Lawrence S. Wasserman and Nicholas J. Ajello recently obtained dismissal of a wrongful death claim on behalf of The City of New York, New York City Police Department, New York City Fire Department and the City of New York Department of Health and Mental Hygiene in Supreme Court, Queens County.
The case, Lois M. Rosenblatt v. The City of New York, et. al. (Index No. 5798/2013), involved plaintiff’s-decedent, a then 96-year old female who was under the care of a private home health aide. When the decedent started choking on food fed to her by the home health aide, the aid called an ambulance and was provided instructions on what to do, but by the time the ambulance arrived, the decedent had become anoxic and fell into a persistence vegetative state before ultimately passing away.
Plaintiff alleged the City failed to give the home health aide appropriate instructions, failed to properly dispatch an ambulance and erroneously characterized the 911 call as DOA as well as other claims of negligence and medical malpractice.
We moved for summary judgment arguing the City was engaged in a governmental function when it provided 911 referral and emergency medical service responses, and thus, could not be held liable for its emergency actions unless it owed the decedent a special duty. We argued that no special duty existed since the City did not voluntarily assume a special relationship with the plaintiff’s decedent beyond the duty that is owed to the public generally.
The Supreme Court, Queens County granted our motion for summary judgment dismissing all claims when it agreed with our position that the City was engaged in a governmental function when it provided emergency medical services to the plaintiff’s-decedent and agreed that no special duty of care existed between the City and plaintiff’s-decedent based on the instructions provided to the aide.