient to the nearest hospital" (317, 319). EMT Mueller also testified that he reached a dispatcher about an ALS unit as he "was exiting the premises to get the additional equipment," as he was "on the way out of the building" (129). The EMTs carry radios on them and are able to communicate directly with the dispatcher (162). The CAD report indicates that the call was made at 11 :27:47 informing of an arrest and requesting ALS paramedics (162, 213). The CAD report further indicates that within 17 seconds ofEMT Mueller's call- at 11 :28:04 -- the dispatcher assigned an ALS ambulance from Our Lady of Mercy Hospital that had an estimated time of arrival (ETA) of 11 :33 (163, 213). EMT Mueller testified that Montefiore Hospital was approximately two miles from the Applewhite apartment (322). The CAD report indicates that the fire unit arrived on the scene at 11 :30, and that the ALS ambulance arrived at 11 :31 :55 (215). However, there is no indication that the ALS paramedics saw Tiffany until 11 :39, when they noted her to be without pulse or respirations (333). Nurse Russo timed the arrival of the second ambulance at approximately 11 :40 (194). The ALS ambulance call report indicates that treatment was started at 11 :41, at which time the patient was noted as having pulseless electrical activity (PEA) at a rate of20 (333). After that, 9 an endotracheal tube was inserted with no airway obstruction noted, followed by the administration of various medications (333),3 Finally, at 11 :58 the BLS ambulance left to bring Tiffany to Montefiore Hospital (215). They arrived at Montefiore in four minutes (322). In sum, the BLS ambulance arrived at the address by 11 :20 and was in the apartment and assessed the child by 11 :21, but did not transport the child to the hospital until 11 :58. The BLS ambulance was assigned because no ALS ambulance was available, yet the BLS EMTs simply waited for an ALS ambulance rather than transporting the patient to the nearest hospital. The EMTs were aware that they were called for difficulty breathing, and they had oxygen with them, but they failed to bring the oxygen up to the apartment. EMT Mueller inexplicably delayed in calling for an ALS ambulance until six minutes after they assessed her as having no respirations and no pulse, and he did not return to the ambulance for the equipment they failed to bring until that time. Moreover, when he finally made the call, the ALS ambulance had an ETA of five minutes, while the hospital to which Ms. Applewhite asked them to take her daughter was only two miles away. Had the EMTs treated this patient in accordance with the standards of care and protocols they testified were applicable, after assessing her at 11 :21 she would have been receiving oxygen and would have been inside the ambulance in the same minute it took the EMTs to get upstairs and would have been at the hospital as early as 11 :26. Even if it had taken five full minutes to get her into the ambulance (until 11 :26), she would still have been at the hospital by 11 :30. Because they did not treat in accordance with those standards of care, Tiffany did not receive oxygenation and medication until 11 :41 -- eleven minutes after she would have been at the hospital had it taken them 3 The appellants' assertion that they administered medications that "brought her" into PEA (Appellants' Brief, p. 6), is inaccurate. Appellants' own expert acknowledged that the "anaphylactic reaction put this patient's heart in PEA" (54). 10 five times as long to get her into the ambulance as it took them to get upstairs. Thus, the EMTs' negligence in not bringing oxygen, in delaying calling for an ALS ambulance and in delaying bringing her to the hospital, resulted in a significant prolongation of oxygen deprivation to her brain. Tiffany suffered brain damage as a result of this lack of oxygen (257). She spent 13 months in a rehabilitation facility (392). She cannot talk, eat on her own, get out of bed or move her extremities on her own, or communicate (254). She is unable to perform any activities of daily living (254, 392). The Instant Lawsuit This action was commenced against Accuhealth, nurse Russo, Emergency Medical Services (EMS), and the City of New York by filing a summons and complaint on or about September 11, 1998 (62-70). A timely notice of claim had previously been served upon the City (64). The complaint alleged that on February 21, 1998, the City of New York "undertook the obligation of rendering medical care and attention to the infant plaintiff' (65). It alleged that "it was the duty of the defendants, their agents, servants and/or employees, to render that degree of medical/nursing care and attention to infant plaintiff as was warranted under the circumstances surrounding infant plaintiff's condition" (65). The complaint further alleged (66): That the defendants their agents, servants and/or employees were careless, reckless and negligent in the care and treatment rendered to infant plaintiff in failing to render that degree of care in conformity with good and accepted standards of practices; in failing to adhere to good and accepted standards of practices; in departing from good and accepted standards of practice; in rendering a degree of care to infant plaintiffs that was not adequate; in improperly administering care and attention to infant plaintiff; in failing to render that degree of care to infant plaintiff that plaintiffs rightfully expected and anticipated; in causing infant plaintiff to suffer and experience unnecessary pain and mental anguish; in causing iatrogenic injuries; in exacerbating the patient's condition; and, in otherwise being careless, reckless and negligent. 11 On or about December 10, 1998, the plaintiffs served a Verified Bill of Particulars which made various allegations of negligence, including "failing to adequately oxygenate the patient" (85). On or about March 31, 2008, plaintiffs served a Supplemental Bill of Particulars, which made additional allegations of negligence against the defendant City of N ew York, including failing to follow applicable protocols, as well as those by the Regional Emergency Medical Advisory Committee (REMAC) for Basic Life Support Ambulances and Basic Emergency Medical Technicians existing in 1998 for treating respiratory and cardiac arrest and anaphylactic shock, and failing to administer oxygen, failing to immediately call for an ALS ambulance, and failing to immediately transport the plaintiff to the nearest medical facility (90-91). The case was delayed extensively by the bankruptcies of Accuhealth and its insurer (26). A Note ofIssue was filed on May 8, 2009 (335). In July, 2009, defendant nurse Russo moved for summary judgment (237). By order and decision dated October 23,2009, that motion was denied (390-94). That order was affirmed by the Appellate Division. See Applewhite v. Accuhealth, Inc., 81 A.D.3d 94 (1 st Dept. 2010). On September 8, 2009, while the nurse's summary judgment motion was pending, the defendant City of New York (the City) also moved to dismiss the complaint against it (14). The Defendant City's Summary Judgment Motion The City's motion was for summary judgment pursuant to CPLR 3212 (13, 15). In so moving, the City made four arguments: (1) there was no special relationship between the patient and the City such that the City owed her no special duty (28-35); (2) claims against the City based upon sending a BLS ambulance rather than an ALS ambulance in response to the first call are prohibited on the basis of discretionary governmental immunity (35-41); (3) the City's negligence was not a proximate cause of the injuries (42-43); and, (4) the allegations regarding negligent training and 12 supervision cannot stand because the City is vicariously liable for its employees (43-44). The City did not move pursuant to CPLR 321 1 (a)(7) on the ground that the pleadings failed to state a cause of action for failing to allege a special relationship or a special duty, and the motion papers did not argue that dismissal was required because the plaintiffs failed to plead or allege a special relationship or a special duty. Of the four arguments asserted by the City in support of summary judgment, the only one at issue on this appeal is that involving the special duty doctrine. The City's argument on this issue was founded upon the premise that municipal ambulance services perform a governmental function, like police departments, for which a duty is owed to the public generally, and that liability may only be affixed for the failure to provide such service if four elements are satisfied (28). Relative to the first element -- an assumption by the City of an affirmative duty to act -- it argued that said duty was satisfied by a BLS ambulance arriving within six minutes of the first call, and that the City never assumed a duty to send an ALS ambulance (29). The City also argued that the fourth element -- justifiable reliance -- cannot be satisfied in this case (30). It argued that this element requires proof that based upon the assurance of assistance, the plaintiff was put in a worse position by foregoing other means to address the situation (30-32). It argued that this proof cannot be made in this case because "[n]o alternative was available but to continue CPR and wait for an ambulance to arrive" (33). However, the City submitted zero proof of this alleged fact. It submitted no deposition testimony from Ms. Applewhite or nurse Russo establishing that factual assertion. The City then argued that this supposed fact applied to the circumstances once the BLS ambulance arrived, including the EMTs failure to bring oxygen (34-35) -- the patient "had no alternative available" (34); "there was no alternative means of obtaining assistance ... " (35). Again, the City submitted no factual proof in support of these assertions. 13 Before turning to plaintiffs' opposition, it is pertinent to note that although the plaintiffs had alleged in their supplemental bill of particulars that the EMTs violated the applicable REMAC protocols for respiratory and cardiac arrest and anaphylactic shock (90-91), the City's expert, Dr. Anthony Mustalish, who boasted to have been on the advisory panel that drafted the "precursors" to the REMAC protocols (47), did not aver in his affirmation that the applicable protocols were complied with by the EMTs in treating Tiffany. Instead, it was his opinion, based upon an interpretation of the evidence most favorable to the defendant City, that she was already profoundly brain damaged by the time they arrived and that nothing they did or could have done caused her injuries (53-55). He also opined, in conclusory fashion, that it would have taken them eleven minutes to get her downstairs and into the ambulance to go to the hospital (58-59), even though it took the EMTs only a minute to get up to her once they arrived on the scene. Plaintiffs' Opposition to the City's Motion As is pertinent on this appeal, the plaintiffs made several arguments in opposition to the City's motion. They argued that the factual allegations in the defense attorney's affirmation have "no probative value and must be disregarded," including the allegation that the plaintiffs had no available alternative (242-43). The plaintiffs also argued that the EMTs violated the protocols applicable to BLS ambulances (244-49). They explained that the BLS ambulance arrived within five minutes, and that their claims are premised upon the conduct of the EMTs after they arrived at the scene (251). They clarified that their claims are premised upon three departures from the standards set forth in the BLS protocols: (1) failing to immediately and continuously oxygenate the patient; (2) failing to immediately transport the patient to the hospital; and, (3) failing to immediately call for an ALS ambulance when they realized the gravity of the patient's condition (251). 14 Relative to the protocols, the plaintiffs demonstrated that the City claims not to have the 1998 protocols for BLS ambulances, and that the REMAC committee no longer possessed them but advised plaintiffs to "contact the ambulance service involved to obtain the Protocols from 1998," because "[t]he agency should have retained copies" (245, 269). Plaintiffs attached a copy of pertinent portions of the protocols in effect in 2007 (270-316). The protocols for respiratory distress/failure include administering oxygen, requesting ALS assistance, and transporting the patient (274). The protocols for pediatric respiratory distress/failure emphasize (309): NOTE: HIGH CONCENTRATION OXYGEN SHOULD AL WAYS BE USED IN PEDIATRIC PATIENTS. Those protocols also instruct to request ALS assistance and transport keeping the child warm (309). The protocols for non-traumatic cardiac arrest include requesting ALS assistance and transporting, while continuing CPR during transport (276). The protocols for pediatric non- traumatic cardiac arrest are substantially the same (312-13). The protocols for an anaphylactic reaction emphasize (279): NOTE: REQUEST ALSASSISTANCE,IF AVAILABLE. DONOT DELAY TRANSPORT TO THE HOSPITAL. Those protocols further instruct, "[ a]dminister high concentration oxygen" (279). They also instruct to assess the cardiac and respiratory status and, as pertinent here, if either are abnormal and the patient has not been prescribed an epinephrine injector, begin transport and seek authorization to administer epinephrine if available (279). The anaphylactic reaction protocols instruct that if cardiac arrest occurs refer to the non-traumatic cardiac arrest protocols (280). The protocols for pediatric anaphylactic reaction are substantially the same (314-15). The protocols for seizures likewise included administering oxygen, requesting ALS assistance, and transporting (283). 15 The plaintiffs established via the testimony of the defendant's EMTs that the protocols and procedures for respiratory distress and failure were the same in 1998 as they were in 2008, and that the protocols or procedures for anaphylactic shock were substantively the same in 1998 as those described in the 2007 REMAC protocols (245-46, 263-65, 317, 319). The plaintiffs further established, via an affidavit from Ms. Applewhite, that the EMTs did not bring oxygen to the apartment to treat the patient having difficulty breathing, that nurse Russo informed them that this was an anaphylactic reaction, and that EMT Mueller just "stood around watching" for a period of time before leaving to get equipment and oxygen (247-48,256). They also established that EMT Mueller did not call for anALS ambulance until 11 :28 [it was actually 11 :27:47 (213)], that they did not attempt to immediately transport her to the nearest hospital, which was only four minutes away, and that the ALS paramedics did not arrive until 11 :39 (248-49,268, 322, 333). The affidavit of Ms. Applewhite established that she "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"(256). She further averred that when she saw they were only doing CPR, she "asked them to please take Tiffany to Montefiore Hospital right away, because it was only a few minutes away from our house at that time," and that they did not heed her advice and instead waited for the paramedics (256). Ms. Applewhite also stated that Tiffany did not get oxygen and medications until the paramedics arrived "[a]bout 20-25 minutes" after the EMTs (257). The plaintiffs also relied on the affirmation of their expert anesthesiologist, Dr. Michael Wajda, which was previously submitted in opposition to nurse Russo's motion (249, 258-60). He. explained that "the longer the brain cells are deprived of oxygen, the more severe and irreversible is the damage," that a complete clinical recovery is highly unlikely after 5-7 minutes without oxygen, 16 and that Tiffany's injuries "could have been mitigated by earlier administration of oxygen to increase the oxygen content in the blood," as well as by better CPR and earlier administration of epinephrine (259). Dr. Wajda noted the EMTs arrived within five minutes of the initial call, and that if they had "administered oxygen to the patient immediately upon arrival at the Applewhite apartment, and continued to administer oxygen for 20 minutes until the second responders came, Tiffany would have had a much better chance of recovery" (259). Dr. Wajda further opined that if the EMTs were unable to treat the patient and provide oxygen and if the nearest hospital was only minutes away, they should have brought her immediately to the hospital, in which case she "most probably would have had a better outcome" than waiting for the ALS ambulance (260). Based upon the above, the plaintiffs argued that there are issues of fact precluding summary judgment (253-54). They also cited Fonville v. New York City Health & Hosps. Corp., 300 A.D.2d 623 (2nd Dept. 2002), and Schempp v. City of New York, 25 A.D.2d 649 (15t Dept. 1966), aff d, 19 N.Y.2d 728 (1967), for the proposition that the City is not insulated from liability where its EMTs undertook to treat the patient but failed to exercise due care in the course of doing so (253). The City's Reply The City observed on reply that since the plaintiffs limit their claims to not administering oxygen, not immediately taking the patient to the hospital and delaying in calling an ALS ambulance, any other claims should be dismissed (335-36). On the special duty issue, defense counsel focused on the reliance element, repeating the same arguments from his initial affirmation, including his assertion that the plaintiffs had no alternative means of obtaining care, and further arguing that Ms. Applewhite's affidavit was insufficient to establish detrimental reliance (336-40). Notably, with regard to the plaintiffs' argument that the special duty doctrine does not apply once the EMTs arrived on the scene, the defendant purported to change its long-standing legal position, stating (339): 17 On the law, plaintiffs cite Fonville v. New York City Health and Hospitals Corporation, 300 A.D.2d 623, 754 N.Y.S. 2d 295 (2d Dept, 2002), for the proposition that they may sue despite the special duty doctrine because the EMTs arrived and undertook to treat the patient. However, the decision in that case clearly states that HHC conceded that once a duty is voluntarily undertaken ''to undertake affirmative action," the duty must be discharged with due care. I have been advised by the Corporation Counsel's office that the Corporation Counsel no longer makes that concession in EMS cases, whether on behalf of the City (which now operates EMS) or HHC (which formerly did). (Material in parentheses in original.) The defendant further argued that Fonville involved misfeasance, and that the claims relating to bringing oxygen, transporting the patient to the hospital and calling an ALS ambulance are nonfeasance (339-40). The City also submitted a reply affirmation from Dr. Mustalish, purporting to critique the affirmation of Dr. Wajda (358-66). Notably, while Dr. Mustalish stated that "[t]he standard of care was to call for ALS, which EMT Mueller did" (363), he did not address his six minute delay in making that call. Moreover, there is absolutely no basis in the record for Dr. Mustalish's assertion that EMT Mueller was not told that ALS was unavailable or would be delayed (363). Dr. Mustalish also asserted, for the first time, that the protocols are not binding, that the "experience and thinking of practitioners in the geographic area is what constitutes the standards of care," and that the EMTs did what they should have done (365). He failed to address the fact that EMTs Israel and Mueller testified to standards of care with which they failed to comply. The Supreme Court's Decision In a memorandum decision dated March 16,2010, the Supreme Court granted the motion and dismissed the complaint against the City (7-11). The Court found that no special duty existed because there was no detrimental reliance (8-10). It further found that the plaintiffs' allegations 18 amounted to nonfeasance, such that the special duty doctrine was applicable (10). The Court further indicated that it would have found that there was no proximate cause as a matter oflaw (10-11). Plaintiffs' Appeal to the Appellate Division The plaintiffs filed a timely Notice of Appeal to the Appellate Division, First Department (3- 5). As pertinent here, plaintiffs argued in the Appellate Division that no special duty was required because their claims against the defendant for failing to treat Tiffany in accordance with the applicable protocols and standards of care involved misfeasance rather than nonfeasance (Brief on Behalf of Plaintiffs-Appellants to the Appellate Division, pp.l4-22). In making this argument, plaintiffs noted that as distinguished from a failure by 911 to send an ambulance, the EMTs entered the Applewhite premises and undertook to administer emergency aid but did so in a negligent manner (id. at p. 18). The plaintiffs argued that even if a special relationship was required, the reliance element was satisfied under the circumstances of this case (id. at pp. 23-29), emphasizing that Ms. Applewhite specifically asked the EMTs to take her daughter to the hospital (ill. at p. 25). The plaintiffs also argued that the record presented issues of fact as to whether the EMTs' negligence was a substantial contributing factor to the brain damage that Tiffany sustained (id. at pp. 30-38), as well as other issues of fact which require resolution by ajury (ill. at pp. 39-41).4 The City's Arguments in the Appellate Division In responding to plaintiffs' arguments on appeal, the City argued that the provision of emergency medical services is a governmental function that requires proof of a special duty as a basis for liability (Respondents' Briefin the Appellate Division, pp. 17-23). The City founded this 4 The plaintiffs also argued in the Appellate Division that the City's motion was untimely (id. at pp. 10-13). However, plaintiffs are not pursuing that argument before this Court. 19 argument upon the 911 system relating to emergency medical assistance (id. at pp. 18-19), and distilled the issue as follows (id. at p. 19): Reduced to its essence, the crucial issue presented upon appeal is as follows: when municipal emergency medical personnel respond to a 911 call and begin to assess and stabilize an individual, is proof of a special relationship still required, or does a general tort duty attach, the negligent performance of which can be the basis for a lawsuit? We submit that the same analysis pertains throughout the course of EMS's provision of emergency medical services, from dispatch through on-scene care through transport. The City conceded that the negligence is ministerial in nature, not discretionary (id. at p. 18, n. 4). The City responded to plaintiffs' argument that it had a duty to act with due care once it undertook to act by arguing that this applies only when the action places the person in need of assistance in a worse position than they found her (id. at p. 26). In responding to plaintiffs' argument that the special duty rule does not apply to misfeasance as opposed to nonfeasance, the City did another about face and withdrew from the position it took on reply, acknowledging that" ... plaintiffs are correct that acts of misfeasance may render the special duty doctrine inapplicable" (id. at p. 27); however, it maintained that the claim here involves nonfeasance (id. at pp. 28-29). The City further argued that it met its prima facie burden in moving for summary judgment by establishing that it did not assume any duty and that no reliance was present (id. at p. 31). Notably, with regard to the reliance element, the City hypocritically attacked plaintiffs' position as unsupported by any proof, but failed to cite any evidence in the record establishing its attorney's assertion that Ms. Applewhite had no alternative means of getting assistance (id. at p. 34). The City also maintained that there was no issue of fact as to causation (ill. at pp. 37-39). Nowhere in its brief to the Appellate Division did the City ever argue that the plaintiffs failed to allege a special duty in their complaint. 20 The Appellate Division's Decision The Appellate Division determined that the threshold question was whether the City was acting in a governmental capacity as opposed to a proprietary capacity (401). It identified the parties' respective contentions as follows (402-03): Plaintiffs posit that we must analyze this case under general tort principles because the EMS personnel were allegedly negligent in their provision of medical care, and provision of medical care is not a government function. Conversely, the City argues that the provision of emergency medical services is a government function that requires proof of a special duty as a basis for liability. In a footnote at the end of the above paragraph, the Appellate Division addressed the misfeasance versus nonfeasance dichotomy, noting that the City conceded that a misfeasance may render the special duty doctrine inapplicable (403). However, the Court, citing this Court's opinion in McLean v. City ofN ew York, 12 N. Y 3d 194 (2009), found that the special duty doctrine applies to all governmental functions, irrespective of whether the acts are a misfeasance or a nonfeasance, and said it would therefore not evaluate this case using that distinction (403). It then indicated it would "merely distinguish proprietary functions from ministerial functions" (403). The above analysis notwithstanding, the Appellate Division proceeded to analyze plaintiffs' claim regarding not bringing oxygen as not alleging that they provided medical treatment in an improper manner -- essentially fmding it to be a nonfeasance rather than a misfeasance (403). It also concluded that the failure to transport the patient to the hospital rather than waiting for the ALS ambulance is much closer to the performance of a government function than a proprietary act of a medical provider (404). The Court's decision did not address the third allegation -- the delay in calling for an ALS ambulance. Upon this analysis, the Court concluded that the special relationship doctrine applies. 21 The Court nevertheless found that dismissal was improper under that doctrine (404-06). It found that the defendant assumed a special duty to the plaintiff and satisfied the first element of the doctrine by sending a BLS ambulance and by the assurances given to Ms. Applewhite by the EMTs that they were better off waiting for an ALS ambulance than transporting Tiffany to the hospital (404-05). The Court further noted that there was no dispute as to the second and third prongs, and that the main point of contention was with respect to the fourth element -- justifiable reliance (405). In that regard, the Court noted that the defendant's contention that Ms. Applewhite could not have relied on anything they said or did "misses the point" (405), and found justifiable reliance based upon the circumstances (405-06): 07). The record reflects that the mother asked 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. The Court further found that the record presented issues of fact as to proximate cause (406- The Appellate Division subsequently granted the City's motion for leave to appeal to this Court upon a certified question (397). 22 ARGUMENT The Appellate Division's order reinstating plaintiffs' complaint against the City should be affirmed. Specifically, in addition to the Appellate Division's accurate appraisal that questions of fact exist as to whether the defendant owed the plaintiffs a special duty, it is the plaintiffs' position that the special duty doctrine does not apply to the facts and circumstances of this case, and that the case should proceed against the City on the issue of negligence in the care and treatment provided by its EMTs irrespective of any special duty. While the Appellate Division reversed summary judgment on the ground that there exists an issue of fact as to whether there was a special duty, this Court can, and should, affirm that result on the ground that no special duty is required under the circumstances of this case. There is no question that this Court can, and often does, affirm on different grounds than those determined by the Appellate Division. See People v. Beasley, 16 N.Y.3d 289,292 (2011); Matter of Chasm Hydro, Inc. v. New York State Dep't ofEnvtl. Conservation, 14 N.Y.3d 27,31 (2010); Anonymous v. City of Rochester, 13 N.Y.3d 35, 44 (2009). The result in this case should be affirmed because a special duty should not be required for the plaintiffs to recover for the City's negligence. Requiring a special duty where a municipal ambulance has already arrived on the scene and its attendants are proceeding to provide emergency medical care and treatment would be an expansion of the special duty requirement beyond any circumstances which this Court has ever sanctioned. Had the 911 operator assigned a private ambulance rather than a City EMS ambulance, there would be no question that the private ambulance operator would be liable for the negligence alleged in this case. It serves no salutary purpose to cloak the City with a shield of immunity for the same acts that a private ambulance and private healthcare providers would be held liable in the same exact circumstance. 23 It is plaintiffs' position that the Appellate Division failed to properly evaluate the three allegations of negligence against the City in this case in deciding whether those allegations involve a proprietary or a governmental function. Since those allegations have no bearing on any governmental aspect of EMS's involvement in Tiffany Applewhite's situation that day, they must clearly be regarded as proprietary in nature, such that there is no requirement of a special duty for the City to be held liable for that negligence. Further, the three allegations of negligence represent misfeasance by the EMTs as opposed to nonfeasance, and this is a separate reason why the special duty rule does not apply in this case. We can discemno basis from this Court's opinion in McLean v. City of New York, 12 N.y'3d 194 (2009) for the Appellate Division's conclusion that it obviated the misfeasance/nonfeasance distinction for the purposes of determining whether a special duty is required (403). Moreover drawing such a distinction for determining whether the doctrine applies is perfectly and unassailably logical. If a governmental entity promises to show-up for an emergency and fails to do so, liability should be affixed only if there was justifiable reliance on the promise. However, there is no valid purpose for shielding the governmental actor from liability for failing to proceed with due care once it has arrived at the scene and undertakes action. That is precisely what happened here. The BLS ambulance and EMTs arrived at the scene and departed from the protocols and the standards of care in addressing Tiffany's medical emergency. Accordingly, no special duty should be required, and the City should be subject to liability for the negligence of the EMTs. It is further noted, while perhaps no longer relevant in light of this Court's holding in McLerul,12 N.Y.3d at 202-03, that the special duty doctrine applies to acts which are ministerial in nature, the City has conceded that the allegations of negligence in this case involve ministerial rather than discretionary acts (Respondents' Briefin the Appellate Division, p. 18, n.4). Were this Court 24 to revisit the issue of whether a special duty is not required for failures to perform ministerial acts, that would provide another basis for finding that no special duty is required in this case. Finally, even if a special duty was required in this case, the facts and circumstances warrant submission of the issue to ajury. It is noteworthy that the City raises an argument that it has not previously raised either in the motion court or in the Appellate Division -- that the plaintiffs failed to allege the special duty doctrine in their complaint. Aside from the fact that this assertion is waived and unpreserved for review by this Court, the very fact that the City was compelled to make such an inappropriate argument at this juncture speaks volumes about the impropriety of granting summary judgment on that issue on the record before this Court. A review of the record makes clear that the City's motion for summary judgment on the ground that there was no special duty is premised purely on the conjecture of its attorney, with no evidence demonstrating the absence of issues offact with regard to the elements of the doctrine. Having failed to sustain its burden as the movant, the fundamental principles of summary judgment required that the City's motion be denied. Further, as the Appellate Division properly found, the circumstances present in this case demonstrate issues of fact concerning whether there was a special duty, including justifiable reliance by Ms. Applewhite. For all of the above reasons, the order of the Appellate Division reinstating the complaint against the City should be affirmed. 25 POINT I THE ALLEGATIONS AT ISSUE IN THIS CASE INVOLVE PROPRIET ARY FUNCTIONS OF AMBULANCE ATTENDANTS RATHER THAN GOVERNMENTAL FUNCTIONS OF THE CITY It is well settled that when a governmental entity engages in a proprietary function it is subject to the same principles of tort liability as any private individual, corporation or institution engaging in the same function, and it may be held liable for negligence in the performance of that function without the necessity of any special duty or special relationship. See Matter of World Trade Ctr. Bombing Litig., 17N.YJd428,445-47 (2011); Sebastian v. State of New York, 93 N.Y.2d 790, 793 (1999); Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966,968 (1997); Clinger v. New York City Transit Auth., 85 N.Y.2d 957, 959 (1995); Schrempfv. State of New York, 66 N.Y.2d 289,294 (1985); Millerv. State of New York, 62N.Y.2d506, 511-13 (1984); Weinerv. Metropolitan Transp. Auth., 55 N.Y.2d 175, 180-82 (1982); Riss v. City of New York, 22 N.Y.2d 579,581 (1968). In many cases, a governmental defendant performs dual proprietary and governmental functions, and in such cases it becomes necessary to determine which category the conduct at issue falls under. See World Trade Ctr. Bombing Litig., 17 N.YJd at 446; Sebastian, 93 N.Y.2d at 793; Balsam, 90 N.Y.2d at 968; Clinger, 85 N.Y.2d at 959; Miller, 62 N.Y.2d at 511-12. As this Court explained in its seminal opinion in Miller, 62 N.Y.2d at 511-12: It is not disputed that when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord (see Court of Claims Act, § 8; Preston v State a/New York, 59 NY2d 997, 998; Bass v City 0/ New York, 38 AD2d 407, 411, affd no opn 32 NY2d 894, supra.; Duren v City a/Binghamton, 172 Misc 580, affd 258 App Div 694, affd 283 NY 467). The difficulty here arises from defendant's dual role, where it has acted in a proprietary capacity as a landlord by its ownership and control of the SUNY campus, and also in a governmental capacity by providing police protection through the appointment of campus security officers 26 "to preserve law and order on the campus" (see Education Law, § 355, subd 2, par m). A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. This Court explained in Miller, 62 N.Y.2d at 512, that in making this determination: " ... we must' distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises' (Riss v. City of New York, 22 NY2d 579, 581) and are performed in a proprietary capacity from those which are and have always been considered governmental in nature" (Bass v City of New York, 38 AD2d 407, 411, affd no opn 32 NY2d 894, supra). See also Sebastian, 93 N.Y.2d at 793, 795. It was further observed in Miller, 62 N.Y.2d at 513, that in making this distinction between governmental and proprietary activities the focus is on the specific acts or omissions at issue: '" "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred" (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182). See also World Trade Ctr. Bombing Litig., 17 N.Y.3d at 447. "As such, in light of the fact that the varied functions of a governmental entity can be interspersed with both governmental and proprietary elements, the determination of the primary capacity under which a governmental agency was acting turns solely on the acts or omissions claimed to have caused the injury." Id. 27 This Court has consistently applied these principles in evaluating whether a governmental defendant was engaged in a proprietary or a governmental function for the purposes of detennining whether a special duty is required for the defendant to be held liable for negligence in the perfonnance of that function. Hence, in Miller, while allegations of "failure to provide adequate police protection" were governmental in nature and subj ect to a special duty (62 N. Y.2d at 509, 512), this Court determined that "the failure to lock the outer doors of the donnitory" was proprietary, such that the State was subject to liability for negligence relative to that allegation ag. at 513). Ownership and care relating to buildings with tenants has traditionally been carried on through private enterprise, specifically by landlords and thus constitutes a proprietary function when perfonned by the State (see Bass v City a/New York, 38 AD2d 407, 411, affd no opn 32 NY2d 894, supra). Conversely, in World Trade Ctr. Bombing Litig., 17 N.Y.3d at 448, where the acts and omissions alleged against the defendant Port Authority involved evaluating the risks of terrorist attacks and adopting security protocols to deter such attacks, this Court concluded that such actions were not separable from the provision of security and, hence, stem directly from its failure to allocate police resources for terrorist intrusion. Similarly, in Sebastian, 93 N.Y.2d at 795, where it was alleged that the State was negligent in permitting a juvenile delinquent to escape, this Court found that "removal of juveniles from the community by court order and their placement in public confmement ... denotes a quintessentially governmental activity." Likewise, in Balsam, 90 N. Y.2d at 968, where the plaintiff claimed that the police were negligent in failing to take action in response to icy conditions on a public roadway, this Court found that "traffic regulation is a classic example of a governmental function .... " In each of these cases, this Court determined that the specific·· allegations of negligence involved functions that were traditionally governmental. 28 This Court has further recognized that the provision of medical care and treatment is traditionally a proprietary function rather than governmental. See Sebastian, 93 N.Y.2d at 795; Schrempf, 66 N.Y.2d at 293-95; Riss, 22 N.Y.2d at 581. In Schrempf, this Court agreed with the claimant's assertion that a special relationship "is not necessary where it is alleged that the State's· negligent care and treatment of a mental patient has resulted in injury to a third party." 66 N. Y.2d at 293. In reaching that conclusion, this Court held that the special duty rule: ... has no application in cases where the State engages in a proprietary function (Miller v State of New York, 62 NY2d 506; Bass v City of New York, 38 AD2d 407, affd no opn 32 NY2d 894), such as providing medical and psychiatric care (see, Riss v City of New York, supra, at pp 581-582). In those cases, the State is held to the same duty of care as private individuals and institutions engaging in the same activity (Miller v State of New York, supra, at p 511; Bernardine v City of New York, 294 NY 361; Court of Claims Act § 8; see also, Koenigsmark v State of New York, 55 NY2d 928; Cohen v State of New York, 51 AD2d 494, affd 41 NY2d 1086; St. George v State of New York, 283 App Div 245, affd no opn 308 NY 681; Daley v State of New York, 273 App Div 552, affd no opn 298 NY 880). Id. at 294 (emphasis added). It is thus beyond dispute that the provision of medical care and treatment is traditionally a proprietary function. Indeed, it has never been disputed that governmental hospitals are subject to liability for negligence in providing medical care and treatment, without the requirement of any special duty. See~, Bryant v. New York City Health & Hosps. Corp., 93 N.Y.2d 592 (1999); Beary v. City of Rye, 44 N.Y.2d 398 (1978); Murray v. City of New York, 30 N.Y.2d 113 (1972); Schempp v. City of New York, 19 N.Y.2d 728 (1967). This includes emergency medical care -- in fact, Murray, 30 N.Y.2d at 115, involved "emergency treatment" at "the City Hospital Center, Elmhurst.. .. " See also Garcia v. New York City Health & Hosps. Corp., 299 A.D.2d 268,269 (1 st Dept. 2002) ("defendant had been negligent in assessing the gravity of the condition of plaintiff s 29 decedent when she presented herself for care and treatment at defendant's hospital emergency room"); Williams v. New York City Health & Hosps. Corp., 262 A.D.2d 231 (lst Dept. 1999) ("medical malpractice action arises out of treatment plaintiff received in the emergency room at Harlem Hospital following an automobile accident"). The care provided by EMTs is emergency medical care. "Emergency medical technician" is defined in Public Health Law § 3001 [6] as an individual who meets the minimum regulatory requirements "and who is responsible for administration or supervision of initial emergency medical care and transportation of sick or injured persons." Hence, the functions of EMTs involve the provision of emergency medical care, which is traditionally proprietary as opposed to governmental. Because the provision of medical care and treatment by EMTs is so clearly a proprietary function, the City seeks to define the issue as: ... the entire municipal emergency medical system - starting with receipt of 911 calls and dispatch of ambulances, through arrival on scene, stabilizing the sick or injured party and transporting him or her to the hospital.. .. (Respondents' Brief in the Appellate Division, p. 29). Based upon that definition, the City has argued that the functions at issue are subsumed in an overall governmental function (id.). The City's attempt to analyze the claims in this case as involving "the entire municipal emergency medical system" so as to treat proprietary functions as governmental is entirely inappropriate. At best, this contrived, self-serving definition, involves what this Court has described as "dual" proprietary and governmental functions, which necessitates an examination ofthe specific acts or omissions alleged to determine the category into which they fall (supra, pp. 26-27). Notably, while the City insisted in the Appellate Division that the entire municipal emergency medical system must be considered as a whole for the purpose of assessing whether the 30 function was proprietary or governmental, its brief to this Court focused only on the actions of the EMTs after they arrived in arguing that the first special duty element did not exist (Appellant's Brief, p. 30-31). That is because plaintiffs' allegations are addressed only to those actions. As specified in their opposition to the City's motion, plaintiffs assert three claims of negligence against the City: (1) failing to immediately and continuously oxygenate the patient; (2) failing to immediately transport the patient to the hospital; and, (3) failing to immediately call for an ALS ambulance when they realized the gravity of the patient's condition (251). These allegations involve only the care provided by the EMTs once they arrived on the scene, and do not impact on any other aspect of the emergency medical system. As such, the claims in this case cannot be regarded as involving governmental functions, and the special duty rule is inapplicable. It is important to note that it was simply a matter of fortune that the 911 dispatcher sent an EMS ambulance rather than a privately owned ambulance. 5 In fact, the second ambulance dispatched in this case was a private one, owned and operated by Our Lady of Mercy Hospital (163, 213). Had the attendants in that ambulance (or any other private ambulance) been negligent relative to administering oxygen or transporting to a hospital, there is no question that they would be answerable for that negligence without the necessity of a special duty. This illustrates the illogic of the City's position. A plaintiff injured by negligent medical care at the hands of private ambulance attendants sent by the 911 dispatcher may pursue claims of negligence against the ambulance service, 5 Private entities have long been engaged in the business of operating ambulance services. See, ~ Baker v. Allen & Amink Auto Renting Co., 231 N.Y. 8, 11 (1921) ("Homeopathic Hospital of Albany became the owner of a fine new Cadillac automobile ambulance" and "made an agreement with Allen & Amink Auto Renting Company to run it for one month"); Kellogg v. Church Charity Found. of Long Island, 203 N.Y. 191 (1911) (charitable hospital corporation owned horse-drawn ambulance involved in collision with bicycle in 1904). Accordingly, the definition of an "Ambulance service" in Public Health Law § 3001 [2] includes "an individual, partnership, association, corporation, municipality or any legal or public entity or subdivision thereof engaged in providing emergency medical care and the transportation of sick or injured persons .... " 31 but the same plaintiff injured by the same negligence at the hands of City ambulance attendants sent by the same 911 dispatcher may not pursue claims of negligence against the City absent a special duty. It makes no sense. There is no rational basis for this disparate treatment. In fact, a claim remarkably similar to the claim regarding the failure to provide oxygen in this case was upheld against a private ambulance service in Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364 (l st Dept. 2007). The Court in that case granted the plaintiff leave to amend her pleadings to assert "an additional theory of negligence, i.e., that defendant failed to use the proper oxygenation device, a bag valve mask, during the period when plaintiff was trapped in the vehicle and was removed to the ambulance." Id. at 364-65. That is ostensibly what the EMTs in this case should have done for Tiffany in her apartment. Additionally, claims like the delay in transporting Tiffany to the hospital and the delay in calling for an ALS ambulance were recognized as supporting a finding of negligent medical care by a hospital in Nevarez v. New York City Health & Hosps. Corp., 248 A.D.2d 307 (1 st Dept. 1998). The Court held that the "jury could find as well that Union Hospital breached its duty of care in failing to arrange for an earlier ambulance to take Ms. Reyes to Jacobi Hospital." Id. at 309. That negligence applies to both delays by the EMTs in this case. Cherebin and Nevarez demonstrate that the claims against the City in this case stemming from the care and treatment provided by its EMTs fall squarely in the realm of proprietary functions rather than governmental functions, and that the only reason the special duty rule is even being raised is the happenstance that the 911 dispatcher sent a City ambulance rather than a private ambulance. It should further be noted that the City's assertion of the special duty doctrine based upon negligent care by its ambulance attendants is a relatively recent phenomenon. In Schempp, 19 N.Y.2d at 729, this Court affirmed ajudgment against the City based, in part, upon the negligence 32 of its ambulance attendants "in transporting the decedent to the hospital in that he was made to undergo the exertion of dressing and walking down steps to the ambulance." It did not even dawn on the City in 1967 to suggest that it should not be answerable for the negligent care of its ambulance attendants because there was no special relationship with the patient. This assertion is purely a product of the City becoming emboldened to try to expand that doctrine. There is no justification for expanding the special duty doctrine to encompass the claims in this case. As a matter of public policy, there is no reason to require the existence of a special duty in order to hold the City liable for negligent care and treatment by its EMTs once they have arrived on the scene. At that point, there exists an EMT -patient relationship, just like a physician-patient relationship. Such a relationship is required in order to give rise to a duty of care by the healthcare provider. See Cohen v. Cabrini Medical Center, 94 N.Y.2d 639, 642 (2000); Tenuto v. Lederle Labs .. Div. of Am. Cyanamid Co., 90 N.Y.2d 606, 612-14 (1997); Purdy v. Pub. Adm'r of County of Westchester, 72 N.Y.2d 1, 8 (1988). Once such a relationship exists, the concerns that gave rise to the special duty doctrine cease to exist. Those concerns are that governmental defendants would become insurers to their citizenry if they are subject to liability based upon a duty owed to the general public, and therefore a special relationship with an individual is required before the government can be held liable. See Valdez v. City of New York, 18 N.Y.3d 69, 75 (2011); Lauer v. City of New York, 95 N.Y.2d 95, 100-01 (2000). When the duty of care to the individual already exists by virtue of a physician-patient, paramedic-patient, or EMT -patient relationship, the concerns of liability flowing from a generalized duty of care to the public are completely eliminated. In its Appellate Division brief, the City addressed four Second Department cases involving negligence by EMS personnel-- Kowal v. Deer Park Fire Dist., 13 A.D.3d 489 (2nd Dept. 2004), 33 Joline v. City of New York, 32 A.D.3d 492 (2nd Dept. 2006), Fonville v. New York City Health & Hosps. Com., 300 A.D.2d 623 (2nd Dept. 2002), and Apostolakis v. Centereach Fire Dist., 300 A.D.2d 516 (2nd Dept. 2002) (Respondents' Briefin the Appellate Division, pp. 19-23). In the most recent of those cases, Kowal, 13 A.D.3d at 491, the Court found a "misfeasance with respect to medical treatment which is not a governmental function." In Fonville ,300 A.D.2d at 624, the Court found that no special duty was required based on the defendant's concession that once affirmative action "is voluntarily undertaken, it must be performed with due care" (see infra, Point II). In Joline, 32 A.D.3d at 494, the Court found that the City failed to establish its entitlement to summary judgment that "a special relationship did not exist." Only in Apostolakis, 300 A.D .2d at 516-17, did the Court find that a special duty was required and did not exist. Of those four decisions, only Kowal expressly addressed the applicability of the special duty doctrine in the context of proprietary versus governmental function, and it found the doctrine inapplicable because medical treatment is not a governmental function. To the extent that Kowal combined the proprietary issue and the misfeasance issue, the analysis of the law set forth above demonstrates that they are separate and distinct reasons for finding the special duty doctrine inapplicable. This Court's decisions addressing the applicability of the special duty doctrine in the context of governmental or proprietary functions do not assess misfeasance or nonfeasance as a factor -- that is a separate and distinct basis for determining whether the doctrine is inapplicable even if the function is governmental (see infrib Point II). The provision of medical care by EMTs or any ambulance attendants represents a clearly proprietary function that precludes the application of the special duty doctrine to the claims in this case, and the denial of summary judgment should be affirmed on that basis. 34 POINT II THIS CASE INVOLVES MISFEASANCE BY THE CITY'S EMTS TO WHICH THE SPECIAL DUTY DOCTRINE DOES NOT APPLY In its brief to the Appellate Division, the City expressly conceded that "plaintiffs are correct that acts of misfeasance may render the special duty doctrine inapplicable" (Respondents' Brief in the Appellate Division, p. 27). This contradicted the position it had taken on reply in the Supreme Court (339), but was consistent with the position it took in Fonville, 300 A.D.2d at 624 (see supra, pp. 17-18, 34). The City has not yet revealed what its position will be on that issue before this Court. In any event, it has been widely understood that even where a function is governmental in nature -- including the quintessential governmental functions provided by the police -- the special duty doctrine does not apply to misfeasance committed by a governmental actor. See Badillo v. City of New York, 35 A.D.3d 307, 308 (1 stDept. 2006); Haggertyv. Diamond, 251 A.D.2d455 (2nd Dept. 1998), Iv denied, 92 N.Y.2d 814 (1998); LaLondev. Hurteau, 239 A.D.2d 858,859 (3 rd Dept. 1997); Walsh v. Town of Cheektowaga, 237 A.D.2d 947 (4th Dept. 1997); Rodriguez v. City of New York, 189 A.D.2d 166, 172-73 (1 st Dept. 1993). As stated in Rodriguez, 189 A.D.2d at 172: The special duty rule is limited to cases involving nonfeasance, where the municipality is alleged to have failed to take action in breach of some general duty imposed by law or voluntarily assumed for the benefit of the public as a whole. As previously noted, we glean no basis from this Court's opinion in McLean for the Appellate Division's conclusion (403) that this rule applicable to misfeasance is no longer valid. The limitation on the special duty rule relative to misfeasance derives from the long standing principle that once affirmative action is undertaken, it must be performed with due care. See Parvi v. City of Kingston, 41 N.Y.2d 553,559 (1977); Wolfv. City of New York, 39 N.Y.2d 568, 573 35 (1976); Marks v. Nambil Realty Co., Inc., 245 N.Y. 256,258 (1927). As observed by Chief Judge Cardozo in Marks, 245 N.Y. at 258: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, ifhe acts at all" (Glanzer v. Shepard, 233 N. Y. 236, 239). The distinction in such cases is the old one between nonfeasance and misfeasance (Thorne v. Deas, 4 Johns. 84,96; Siegel v. Spear & Co., 234 N. Y. 479,483; Bohlen, Studies in the Law of Torts, p. 80). *** He is charged with liability because having chosen to perform he has thereby become subject to a duty in respect of the manner of performance. The connection between this principle and the absence of a need for a special duty in actions against governmental defendants involving misfeasance flows from the premise of the special duty doctrine that the government owes no duty of care to individuals based upon duties owed only to the public at large (supra, p. 33). There 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 with due care in so doing. Hence, in Wolf, 39 N.Y.2d at 573, this Court affirmed the City's liability for injuries resulting from negligent instructions given by one of its fireman, stating: Where a person voluntarily assumes the performance of a duty, he is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task (Marks v Nambil Realty Co., 245 NY 256, 258; Paul v Staten Is. Edison Corp., 2 AD2d 311, 325; McDonald v Central School Dist. No.3, 179 Misc 333, 335, affd 264 App Div 943, affd 289 NY 800; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 App Div 867). Similarly, in reinstating a negligence cause of action against a municipality based upon conduct by its police officers in Parvi, 41 N.Y.2d at 559, this Court observed: The case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care [citations omitted]. 36 This Court has applied this principle in holding municipal defendants liable for failing to obtain medical assistance once they took charge of a person. See O'Grady v. City of Fulton, 4 N.Y.2d 717 (1958); Dunham v. Village of Canisteo, 303 N.Y. 498 (1952). In Dunham, 303 N.Y. at 500-03, a 76 year-old man who appeared intoxicated and had fallen and injured his hip was taken to jail. He subsequently asked for a doctor, but the police chief delayed for several hours in calling for an ambulance. He was taken to the hospital, where he died several days later. In upholding the municipality's liability, this Court stated: Under the circumstances, the village authorities, having assumed charge of the deceased when he was incoherent and unable to represent himself, were under an obligation to exercise ordinary care. * * * The care required in the instant case included the procurement of medical assistance, if the village officials knew or should have known that the deceased was hurt or injured and in need of a doctor. (Slater v. illinois Cent. R. Co., 209 F. 480.) Id. at 502-03. This Court noted in a footnote within the above quoted language that "municipal corporations no longer enjoy sovereign immunity." Id. at 503, n.1 (citations omitted). O'Grady, 4 N.Y.2d at 717-18, similarly involved an apparently intoxicated man placed in a jail cell, and for whom the police delayed in obtaining medical assistance. The syllabus indicates that the plaintiff argued, "having assumed charge of decedent, the city authorities had a duty to exercise ordinary care, which included the procuring of medical assistance, and that the city authorities had failed to carry out that duty." Id. at 718. This Court affirmed the judgment in favor of the plaintiff without opinion. The principles of misfeasance and failure to proceed with due care once undertaking to act are of great significance with respect to the circumstances in this case. Those principles were applied by the Second Department in holding that the City and another municipal defendant were each subject to liability for negligent medical care by their respective ambulance attendants in Fonville 37 and Kowal, without any need for a special duty. As explained by the Court in Fonville, 300 A.D.2d at 624: The plaintiff commenced this action making essentially two allegations against HHC, first that EMS failed to timely respond to the scene, and second that the EMS workers rendered improper treatment. It is well recognized that a municipality is immune from negligence claims arising out of the performance of its governmental functions unless the injured person establishes a special relationship with the municipality which would create a special duty of protection with respect to that individual (see Kircher v City of Jamestown, 74 NY2d 251,255-256; Bonner v City of New York, 73 NY2d 930, 932; CuffY v City of New York, 69 NY2d 255,260). No such showing has been made here. However, as HHC correctly concedes, even when no original duty is owed to an individual to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (see Parvi v City of Kingston, 41 NY2d 553,559; Persaud v City of New York, 267 AD2d 220). Here, assuming EMS workers undertook the affirmative action to treat the decedent, they were required to do so with due care. Accordingly, to the extent that the complaint alleges that EMS workers improperly treated the decedent, the complaint should be reinstated. To the extent it charged EMS workers with nonfeasance the complaint was properly dismissed, as the plaintiff correctly concedes. Likewise, in Kowal, 13 A.D.3d at 491, the Court held: "[A ]ffirmative action, once it is voluntarily undertaken ... must be performed with due care" (Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 [2002]; see Parvi v City of Kingston, 41 NY2d 553,559 [1977]). Since the Deer Park Fire District defendants undertook the duty to treat the decedent, the question of whether there was a special relationship between the plaintiff's decedent and them is not applicable here (see Haggerty v Diamond, 251 AD2d 455 [1998]).6 Returning now to the City's position in this case, while conceding that the special duty doctrine is inapplicable where there has been a misfeasance, it argued in the Appellate Division that 6 As noted supra, p. 34, to the extent that Kowal also indicated that medical treatment is not a governmental function, that is a basis separate and distinct from misfeasance for not requiring a special duty. 38 the allegations of negligence asserted by the plaintiffs "all constitute failures to act appropriately, which is quintessential nonfeasance" (Respondents' Briefin the Appellate Division, p. 28). The City is wrong. A failure to act appropriately is a misfeasance. The distinction between a nonfeasance and a misfeasance is that in the former no action is taken at all, while in the latter action is taken but it is not the proper action or it is performed in an improper manner. As this Court explained in Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 552 (1992), nonfeasance is a "failure to perform a duty," and misfeasance is a "defective performance." In providing those meanings in Sommer, this Court cited to its earlier decision in Melodee Lane Lingerie Co. v. American Dist. Telegraph Co., 18 N.Y.2d 57 (1966), which found, in part, that the defendant alarm company, ADT, could be held liable for negligent repair of an alarm system. In reaching that holding, this Court stated: ADT would be under no obligation to plaintiff for breach of contract, as Special Term said, ifit had simply breached its agreement with the other defendants by failing to make any inspection of the alarm system (Rosenbaum v. Branster Realty Corp., 276 App. Div. 167). It has been held liable to plaintiff for the reason that it did make an inspection, and was negligent in failing to repair defects in the signal system thereby discovered and by not notifying the owner of the trouble. Id. at 63-64 (emphasis added). Notably, the opinion went on to cite Marks, supra. As the above language makes clear, once action is undertaken by the putative defendant, a failure to perform a specific required act while undertaking that action is a misfeasance. The mere fact that the negligence involves a "failure" does not render it a nonfeasance. The issue, once again, turns on the existence of a duty of care. By undertaking to act, the duty to do so with due care is extant. See Marks, supra, p. 36. At that point, anything the actor fails to do that he or she should have done is no longer a nonfeasance but a misfeasance. This goes directly to the heart of why a 39 special duty is not required when there is a misfeasance -- because the duty of care exists once action is undertaken such that a special duty is not required. It is now pertinent to examine the three allegations of negligence in this case. The first is the failure of the EMTs to bring oxygen with them to the Applewhite apartment when they alighted from the ambulance. This was a misfeasance because the EMTs knew they were responding to a call of difficulty breathing and left the ambulance to treat that condition without bringing oxygen. That is a classic misfeasance -- undertaking to treat difficulty breathing without bringing oxygen. The second act of negligence was their failure to immediately transport Tiffany to the hospital. Having responded to a call to treat difficulty breathing and having gone to the apartment and assessed the patient as being without respirations or pulse, the failure to properly treat the patient by immediately transporting her to the hospital is clearly a misfeasance. Indeed, they eventually took her there, but not until 37 minutes after they assessed her as being in that condition. That cannot be anonfeasance. Moreover, the evidence indicates that Ms. Applewhite asked the EMTs to please take her daughter to the hospital right away, and that they instead told her "they were waiting for the Paramedics" from the ALS ambulance (256). This is clearly a misfeasance -- deciding to wait for the paramedics rather than taking her to the hospital. It should be noted in this regard that in arguing that the plaintiffs had no choice but to wait once the EMTs decided that was what they would do (30- 33), the defendant is saying, in no uncertain terms, that the EMTs took charge of Tiffany and were in control. As such, their conduct was misfeasance,just as in O'Grady and Dunham. The third act of negligence was delaying for six minutes in calling for an ALS ambulance. It is impossible to conceive how this delay can be regarded as a nonfeasance. They did the act, but did it in an untimely manner. This is purely misfeasance. 40 It should be noted that the allegations concerning the EMS workers in Fonville were of the same nature as the allegations at issue here. The brief of the plaintiffs in that case listed numerous failures specified in the bill of particulars, including "failing to arrive at a proper differential diagnosis," "failing to administer proper medication," "failure to have and use proper equipment" and "failure to treat decedent's myocardial infarction," as well as "delaying medical treatment" (Fonville Plaintiffs-Appellants' Brief, p. 3). The Fonville plaintiffs specifically argued: ... the special relationship rule has no application to the claim that the EMS workers provided negligent medical treatment and/or delayed unnecessarily in diagnosing decedent's condition, providing emergency procedures, or transporting her for further treatment. (Fonville Plaintiffs-Appellants' Brief, p. 7). In response to this argument, the defendant, New York City Health and Hospitals Corporation (HHC), represented by the New York City Corporation Counsel, conceded that these allegations werenot subject to the special duty doctrine (Fonville Respondent's Brief, p. 6). The heading of Point II of the Fonville Respondent's Brief reads, "TO THE EXTENT THAT PLAINTIFF IS CLAIMING THAT THE EMS WORKERS WERE AFFIRMATIVELY NEGLIGENT IN TREATING THE DECEDENT AFTER THEY ARRIVED ON THE SCENE, NO PROOF OF A SPECIAL DUTY IS REQUIRED" (Fonville Respondent's Brief, p. 6). Moreover, the substance of that Point was a single paragraph, stating: While, in general, absent a special duty to an individual, a public entity may not be held liable for the negligent exercise of a governmental function, once a public entity takes an individual into its control and custody, it has a duty to that individual to exercise due care. SeeParvi v. City of New York, 41 NY2d 553, 559 (1977). Thus, to the extent that plaintiff is claiming that the EMS workers negligently treated her mother after they arrived on the scene, we concede that her complaint should not have been dismissed based on the lack of a special duty owed to the decedent. 41 Thus, the same type of negligence that the City and Corporation Counsel is arguing to be nonfeasance here was admitted by HHC and Corporation Counsel in Fonville to be misfeasance and not subject to the special duty doctrine. The City's position in this case is simply untenable. POINT III THE APPELLATE DIVISION PROPERLY FOUND THAT THE DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF WHETHER THERE WAS A SPECIAL DUTY For the reasons set forth above, no special duty is required in this case for the plaintiffs to be able to recover for the injuries caused by the negligence of the City's EMTs. However, even if a special duty were required, the record in this case presents issues of fact in that regard, and summary judgment was not appropriate on that issue. The circumstances described by Ms. Applewhite establish issues of fact as to reliance. Equally important, the defendant's moving papers failed to demonstrate the absence of any issues of fact as to her justifiable reliance, and therefore did not satisfY the City's burden in moving for summary judgment on that issue. In apparent recognition of that failure, the City is arguing in this Court for the first time that summary judgment should be granted because the plaintiffs failed to plead a special relationship or a special duty. That argument, which was not made by the defendant in the motion court or in the Appellate Division, is not preserved for review by this Court. It is most significant for its tacit acknowledgment that its moving papers were insufficient to support summary judgment on the issue. (A) The City's Argument Concerning The Failure to Allege a Special Duty in the Pleadings Is Unpreserved for Review by this Court In Point I of its brief to this Court, the City argues that the complaint should be dismissed because the plaintiffs never alleged that the City had assumed a special duty (Appellants' Brief, pp. 42 27-28). The City never made this argument in either of the lower courts, and it is improperly being raised for the first time in this Court. The City's motion for summary judgment was brought pursuantto CPLR 3212 (13-18). The City did not move pursuant to CPLR 3211, and it never asserted anywhere in its motion that plaintiffs' complaint failed to state a cause of action or that the pleadings were in any manner deficient (15-45). Instead, the City affirmatively raised the special duty doctrine as the basis for dismissal, arguing that such a duty was required in this case, and that there were no issues of fact that a special duty existed (17-18, 28-35). Nor did the City argue on reply that the complaint should be dismissed because it failed to allege a special duty, but only that the doctrine is applicable and that plaintiffs had not established an issue of fact (336-40). In responding to plaintiffs' appeal to the Appellate Division, the City did not argue that the plaintiffs had failed to allege a special duty (see Respondents' Briefin the Appellate Division). The City's arguments relative to special duty were that the doctrine was applicable (id. at pp. 17-30), that it met its prima facie burden of showing an absence of issues of fact regarding the existence of a special duty @. at pp. 30-32), and that the plaintiffs failed to establish the existence of an issue of fact (id. at pp. 33-36). Under these circumstances, the City's argument that the complaint should be dismissed because the plaintiffs failed to allege that the City had assumed a special duty is unpreserved for review by this Court. This Court has time and again made clear that it will not decide issues that have not been raised at the trial or motion level, and have not been briefed in the Appellate Division. See Misicki v. Caradonna, 12N.Y.3d511, 519 (2009); Binghamv. New York City Transit Auth., 99N.Y.2d355, 359 (2003); Fischerv. Zepa Consulting AG., 95 N.Y.2d 66,71, nA (2000); Hapletah v. Assessor of Town of Fallsburg, 79 N.Y.2d 244, 252 (1992); Matter of Nicole V., 71 N.Y.2d 112, 120, n.2 43 (1987); County of Nassau v. Cuomo, 69 N.Y.2d 737, 740-41 (1987); Utica Mut. Ins. Co. v. Prudential Prop. and Cas. Ins. Co., 64 N.Y.2d 1049, 1050 (1985). This Court explained the importance ofthe preservation rule in Bingham, 99 N.Y.2d at 359: As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal. Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice. A new issue - even a pure law issue - may be reached on appeal only if it could not have been avoided by factual showings or legal countersteps had it been raised below (see Telaro v Telaro, 25 NY2d 433, 439 [1969]). The sound policy reasons that underlie this principle are especially acute when the new issue seeks change in a long-established common-law rule. These are not empty technicalities. Rather, they are "at the core of the distinction between the Legislature, which may spontaneously change the law whenever it perceives a public need, and the courts which can only announce the law when necessary to resolve a particular dispute between identified parties" (Lichtman v Grossbard, 73 NY2d 792, 795 [1988]). Moreover, in making and shaping the common law - having in mind the doctrine of stare decisis and the value of stability in the law - this Court best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts. This rule applies to arguments addressed to sufficiency of pleadings. In McClelland v. Mutual Life Ins. Co. of New York, 217N.Y. 336, 348 (1916), where "[n]o motion on the ground that waiver or estoppel had not been pleaded was made to dismiss the complaint," this Court held that "the objection cannot be raised for the first time upon appeal." Clearly, the City's argument that the plaintiffs failed to allege that the City had assumed a special duty is being raised in this Court for the first time and, therefore, should not be addressed by this Court. It should further be noted that the defendant was not remotely prejudiced by the absence of allegations of a special duty, since it affirmatively raised the issue in its motion. Under these circumstances, a motion to amend the pleadings eventually should be granted, if necessary. 44 (B) The City Failed to Meet its Prima Facie Burden of Demonstrating the Absence of Issues of Fact Regarding a Special Duty It is well settled that the proponent of a summary judgment motion is required to make a prima facie showing of entitlement to judgment as a matter oflaw by tendering sufficient evidence to demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion irrespective ofthe sufficiency ofthe opposing papers. See Smalls v. All Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373,384 (2005); Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993); Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982,985 (1993); Alvarez v. Prospect Hosp., 68 N.Y.2d 320,324 (1986); Wine grad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). This Court's frequently cited opinion in Alvarez, 68 N.Y.2d at 324, explains: As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med Center, supra, at p 853). To the extent pertinent on this appeal, the defendant City moved for summary judgment in this case arguing that there were no issues of fact as to whether it owed a special duty to Tiffany Applewhite (28-35). Therefore, in order to sustain its burden in seeking such relief, the City was required to tender sufficient evidence to demonstrate the absence of any material issues of fact as to the existence of a special duty to Tiffany. Four elements must be present for a special duty to exist: 45 "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987] [citations omitted]). Valdez, 18 N.Y.3d at 80; see also McLean, 12 N.Y.3d at 201. As to the first element -- an assumption through promises or actions of an affirmative duty to act -- the City argued, through its attorney, as follows (29): With respect to the first prong of the Cuffy standard, even assuming, arguendo, that the City can be deemed to have provided an assurance to dispatch an ambulance in a timely fashion, it acted in accordance with that assurance by sending a BLS unit, which arrived six minutes after the first 911 call. Thus, the City did not breach any putative duty with respect to provision of a BLS ambulance. Thus, the City neither argued nor attempted to establish that the first element did not exist with respect sending an ambulance. Instead, it merely argued that it satisfied that duty by an ambulance arriving in six minutes. The City then addressed the first special duty element in relation to plaintiffs' allegations about failing to timely intubate and to administer epinephrine, arguing that those allegations "amount to an allegation that the City should have sent an ALS unit in response to the first call," and that ''the City never promised to send an ALS ambulance and, thus, did not assume a duty to do so" (29-30). However, since those claims are no longer being advanced in this case, the defendants' submissions with respect thereto are irrelevant on this appeal. Notably, even on reply -- after the plaintiffs specified the three departures they are claiming (251) -- the defendant failed to submit any proof tending to establish that it had not assumed an affirmative duty to act (336-40). Accordingly, the defendant failed to demonstrate the absence of 46 any material issues of fact concerning the first element, and did not establish its entitlement to summary jUdgment on that basis. This is important, because the defendant is arguing to this Court that its EMTs' response to Ms. Applewhite's request to take her daughter to the hospital was not an assurance or guarantee of her daughter's safety (Appellants' Brief, pp. 30-31). That argument cannot support summary judgment, because the City never sustained its burden in moving on that issue. The City did not address the second or third special duty elements either in the motion court or on appeal. Instead, its primary focus both in the motion court and the Appellate Division was with reference to the fourth element -- the plaintiffs' justifiable reliance. As noted supra, p. 13, the City's argument concerning the reliance element was that the patient had no alternative available and no other means of obtaining assistance (33-35). However, the City submitted no evidence whatsoever in support of those assertions. Initially, relative to the allegations about failing to propedyrespond to the 911 call (31-33), defense counsel asserted (33): '" here, circumstances were such that Nurse Russo had to perform CPR continuously or the patient surely would have died or suffered profound brain damage, which apparently is what happened despite her efforts. No alternative was available but to continue CPR and wait for an ambulance to arrive. It would have been impossible for Nurse Russo and the patient's mother, even with help from neighbors and relatives, to have carried the patient from the apartment, down the elevator, into a vehicle and to the hospital - all while performing effective CPR. It was particularly unlikely that adequate CPR could have been performed in any size car other than possibly, a van or minivan. And once en route they could not have used lights and sirens the wayan ambulance can, thereby increasing the time it would have taken to reach the hospital. Regarding allegations addressed to the EMTs once they arrived, the attorney asserted (34): Similarly, no special duty was established when the BLS crew arrived on the scene. All of the above facts remained the same: the 47 patient, because of her unfortunate circumstances, did not forego another means of obtaining assistance. Relative to the failure to bring an ambubag and oxygen to the apartment, defense counsel argued that "the patient and her mother did not justifiably rely on any assurance that these items would be provided and more importantly because the patient was in extremis there was no alternative means of obtaining assistance that the patient and mother forewent" (35). None of these assertions by defense counsel that the patient and her mother had no alternatives were established with evidence. The defendant did not annex to its motion any deposition testimony from Ms. Applewhite or nurse Russo establishing those assertions. There is nothing indicating that Ms. Applewhite did not have a car at her disposal in which to rush her child to the hospital while the nurse continued to try to resuscitate her. There is no evidence that Ms. Applewhite had no friends or neighbors to tum to for help in this emergency. The defendant's entire argument regarding the reliance element was pure conjecture by the attorney, without any evidentiary showing demonstrating the absence of issues of fact. This is patently insufficient to establish the defendant's entitlement to summary judgment on the reliance issue, and it required the denial of the City's motion regardless of the papers submitted in opposition. In finding that the party moving for summary judgment failed to satisfy its burden in JMD Holding Corp., 4 N.Y.3d at 384-85, this Court, after noting the movant must tender evidence sufficient to demonstrate the absence of issues of fact, stated: In this regard, CPLR 3212 (b) provides that a summary judgment motion "shall be supported by affidavit" of a person "having knowledge of the facts" as well as other admissible evidence (see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]). A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden (see e.g. Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]). 48 The conclusory affidavit of JMD's president, which relied entirely on the memorandum oflaw prepared by JMD' s attorney, provides no factual basis to support any conclusion that the early termination fee was an unenforceable penalty (see e.g. Bush v St. Clare's Hosp., 82 NY2d 738 [1993 D. JMD presented no proof to show that Congress's prospective damages upon early termination were capable of precise estimation at the time the parties executed the Agreement, or that the early termination fee was grossly disproportionate to this probable loss. Similarly, in Ayotte, 81 N.Y.2d at 1063, after quoting Alvarez, this Court observed: Here, in support of their summary judgment motion, movants merely assert that defendant's negligent operation of his vehicle was the sole proximate cause of plaintiff s injuries and that no triable issues offact existed. These conclusory assertions are insufficient to demonstrate the absence of any material issues of fact. This Court's opinion in Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29 (2011) is further instructive. That decision involved a products liability action stemming from burns sustained by the plaintiff when a drain cleaner, RDL, which was 100% sodium hydroxide -- pure lye -- splashed out of the drain and into his face. In moving for summary judgment, the manufacturer argued "that lye is what it is, that everyone knows lye is dangerous, and that any variation in RDL's composition would, by necessity, result in a different product because such an altered product would not be 100% sodium hydroxide." Id. at 33. In response to that assertion, this Court stated: While it is true that lye is dangerous and that this product is lye, a mere statement in an attorney's affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could have been made safer. In holding that the defendants failed to establish their entitlement to summary judgment, this Court stated: 49 Id. at 34. On this motion ... merely stating in an attorney's affirmation that RDL is dangerous, that everyone knows it is dangerous, and that precise warnings of its danger were given and not followed was insufficient to entitle defendants to summary judgment as a matter of law. Defendants were required to demonstrate that RDL was reasonably safe for its intended use, but they offered no such evidence. As further noted by Judge Smith in his concurring opinion, "the initial burden to make an evidentiary showing on summary judgment rests on the moving party ," and the moving defendants in that case failed to meet that burden because they "relied simply on a statement in an attorney's affirmation" that the product could not be designed differently without making it a completely different product. Id. at 35-36. It is thus clear that a party moving for summary judgment does not satisfy its burden by relying on conclusory statements and factual assertions by its attorney without evidentiary support. See also Cauthers v. Brite Ideas. LLC, 41 A.D.3d 755 (2nd Dept. 2007). Yet, that is precisely what the City did in this case relative to the reliance element of the special duty rule. Defense counsel made assertions that the patient and her mother had no alternatives, but tendered no evidence establishing those assertions to be true. As such, the defendant failed to demonstrate the absence of issues offact relative to justifiable reliance, requiring the denial ofits motion on that issue regardless of the plaintiffs' opposition papers. As we have previously noted, the City appears to have come to the realization that its moving papers were devoid of an evidentiary showing on this issue, and has therefore raised the argument that plaintiffs did not plead a special duty. They also now assert that the affirmation of their expert proves that "no such alternative could have been viable" (Appellants' Brief, p. 37). However, that affirmation was not at all addressed to special duty or to Ms. Applewhite's reliance. 50 Instead, Dr. Mustalish's affirmation was addressed to the defendant's proximate cause argument, which was expressly rejected by the Appellate Division (406) and which the defendant has not raised on this appeal. The City nevertheless seeks to contort this proximate cause evidence into proof of no alternatives by arguing that "Tiffany would presumptively have been placed in a worse position if alternate transport had been attempted due to deprivation of continuous CPR" (Appellants' Brief, p. 37). The fact remains, this evidence never addressed Ms. Applewhite'S reliance or her ability to get her daughter promptly to the hospital, and cannot be transformed into such when the defendant belatedly recognizes the deficiency in its moving papers. Moreover, Dr. Mustalish's opinion of the timing upon which the City relies was conc1usory and premised on a one-sided view ofthe evidence. It was his opinion that it would have taken "some time" to get the patient into the ambulance, "longer than a lay person might expect," and that therefore "the EMTs could not have gotten the patient into their ambulance and pulled away by the time the ALS ambulance arrived" (58-59). The expert specifically noted that the BLS team had taken vital signs at 11 :21 and that the ALS ambulance arrived outside at 11 :32 (58), such that he was saying it would have taken them eleven minutes from the time they assessed this child as being without respirations or pulse to get her into the ambulance. He said this even though the EMTs got from their ambulance into the apartment and completed their assessment in only one minute. The Appellate Division properly found that this expert opinion failed to dispel issues of fact as to causation, finding "triable issues regarding whether the infant plaintiff s brain damage could have been altogether avoided" (406-07). Regardless, nothing in Dr. Mustalish' s affirmation addresses whether Ms. Applewhite could have taken her daughter from the apartment to the hospital had she known that an ALS ambulance 51 would not provide her daughter with oxygen for another 20 minutes. The City simply failed to sustain its burden of proof on that issue. (e) The Circumstances and the Evidence Before the Court Establish Issues of Fact to be Resolved by a Jury Regarding a Special Duty If the special duty doctrine applies to the plaintiffs' claims in this case -- and it does not for the reasons set forth in Points I and II -- and if the defendant had satisfied its burden in moving for summary judgment on that issue (which it did not), the facts and circumstances in the record clearly establish issues of fact regarding the first and fourth elements of the doctrine. The first element of a special duty is '''an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured .... '" Valdez, 18 N.Y.3d at 80, quoting, Cuffy v. City of New York, 69 N.Y.2d 255,260 (1987). There can be no question that there was such an assumption in this case through both the actions and words of the EMTs. First, they arrived at the Applewhite home in response to the distress call and proceeded to evaluate and treat Tiffany, such that they assumed an affirmative duty by taking action on her behalf -- indeed, the taking of this action actually removes the case from the special duty doctrine altogether for the reasons set forth in Point II, supra. Second, they indicated that they would call for an ALS ambulance (114), which was an assumption of an affirmative duty by words and subsequently by action -- however, they inexplicably delayed making that call for six minutes (a clear misfeasance). Third, they told Ms. Applewhite that they would wait for an ALS ambulance rather than taking Tiffany to the hospital and continued to administer CPR, which also represents an assumption of duty to act in Tiffany's best interest by both words and actions (the delay in taking her to the hospital representing another misfeasance). 52 Under these circumstances, it cannot seriously be argued that the first special duty element was not satisfied. In attempting to articulate such an argument the City simply ignores the legal standard. It argues that there must be a verbal assurance or promise (Appellants' Brief, pp. 30-31). However, the law is clear a duty may also be undertaken by actions. McLean, 12 N.Y.3d at 201, upon which the City mistakenly relies, expressly noted that "Ms. McLean points to no 'promises or actions' by which the City assumed a duty to do something .... " That the EMTs gave Ms. Applewhite no specific time by which the ALS ambulance would arrive (Appellants' Brief, pp. 30-31) is utterly superfluous -- the clear import of their actions and their words was that it would be better for Tiffany to wait for the ALS than for the EMTs to take her to the hospital. Further, while they never told her a specific time by which the ALS ambulance would arrive, neither did they tell her that they would delay for six minutes in calling for it. The City's arguments concerning the first element are patently lacking in merit. The fourth element of a special duty is the "'justifiable reliance on the municipality's affirmative undertaking. '" Valdez, 18 N. Y.3d at 80, quoting, Qillfy, 69 N. Y.2d at 260. The decision of the Appellate Division cogently describes why the circumstances in this case present an issue of fact as to whether Ms. Applewhite justifiably relied on the EMTs once they arrived (405-06): The record reflects that the mother asked 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. 53 In other words, from the moment they arrived, the EMTs were in control 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. If they said that waiting for an ALS ambulance rather than taking Tiffany to the hospital was the way to go, Ms. Applewhite had no choice but to rely upon that. However, if the EMTs had told her at 11 :21 when they were treating Tiffany (218), that the ALS paramedics would not be providing any treatment until 11 :41 (333), while the hospital at which she worked was two miles away (256, 322), Ms. Applewhite would have had a choice and would not have been at their mercy. Having been deprived of this opportunity to act on her own, it cannot be said as a matter of law that Ms. Applewhite would have done nothing if she had known there would be this lengthy delay while her daughter desperately needed oxygen. In addition, Ms. Applewhite justifiably relied upon the EMTs to call for ALS assistance immediately. If she had been told that EMT Mueller would delay in making that call for six minutes, all she had to do was place the call herself -- just as she had done earlier, twice. Ms. Applewhite placed the second call to 911 at 11 :21 (213), by which time the BLS ambulance arrived (169), and they evaluated her within the minute (218). If the EMTs told her that they would wait for an ALS ambulance but were not calling for it until 11 :27, as they did (213), Ms. Applewhite had every opportunity to place the call herself, and she would certainly have done so. 54 CONCLUSION FOR ALL OF THE REASONS SET FORTH ABOVE, THE ORDER OF THE APPELLATE DIVISION REINSTATING THE COMPLAINT AGAINST THE APPELLANTS SHOULD BE AFFIRMED Dated: New York, New York July 23, 2012 Matthew Gaier, Esq. Thomas A. Moore, Esq. and Norman Bard, Esq. Of Counsel and on the Brief 55 Respectfully submitted, Kramer, Dillof, Livingston & Moore By:Jke:~ P'Matti1eWGaier Attorneys for Plaintiffs-Respondents 217 Broadway New York, NY 10007 (212) 267-4177