The following papers numbered 1 to 10 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4-6

Reply Affidavits (Affirmations)7

Plaintiffs' Supplemental Affirmation8

City's Affirmation in Further Support of its Motion9

Plaintiffs' Memorandum of Law10

In this wrongful death action by plaintiff Cynthia Rennix (Cynthia), as administrator of the goods, chattels and credits which were of Eutisha Rennix (Rennix), deceased, and plaintiff Harry Woodson (Harry), as administrator of the goods, chattels and credits which were of Janiyah Renee Woodson Rennix, sued herein as Janiyam Renee Woodson Rennix (Janiyah Renee), deceased (collectively, plaintiffs) against defendants Melissa Jackson (Jackson), Long Island College Hospital (LICH), and the City of New York, sued herein as New York City Fire Department (FDNY), New York City Emergency Medical Services (EMS), and the City of New York (collectively, the City), the City moves for an order, pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs' complaint in its entirety as against it and any and all [*2]cross claims as may be asserted as against it.

On December 9, 2009, Rennix, who was then 25 years old and six months pregnant, was working as a cashier in the Au Bon Pain restaurant located at One Metrotech Center in downtown Brooklyn. Shortly before 9:00 A.M., Rennix informed her co-worker Lourdes Colon (Colon) that she felt dizzy and nauseous, and that her stomach was hurting her (Colon's Dep. Transcript at 11-12). Colon accompanied Rennix from the customer service area to a separate room in the back of the restaurant (Id. at 13). Once in this back room, Rennix first began to complain of difficulty breathing (Id. at 14). Colon left the room to get Rennix some seltzer to drink, believing her pain to be associated with gas (Id. at 13, 15). While Colon was getting seltzer for Rennix, she reported that Rennix was not feeling well to her boss, Dwight Vaccianna (Vaccianna), who was the general manager of the Au Bon Pain restaurant (Id. at 15). Colon, at first, thought that it did not look that serious because Rennix "complained a lot so nobody thought a lot of it" (id.). When Colon returned to the room, she saw Rennix using one of the inhalers that she carried with her at all times for her asthma (Id. at 16).

According to Colon, Vaccianna came to the back room of the Au Bon Pain restaurant and asked Rennix if she wanted to go home, and Rennix told him that she wanted to go to the hospital and to call an ambulance (Id. at 15). Colon then went to the customer service area of the restaurant where she saw Jackson and Jason Green (Green), who she recognized as EMS workers by their uniforms, standing at the sandwich bar (Id. at 17-18). Colon calmly told them that she had an employee in the back of the restaurant, who was unable to breathe, and asked them to call an ambulance (Id. at 18-19). Colon saw Jackson take out her cell phone, but she did not say anything to her and Colon did not hear Jackson have any conversation (Id. at 19). According to Colon, since she did not get any response from Jackson or Green, she went straight back to the back room of the restaurant to have Vaccianna call the ambulance (Id. at 20). Colon told Vaccianna that she did not know if Jackson was calling an ambulance or not, and Vaccianna called 911 (Id. at 17).

According to Vaccianna, he saw that Rennix was not feeling well and accompanied her to the back of the Au Bon Pain restaurant with Colon (Vaccianna's Dep. Transcript at 9-12). He observed Rennix using her asthma inhaler and that she was having trouble breathing (Id. at 10). He then went out to the front of the restaurant where he saw two individuals, i.e., Jackson and Green, wearing EMT uniforms standing at the sandwich bar (Id. at 14-15). He claims to have told them that he had an employee in the back room and that she was having a severe asthma attack (Id. at 10, 16). He then observed Jackson pick up her cell phone, but did not hear her conversation (Id. at 16-17). He returned to the back room to see Rennix, who was still conscious at that time, but was having more difficulty breathing (Id. at 17). He called 911 and the 911 operator told him that 911 had already received the call about Rennix and that an ambulance was on its way (Id. at 19).

According to both Colon and Vaccianna, Jackson and Green never came into the back room at any point to see Rennix (Colon's Dep. Transcript at 28; Vaccianna's Dep. Transcript at 20). Jackson and Green were FDNY emergency medical technicians (EMTs), who were not assigned to an ambulance unit in the field, but, instead, were stationed in the EMS dispatch center, where they handled incoming 911 calls and dispatched ambulances to respond to those [*3]calls. The dispatch center was located in the same building as the Au Bon Pain restaurant. Neither Jackson nor Green had any equipment with them when they entered the restaurant (Vaccianna's Dep. Transcript at 21-22).

According to Jackson, she was on a break with her co-worker, Green, at the Au Bon Pain restaurant when an employee, Colon, told her that she needed her to call 911 for Rennix, who needed an ambulance because she had asthma (Jackson's Dep. Transcript at 40, 51-54). She then called the Brooklyn Central Dispatch Board and spoke to Raul Perez, a dispatcher (Id. at 55-56). A transcript of the 911 call placed by Jackson at 9:13 A.M. recorded Jackson requesting an ambulance for a pregnant female who was complaining of trouble breathing. At that time, according to the FDNY Computer Aided Dispatch Report (CAD), a basic life support (BLS) unit ambulance operated and staffed by LICH EMTs, William Martinez (Martinez) and Robert Suarez (Suarez), was assigned to the Au Bon Pain restaurant as a result of Jackson's telephone call.

Jackson denies that Vaccianna ever spoke to her about Rennix (Jackson's Dep. Transcript at 65). According to Jackson, when Colon told her that Rennix needed an ambulance, she did not consider going to assess her because she was a dispatcher and did not have the proper equipment to assess a patient (Id. at 65-68). After Jackson finished speaking to the dispatcher on her cell phone, she and Green remained in the restaurant for a few minutes while Green was waiting in line to pay for his sandwich and then they left without ever seeing Rennix (Id. at 58-59, 64).

At 9:19 A.M., Vaccianna called 911. A transcript of this 911 call recorded that Vaccianna similarly reported a female with trouble breathing, and that Vaccianna further stated that she had asthma, and he was told that this request for an ambulance was called in already.

After Vaccianna had called 911, Rennix lost consciousness (Vaccianna's Dep. Transcript at 19). At 9:22 A.M., an FDNY advanced life support (ALS) unit ambulance, which was staffed by paramedics Stephen Rogers (Rogers) and Lothaire Germain, Jr. (Germain), was assigned to go to the Au Bon Pain restaurant and it left to go there. According to Rogers, if a BLS unit were closer than an ALS unit to the assignment, the dispatcher would send the BLS unit over to start basic treatment until the ALS unit could arrive if the ALS unit were needed (Rogers' Dep. Transcript at 55).

At 9:24 A.M., the BLS unit arrived at the Au Bon Pain restaurant first with EMTs Martinez and Suarez. At 9:24 A.M., a third 911 call was made by a FDNY firefighter, who stated that a woman was having a really severe asthma attack inside of the Au Bon Pain restaurant and that she was unconscious, and he was told that the ambulance would be there in a minute. EMTs Martinez and Suarez, upon arriving at the Au Bon Pain restaurant, found Rennix without respirations, without blood pressure, and in cardiac arrest on the floor of the room in the back of the restaurant (Martinez's Dep. Transcript at 31, 33; Suarez's Dep. Transcript at 37). At 9:26 A.M., these EMTs began to perform CPR on Rennix (Id. at 33).

At 9:28 A.M., the ALS unit arrived at the scene, and, at that point, Rennix was still unconscious and in the back room (Rogers' Dep. Transcript at 69). Jackson and Green were no longer present when Rogers and Germain arrived (Id. at 76). The BLS crew, Martinez and Suarez, informed the paramedics, Rogers and Germain, that they believed that Rennix, who had already been placed on the BLS unit's stretcher, was in cardiac arrest (Id. at 70). The decision was made to remove Rennix from the restaurant and the stretcher was raised (Id. at 77). With [*4]Rogers standing on the bottom rails of the stretcher doing chest compressions, one of the EMTs performing ventilations, and the other two EMS personnel pushing the stretcher, the group was led by a security guard out of the restaurant via a back exit to the waiting BLS ambulance (id.). Once inside the ambulance, Rennix was successfully intubated on one try, defibrillated twice, and given the heart-starting medications atropine, epinephrine, and vasopression (Id. at 96-105). Despite these efforts, Rennix's pulse never returned and Rennix remained unresponsive, and her status did not change or improve while in the ambulance (Id. at 118).

Rennix was transported to LICH at approximately 9:53 A.M. with both paramedics in the back of the ambulance tending to her. According to LICH's emergency department records, the EMS crews delivered Rennix to LICH at approximately 9:58 A.M. The medical staff at LICH was unable to resuscitate Rennix and pronounced her dead at 10:17 A.M. while simultaneously delivering her female child, Janiyah Renee, by emergency cesarean section. Although Janiyah Renee was successfully delivered, she died at 12:10 P.M. After an autopsy, it was determined that the cause of Rennix's death was acute and chronic bronchial asthma.

This incident was the subject of media attention and news articles, which criticized the fact that Jackson merely called an ambulance instead of affirmatively coming to the aid of Rennix by going into the back room of the Au Bon Pain restaurant to examine and provide emergency care to her in her capacity as an EMT. Former Mayor Michael Bloomberg was quoted as remarking that he "d[id not] kn[o]w whether what was reported [wa]s accurate, but if you assume that it [wa]s, it was unconscionable [and an] outrage." He further commented that even if Jackson and Green "weren't part of the Fire Department, just normal human beings [should] . . . go help someone if they're dying."

On March 4, 2010, Cynthia, who was Rennix's mother, and Harry, who was Rennix's fiancé, served notices of claims on the City. On January 11, 2010, letters of administration were issued to Harry, on behalf of Janiyah Renee, and on August 24, 2010, letters of administration were issued to Cynthia, on behalf of Rennix. On September 1, 2010, Cynthia and Harry, as the administrators of the estates of Rennix and Janiyah Renee, respectively, filed this action against the City, LICH, and Jackson.^[FN1]

Plaintiffs' complaint alleged that the City, by virtue of its operation of EMS, "held itself out to the public at large . . . as an entity duly qualified and capable of rendering timely and adequate emergency response, care and treatment to the public at large and for such purposes, hired technicians . . . and other personnel." It further alleged, among other things, that the City was negligent in "failing and refusing to provide emergency medical care and treatment to . . . Rennix," "in failing to provide proper care, . . . in dispatching an ambulance incapable of rendering necessary medical care," and "in failing to appreciate the significance of . . . Rennix's signs, symptoms, complaints, and medical history."

Plaintiffs' first cause of action alleged that the defendants were careless and negligent in the medical care and treatment rendered to their decedents, through their employees, including Green and Jackson, in, among other things, failing and refusing to provide emergency medical care and treatment to Rennix, ignoring requests for medical care and/or assistance, failing to [*5]respond to requests for medical care and/or assistance, neglecting the duties of an EMT, neglecting the duty to respond, failing to attend to Rennix, failing to provide emergency assistance to Rennix, ignoring Rennix, failing to act in an emergency situation despite the taking of an oath by these EMTs to do so and having a duty and obligation to do so, failing to act while on a break, leaving the scene of a medical emergency, abandoning Rennix who was in need of emergency aid, failing to take proper steps to prevent Rennix's conditions from worsening, failing to take measures to ensure that Rennix would be transported to a hospital in a timely manner, failing to provide proper information to emergency dispatchers, failing to ensure that an ALS ambulance was dispatched to render medical care and/or assistance to Rennix, and dispatching a BLS ambulance incapable of rendering necessary medical care and treatment to Rennix. Plaintiffs' second cause of action alleged a claim for lack of informed consent. Plaintiffs' third cause of action alleged a claim of loss of society and services with respect to Rennix. Plaintiffs' fourth cause of action alleged negligence with respect to Janiyah Renee, and plaintiffs' fifth cause of action alleged loss of society and services with respect to Janiyah Renee.

Upon learning of the incident regarding Rennix, EMS Chief Abdo Nahmod (Nahmod) referred the matter to the Confidential Complaint Unit of the Bureau of Investigations and Trials. On October 12, 2010, Nahmod met with Assistant District Attorney Kevin Richardson (Assistant District Attorney Richardson) and Detective Investigator Gregg Cherry (Detective Cherry), at which time they discussed the roles and responsibilities of EMTs, which included reviewing the EMS Command Operating Guide Procedures.

The General Regulations of the EMS Command Operating Guide Procedures (EMSC OGP) 101-01 provides, in section 1.1, that the purpose of these regulations is "[t]o set forth standards of conduct for all members of the EMS Command." Under the heading "Member Code of Conduct," section 3.1 provides that "[t]he FDNY is a public safety service whose members must perform their duties according to the highest possible standard of conduct and ethics," and that "[t]his prescribed code of conduct is set forth to provide guidelines and define certain infractions, which are deemed serious and may result in corrective and/or disciplinary action." This section further states that "[e]ach member is responsible for adhering to these guidelines and each Supervisor is responsible for their enforcement." Under the heading "Responsibilities," section 4.1.15, which is known as the flag down rule, provides that "[m]embers of the EMS Command, regardless of job title or rank, shall . . . [a]cknowledge and provide treatment to all flag down assignments, advising the dispatcher as soon as possible."

At the time of Nahmod's meeting on October 12, 2010 with Assistant District Attorney Richardson and Detective Cherry and after reviewing the EMS Command Operating Guide Procedures, including the flag down rule, with them, he executed a corroborating affidavit to a criminal complaint filed against Jackson in a criminal action entitled People of the State of New York v Jackson (Case # 2010KN080907 [Criminal Court, Kings County]), in which Jackson was criminally charged with official misconduct under Penal Law § 195.00 (2). Penal Law § 195.00 (2) provides that "[a] public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit . . . [h]e [or she] knowingly refrains from performing a duty which is imposed upon him [or her] by law or is clearly inherent in the nature of his [or her] office." Official misconduct under Penal Law § 195.00 is a class A misdemeanor.

The accusatory instrument, signed by Detective Cherry on October 12, 2010, stated that [*6]he was "informed by informant Nahmod that he ha[d] reviewed and [wa]s familiar with the Operating Guide of the Emergency Medical Service Command of the [FDNY], which applies to . . . Jackson and to . . . Green as [EMTs] with the [FDNY], and that said guide requires that all on-duty [EMTs] must, when flagged down for assistance, acknowledge and provide treatment, as well as notify the Emergency Medical Dispatch Command of the situation." The corroborating affidavit signed by Nahmod on October 12, 2010 stated that he had read the accusatory instrument, and that "[t]he facts stated in that instrument to be on information furnished by [him we]re true upon [his] personal knowledge."

The City served its answer to plaintiffs' complaint on October 12, 2010. LICH served its answer on October 18, 2010, which does not allege any cross claim against the City. Jackson initially defaulted, but later appeared in this action with private counsel. The City states that it was never served with Jackson's answer. Plaintiffs served a bill of particulars on November 4, 2010. Plaintiffs' bill of particulars alleged that the City was negligent in that Jackson and Green committed official misconduct, left the scene of a medical emergency, and left and abandoned a patient in need of emergency medical aid. It further alleged that the City, through their uniformed on-duty EMTs, Jackson and Green, intentionally refused to come to the aid and/or assistance of Rennix while she required urgent and/or emergent medical care, and violated internal rules, regulations, manuals, protocols, guidelines, and oaths requiring EMTs to come to the aid and/or assistance of those in need of medical assistance.

The parties have engaged in discovery, including conducting the depositions of Cynthia, Rogers, Colon, Vaccianna, Jackson, Suarez, and Martinez. Documents have also been produced, including the CAD, the FDNY ALS unit ambulance call report (ACR), the BLS ambulance unit pre-hospital care report, transcripts of the 911 recordings, and the Office of the Chief Medical Examiner's report of Rennix's autopsy. On January 15, 2013, plaintiffs filed their note of issue.

On May 2, 2013, the City brought this motion for summary judgment dismissing plaintiffs' complaint as against it. On June 25, 2013, the charges in the criminal action were dismissed after Nahmod appeared to change his previous position by stating that Jackson did not violate the flag down rule. On July 24, 2013, plaintiffs cross-moved for an order, pursuant to CPLR 3025 (b), granting them leave to amend their pleadings to clarify that they are alleging negligence and gross negligence, and, pursuant to CPLR 3124, compelling the production of discovery, which, they asserted, was necessitated by Nahmod's purported change in position, which resulted in the dismissal of the criminal charges against Jackson. Specifically, plaintiffs sought to take the deposition of Nahmod, pursuant to a notice to take his deposition upon oral examination dated July 3, 2013, and for him to produce, at such deposition, all items enumerated in a notice for discovery and inspection also dated July 3, 2013. The notice for discovery and inspection requested documents given to the District Attorney relating to the charges and dismissal of the criminal action, a copy of the flag down rule, and any letter to the District Attorney in which Nahmod stated that the flag down rule did not apply to Rennix.

By an order dated August 19, 2013, the court granted plaintiffs' cross motion to the extent that it granted plaintiffs leave to amend their complaint and their bill of particulars, required plaintiffs to serve and file their amended complaint and their amended bill of particulars within 20 days, vacated plaintiffs' note of issue pending further discovery, and granted plaintiffs leave to depose Nahmod. [*7]

Pursuant to the court's August 19, 2013 order, plaintiffs' amended complaint and amended bill of particulars were served on August 21, 2013, and the City produced Nahmod for deposition on October 31, 2013. Plaintiffs' amended complaint adds the allegations that the City was reckless and grossly negligent with respect to the medical care and treatment rendered to Rennix. Plaintiffs' amended bill of particulars similarly adds that the City committed grossly negligent acts and/or omissions at Rennix's place of employment and was grossly negligent in the medical care and treatment rendered to Rennix.

At his deposition, Nahmod testified that Jackson was not on an authorized break, but was on duty at the time that she was at the Au Bon Pain restaurant (Nahmod's Deposition Transcript at 46). Nahmod also testified that EMTs are "required to provide assistance when asked, to the level of their training and the[ir] capability and the equipment that they have on hand" (Id. at 78). Nahmod noted that Jackson "never made patient contact" or performed a "patient assessment," but only "notified the dispatcher that there was a medical emergency, as someone told her" (Id. at 80).

Nahmod further testified, at his deposition, that his understanding of the flag down rule is that it is applicable when "an ambulance unit with either two paramedics or two EMTs are flagged down, meaning there is a person waving them down saying there is a need for assistance on the scene" (Id. at 40). He specifically explained that the flag down rule only applies to two EMTs and/or paramedics that are working in an ambulance as a unit, and that, under this rule, EMTs and/or paramedics that are on duty in an ambulance are required to stop, render care, and advise the dispatcher of such a flag down (Id. at 39-40, 51-53, 60-61). He stated that he had consistently provided this interpretation of the flag down rule for Assistant District Attorney Richardson and Detective Cherry, and that he had not changed his interpretation of this rule (Id. at 52, 60, 82). He also testified that he told Assistant District Attorney Richardson that since Jackson was not in an ambulance at the time of the incident with Rennix, he did not interpret that to be covered under the flag down rule (Id. at 61).

Nahmod additionally testified that Assistant District Attorney Richardson had called him to clarify his interpretation of what the flag down rule meant, and that when he told him that it was only applicable to an ambulance unit, Assistant District Attorney Richardson told him that he was dismissing the charges against Jackson based upon his interpretation of the flag down rule (Id. at 82-84). He explained that Assistant District Attorney Richardson had not previously understood the flag down rule to be only applicable to a unit, and that he had thought that it was applicable to a person (Id. at 83).

Plaintiffs, in their response to the City's motion to dismiss, do not oppose such motion with respect to the dismissal of allegations of negligence regarding the care and treatment rendered by the ALS crew, when it established contact with Rennix at 9:28 A.M. and thereafter. Plaintiffs acknowledge that, as argued by the City, since Rennix was unconscious when the ALS ambulance arrived, she could not have relied upon any promise as to the care administered by it. Plaintiffs limit their opposition to the City's motion to their allegations arising solely from the allegedly tortious acts by Jackson and Green at the time that they were advised that Rennix was in need of assistance. Since plaintiffs amended their complaint during the pendency of the City's motion, the court will address the City's motion as against plaintiffs' amended complaint (see 49 W. 12 Tenants Corp. v Seidenberg, 6 AD3d 243, 243 [1st Dept 2004] Livadiotakis v [*8]Tzitzikalakis, 302 AD2d 369, 370 [2d Dept 2003] Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998]).

In addressing the City's motion, it is noted that where a municipality exercises a governmental function, the threshold inquiry focuses on the extent to which the municipality owed a "special duty" to the injured party (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013] Valdez v City of New York, 18 NY3d 69, 80 [2011]). Assistance rendered by FDNY EMTs is viewed as "a classic governmental" function, which requires the existence of a special duty (Valdez, 18 NY3d at 75; see also Applewhite, 21 NY3d at 430; DiMeo v Rotterdam Emergency Med. Servs., Inc., 110 AD3d 1423, 1424 [3d Dept 2013]). "Without a [special] duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm" (Lauer v City of New York, 95 NY2d 95, 100 [2000]). "The core principle" underlying this special duty requirement "is that to "sustain liability against a municipality, the duty breached must be more than that owed the public generally"'" (Applewhite, 21 NY3d at 426, quoting Valdez, 18 NY3d at 75, quoting Lauer, 95 NY2d at 100).

The Court of Appeals has recognized that "a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition" (Applewhite, 21 NY3d at 426; see also Metz v State of New York, 20 NY3d 175, 180 [2012]). It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because duty is an essential element of the negligence claim itself (see also Lauer, 95 NY2d at 100; see also Valdez, 18 NY3d at 75). "In situations where the plaintiff fails to meet this burden, the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity" (Applewhite, 21 NY3d at 426).

Plaintiffs rely upon the first of these situations recognized by the Court of Appeals, contending that a special duty can be established on the basis that Rennix belonged to a class for whose benefit a statute was enacted. Specifically, plaintiffs argue that the acts and conduct of Jackson and Green violated Penal Law § 195.00 (2). As noted above, pursuant to this criminal statute, official misconduct under this section is a class A misdemeanor, and Jackson was initially charged with such official misconduct.

Plaintiffs' reliance on Penal Law § 195.00 (2) as a basis for a special duty, however, must be rejected since in order "[t]o form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action" (Flagstar Bank, FSB v State of New York, 114 AD3d 138, 142 [2d Dept 2013], quoting Pelaez v Seide, 2 NY3d 186, 200 [2004]). Penal Law § 195.00 does not authorize a private right of action. Plaintiffs argue, however, that a private right of action should be implied, noting that "[o]ne may be fairly implied when (1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme" (Pelaez, 2 NY3d at 200; see also Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989] Flagstar Bank,114 AD3d at 142). However, "[i]f one of these prerequisites is lacking, the claim will fail" (Pelaez, 2 NY3d at [*9]200).

Here, no private right of action may be implied because it would not promote the legislative purpose of Penal Law § 195.00, nor would it be consistent with its legislative scheme. " A statutory command . . . does not necessarily carry with it a right of private enforcement by means of tort litigation'" (Flagstar Bank, FSB, 114 AD3d at 142, quoting Uhr v East Greenbush Cent. School Dist., 94 NY2d 32, 38 [1999]). The legislative purpose and scheme of Penal Law § 195.00 is to inhibit official misconduct by providing criminal penalties against the public servant who is derelict in the performance of duty for personal gain or to deprive another of a benefit, commensurate, upon conviction, with a class A misdemeanor, rather than imposing any governmental tort liability. "The culpable mental state requirement excludes from criminal liability simply unauthorized conduct or neglect of duty'" (Donnino, Practice Commentaries, McKinney's Con Laws of NY, Book 39, PL § 195.00, quoting Staff Notes on the Commission on Revision of the Penal Law, McKinney's Spec. Pamph. [1964], p. 371). It is, therefore, improbable that Jackson's neglect of duty would constitute a violation of the Penal Law provision. Furthermore, the fact that Penal Law § 195.00 potentially covers a very broad range of conduct by any type of public servant, as well as the fact that every member of the public regularly interacts with such public servants, strongly militates against a finding that Rennix was a member of a class for whose "particular" benefit this statute was enacted. Moreover, it has been expressly held that there is no private right of action under this section (see Christian v Town of Riga, 649 F Supp 2d 84, 91 [WD NY 2009], reconsideration denied 2010 WL 4116785 [WD NY 2010] Moore v New York City Dept. of Educ., 2004 WL 691523, *5 [SD NY 2004] Tourge v City of Albany, 285 AD2d 785, 787 [3d Dept 2001] Matter of Clark v Town Bd. of the Town of Clarkstown, 37 Misc 3d 671, 677 [Sup Ct, Rockland County 2012]).

Since a private right of action is not available under Penal Law § 195.00, plaintiffs may not assert a special relationship based on a claimed violation of a statutory duty. In any event, as noted, the charges against Jackson under this section were, in fact, dismissed. Thus, there is no basis to find that Jackson engaged in official misconduct so as to support any violation of a statutory duty. Consequently, the first situation recognized by the Court of Appeals in which a special duty may be inferred, i.e., on the basis of a plaintiff belonging to a class for whose benefit a statute was enacted, does not apply to create a special duty in this case.

As to the second situation recognized by the Court of Appeals as a possible basis for a finding of a special duty, it is well established that in order for a special duty to derive from the City voluntarily assuming a "special relationship" with Rennix beyond the duty that is owed to the public, the presence of four elements must be shown: " (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'" (Laratro v City of New York, 8 NY3d 79, 83 [2006], quoting Cuffy v City of New York, 69 NY2d 255, 260 [1987] see also Applewhite, 21 NY3d at 430-431; Freeman v City of New York, 111 AD3d 780, 782 [2d Dept 2013] Kupferstein v City of New York, 101 AD3d 952, 954 [2d Dept 2012], lv denied 21 NY3d 861 [2013]). Plaintiffs have the burden of satisfying each one of these factors in order to establish a special relationship (see Applewhite, 21 NY3d at 431). "The direct contact' [*10]and reliance' requirements are particularly important, as they rationally define and limit the class of persons to whom the municipality's special duty' extends" (Lauer, 95 NY2d at 102).

Here, plaintiffs cannot satisfy the first, third, and fourth elements. It cannot be disputed that neither Jackson nor Green made any promises or assurances to act on behalf of Rennix. Indeed, neither Jackson, nor Green, ever spoke to or saw Rennix, thus foreclosing the possibility of any statement by them being construed as a promise or assurance. Furthermore (as discussed above), even Colon and Vaccianna admitted that they did not hear whether Jackson had even called for an ambulance.

Since there was no direct contact between Jackson or Green and Rennix, there could not be justifiable reliance by Rennix on anything Jackson or Green did or said (see Freeman, 111 AD3d at 782). Direct contact and reliance by someone other than the injured person as sufficient to create a special relationship can only be established "where the person making the contact was acting on behalf of his or her immediate family" (Laratro, 8 NY3d at 84). To hold otherwise, would "unacceptably dilute the general rule of municipal liability" (id.). Thus, plaintiffs cannot rely upon the conversations and requests made by Colon and Vaccianna since they were Rennix's co-workers and not her immediate family members. Notably, even Colon and Vaccianna did not rely upon Jackson's actions since Colon told Vaccianna that she was not sure if Jackson called for an ambulance and Vaccianna called 911 himself.

Finally, as to the third situation recognized by the Court of Appeals in which a special duty can be formed, it is noted that "liability founded on a municipality's assumption of positive direction and control in the face of a known, blatant, and dangerous safety violation has been recognized only in rare circumstances, as when a municipality, having actual knowledge of a blatant violation of safety laws, nevertheless provides affirmative assurances of safety on which the injured plaintiff relies" (Abraham v City of New York, 39 AD3d 21, 28 [2d Dept 2007], lv denied 10 NY3d 707 [2008]). Here, plaintiffs do not allege that the City took or assumed positive direction and control of a known, blatant, and dangerous safety condition or safety violation (see Applewhite, 21 NY3d at 426; Metz, 20 NY3d at 180; McLean v City of New York, 12 NY3d 194, 199 [2009] Pelaez, 2 NY3d at 199-200). Rather, they argue that Jackson and Green were grossly negligent based upon their failure to act. Thus, plaintiffs cannot establish a special duty on this basis.

Consequently, plaintiffs have failed to establish the existence of a special duty running from the City to Rennix, through its agents, Jackson and Green (see Applewhite, 21 NY3d at 426; Valdez, 18 NY3d at 75; McLean, 12 NY3d at 199; Laratro, 8 NY3d at 82-83; Pelaez, 2 NY3d at 199-200; Lauer, 95 NY2d at 102; Cuffy, 69 NY2d at 260; Freeman, 111 AD3d at 782; Kupferstein, 101 AD3d at 952). Plaintiffs argue, however, that their allegation of gross negligence eliminates the requirement to demonstrate a special duty. No legal authority supports such conclusion.

Plaintiffs have submitted the affidavit of Arthur D. Romano (Romano), their expert in emergency medical services, who worked as an EMT and paramedic in the New York City EMS System for 14 years and who is currently the Deputy Director for Emergency Medical Service for Greenwich, Connecticut. Romano opines that by abandoning Rennix, Jackson and Green "allowed her to fall into and remain in a position which restricted her airflow and exacerbated her respiratory arrest." He asserts that their "deliberate failure to personally assess [Rennix] was [*11]gross negligence."

Romano cites to the 2008 NYS Statewide Basic Life Support Adult and Pediatric Treatment Protocols designed by the Bureau of Emergency Medical Service of the New York State Department of Health and the New York State Emergency Medical Services Counsel, which states that "[t]he goal of pre-hospital emergency medical care is to provide DEFINITIVE CARE for the patient as rapidly and safely as the situation indicates with no deterioration of his/her condition and, when possible, in an improved condition." He sets forth that Jackson and Green violated these minimal standards by not beginning basic life support procedures for Rennix and by not administering her Albuterol pump for her.

Romano asserts that there were gross deviations by Jackson and Green from required EMS practice which constituted gross negligence. Specifically, he opines that these deviations included the failure to attend to Rennix until a second responder arrived with a higher level of training and/or equipment, the failure to assess the situation, the failure to administer Albuterol and/or CPR and/or assist or treat Rennix, and the failure to obtain and report sufficient details so that the appropriate EMS units would be dispatched. He also points to the fact that there was a six-minute delay between the arrival on the scene of the BLS EMTs and patient contact because it was raining and the EMTs needed to bring the ambulance closer, which they could not do until security lowered a barrier to enable them to drive on the sidewalk. He opines that Jackson and Green were responsible for this delay since they were aware of the location and layout of the area and should have taken steps necessary to expedite ready access to Rennix.

Plaintiffs have also submitted the affidavit of Howard Schwartz, M.D. (Dr. Schwartz), their expert in internal medicine. Dr. Schwartz, who is a physician experienced in emergency medicine, trauma, and critical care, concurs that the City departed from good and accepted EMS practice in the care and treatment rendered to Rennix, as set forth within the affidavit of Romano. Relying upon the alleged departures of care cited by Romano, Dr. Schwartz concludes that the City's "grossly negligent acts and/or departures from good and accepted EMS practice, and violations of its own protocols and policies" were a proximate cause of Rennix's injuries and death as well as the injuries and death of Janiyah Renee. He further opines that if Jackson and Green had acted in accordance with good and accepted EMS practice, Rennix would have had her asthma appropriately treated, would not have suffered cardio-pulmonary arrest, and would have survived her asthma attack.

Neither Romano nor Dr. Schwartz, however, adequately addresses the issue of the lack of any special duty or special relationship between Rennix and the City. With respect to this issue, Dr. Romano sets forth his opinion that a special relationship between the City and Rennix was created by the unique circumstances of this case because the person who approached Jackson and Green was personally known to them as an employee of the Au Bon Pain restaurant, and while Jackson and Green may not have known Rennix by name, they knew her by her face and knew who she was. He asserts that this created an acquaintanceship deriving from a regular customer/Au Bon Pain worker relationship. He opines that, under these circumstances, Rennix had every reason to believe, expect, and rely upon Jackson and Green to come to her aid.

Romano's opinion that a special relationship was created, however, is inconsistent with the law and constitutes an impermissible and unsupported legal conclusion (see Colon v Rent-A-Center, 276 AD2d 58, 61 [1st Dept 2000] [holding that "(e)xpert opinion as to a legal [*12]conclusion is impermissible"]) since a customer/worker relationship does not establish a special relationship in the absence of direct contact or justifiable reliance on an affirmative undertaking (see generally Applewhite, 21 NY3d at 430-431; Laratro, 8 NY3d at 83; Cuffy, 69 NY2d at 260; Lauer, 95 NY2d at 102). As discussed above, there was no direct contact or any justifiable reliance by Rennix on Jackson so as to create a special relationship.

Plaintiffs further argue, however, that the City should be estopped from arguing that they cannot establish a special relationship due to the allegedly egregious conduct by Jackson and Green in not affirmatively helping Rennix, who was in need of emergency assistance. This argument must be rejected since estoppel is premised upon "detrimental reliance upon a definite promise of assistance given directly by an agent of the municipality to the plaintiff" (Valdez, 18 NY3d at 89) which is not present here.

Plaintiffs additionally rely upon the opinions of their experts, Romano and Dr. Schwartz, in support of their argument that Jackson and Green failed to comply with departmental protocol or "industry standards" for 911 responses and that this constituted gross negligence. This argument is unavailing since the argument, that "the alleged failure of 911 personnel to comply with departmental protocols and standards of conduct accepted throughout the 911 industry is an independent basis for liability, apart from the existence of a special relationship", was expressly rejected by the Appellate Division, First Department, in Badillo v City of New York (35 AD3d 307, 308 [1st Dept 2006]).

Plaintiffs further contend that Romano disagrees with Nahmod's interpretation of the flag down rule. Romano asserts that the flag down rule does not condone the abandonment of a person known to be in need of assistance. Romano defines the flag down rule as "appl[ying] to EMS providers/ambulance units which are already en route and/or already involved in providing emergency assistance to another." He states that "in such [a] case all that is required when they observe someone else in need is to stop and call."

The issue of whether or not the flag down rule applied to Jackson, however, is of no moment since its violation would not, in any event, create a basis upon which to hold the City liable to plaintiffs as it is merely a guideline set forth in the EMS Command Operating Guide Procedures. It has been held that no special duty or special relationship can arise from any alleged violation by EMS workers of the guidelines set forth in their operating guide (see Peters v City of New York, 5 Misc 3d 1020[A], 2004 NY Slip Op 51469[U], *5 [Sup Ct, Kings County 2004] see also O'Connor v City of New York, 58 NY2d 184, 189-192 [1983]). While operation guidelines set forth in the EMS Command Operating Guide Procedures may be intended to benefit a person in need of emergency treatment, such intention is only "in the broad sense of protecting all members of the general public similarly situated" (see also Isaksson v Rulffes, 135 AD2d 611, 613 [2d Dept 1987]), which is insufficient to form a basis for municipal liability (see O'Connor v City of New York, 58 NY2d at189-190, rearg denied 59 NY2d 762 [1983] Isaksson, 135 AD2d at 613).

Plaintiffs, citing Haddock v City of New York (75 NY2d 478, 485 [1990]) and Johnson v City of New York (15 NY3d 676, 681 [2010], rearg denied 16 NY3d 807 [2011]), also contend that governmental immunity does not attach to violations of rules, policies, and procedures applicable to a governmental employee's position or title. In both of these cases, however, the municipal defendant's eligibility for immunity was determined by whether the particular rules [*13]and protocols at issue afforded the employee some degree of discretion and whether such discretion had actually been exercised (see Johnson, 15 NY3d at 681 (complaint against City dismissed where, in conformity with guidelines, officer had discharged firearm unaware that bystander was present); Haddock, 75 NY2d at 485 (dismissal denied where employee had failed to exercise discretion and failed to evaluate criminal record as required by rules)). The question at bar, though, is not whether defendants' actions are covered by governmental immunity, as it is indisputable that defendants were acting in a governmental capacity and would be immune from liability unless a special duty is established. Haddock and Johnson do not support plaintiffs' argument and are irrelevant to the issue here. Since plaintiffs are unable to establish the existence of a special duty, as set forth in Applewhite (21 NY3d at 426), "the analysis ends and liability may not be imputed to the municipality that acted in a governmental capacity."

Plaintiffs further argue that governmental immunity is not extended to acts of gross negligence in providing emergency medical services. Contrary to plaintiffs' argument, however, gross negligence is not an exception to the public duty rule which requires the existence of a special duty in order to maintain an action relating to the performance of a governmental function. This is not a case in which proprietary medical services, not protected from liability for negligence, were provided by the City. In Applewhite (21 NY3d at 430), the Court of Appeals specifically held that EMTs fulfill a governmental function, for which the City could be liable in tort only if the plaintiffs therein were able to establish that a special duty was owed to them. Notably absent from the Court of Appeals' analysis is any discussion that an exception from the special duty requirement exists based upon gross negligence.

Plaintiffs argue that the holding in Applewhite (21 NY3d at 426, 430-431), that EMS responses are a governmental function requiring establishment of a special duty, should be limited to emergency 911 dispatch attempts to save a life, and should not apply here, where EMTs Jackson and Green refrained from attempting to save Rennix's life. This argument, though, must be rejected since the holding of Applewhite (21 NY3d at 426, 430-431) applies to both misfeasance and nonfeasance, i.e., passive inaction or a failure to take steps to protect one from harm or "[t]he failure to act when a duty to act existed" (Black's Law Dictionary [9th ed 2000]). The Court of Appeals, in Applewhite (21 NY3d at 426 n 1), specifically held that "precedent does not differentiate between misfeasance and nonfeasance, and such a distinction is irrelevant to the special duty analysis" (see generally McLean, 12 NY3d at 202; Schuster v City of New York, 5 NY2d 75, 82 [1958]).

The cases relied upon by plaintiffs (see Kowal v Deer Park Fire Dist., 13 AD3d 489, 491 [2d Dept 2004] O'Leary v Greenport Fire Dept., 276 AD2d 539, 539 [2d Dept 2000] Rider v Gaslight Tavern Corp., 125 AD2d 144, 147 [3d Dept 1987]) to support their argument that the City can be held liable for gross negligence are inapposite. All of these cases involved volunteer ambulance services, whose exposure to tort liability is governed by the provisions of Public Health Law § 3013 (1). Pursuant to Public Health Law § 3013 (1), a voluntary ambulance service or voluntary advanced life support first response service, which voluntarily and without the expectation of monetary compensation renders medical assistance in an emergency, can be held liable only if their emergency medical technicians were grossly negligent in rendering such emergency medical assistance and cannot be held liable for ordinary negligence. Public Health Law § 3013 (1) parallels Public Health Law § 3000-a, which is known as the Good Samaritan [*14]Statute and reflects a legislative decision to afford these volunteers immunity from ordinary negligence. Public Health Law § 3013 (1), however, is inapplicable to the City, which does not provide volunteer services and, instead, performs a governmental function. Moreover, the issue of whether there is gross negligence is independent of the inquiry of whether there is a special duty and does not eliminate the need to show the existence of a special duty.

Indeed, in Kowal (13 AD3d at 491), the Appellate Division, Second Department, citing Cuffy (69 NY2d at 260) and Lauer (95 NY2d at 102), noted that "[t]he doctrine of special relationship' is applicable whether a municipality is charged with nonfeasance . . . or misfeasance with respect to a governmental function." In Kowal, the question of whether there was a special relationship was inapplicable, however, because the Deer Park Fire District defendants had affirmatively voluntarily undertaken the duty to treat the plaintiff's decedent and there was misfeasance with respect to medical treatment which is not a governmental function (Kowal, 13 AD3d at 491; see also Haggerty v Diamond, 251 AD2d 455, 455 [2d Dept 1998], lv denied 92 NY2d 814 [1998]). The Kowal decision relied upon the well established rule that, even where one owes no original duty to an individual to undertake " affirmative action, once it is voluntarily undertaken, it must be performed with due care'" (Kowal, 13 AD3d at 491, quoting Fonville v New York City Health & Hosps. Corp., 300 AD2d 623, 624 [2d Dept 2002] see also Parvi v City of Kingston, 41 NY2d 553, 559 [1977] Persaud v City of New York, 267 AD2d 220, 220 [2d Dept 1999]), because one who undertakes affirmative action with respect to another cannot leave such person in a worse position than when he or she took charge of him or her (see Parvi, 41 NY2d at 559). Here, it is undisputed that Jackson and Green never undertook any medical treatment of Rennix. Consequently, there was no special relationship or special duty created between Rennix and Jackson or Green. Since no action was taken by Jackson or Green, it cannot be said that they failed to perform with due care.

Plaintiffs' reliance upon Mental Hygiene Law § 9.59 is also misplaced. Mental Hygiene Law § 9.59 provides that "[a]n ambulance service [municipal or volunteer] and any member thereof who is an emergency medical technician . . . transporting a person to a hospital [for psychiatric assessment] . . . shall not be liable for damages for injuries alleged to have been sustained by such person or for the death of such person alleged to have occurred by reason of an act or omission unless it is established that such injuries or such death was caused by gross negligence on the part of such emergency medical technician." This section, which provides immunity from liability for ordinary negligence to EMTs who are engaged in transporting a person to a psychiatric hospital and provides that such EMTs can only be held liable if the EMT's acts in transporting the person amounted to gross negligence, is wholly inapplicable to this case where there was no involuntary transport of any individual to a psychiatric hospital (see Woody v Astoria Gen. Hosp., 264 AD2d 318, 319 [1st Dept 1999]).

Plaintiffs, citing language in Colnaghi, U.S.A. v Jewelers Protection Servs. (81 NY2d 821, 823 [1993]), Sommer v Federal Signal Corp. (79 NY2d 540, 554 [1992]), and Kalisch-Jarcho, Inc. v City of New York (58 NY2d 377, 384-385 [1983]), argue that the courts have repeatedly recognized that there is no immunity from liability for gross negligence and to hold otherwise, flies in the face of public policy. Plaintiffs' reliance upon language in these cases, however, is misplaced since all three of these cases, in which the parties had contractually agreed to limit liability even for gross negligence, merely hold that public policy forbids a party's [*15]attempt to escape potential liability and insulate itself, through a contractual exculpatory clause, for damages caused to another by grossly negligent conduct as opposed to ordinary negligence. These cases define "gross negligence," in this context, as "conduct that evinces a reckless disregard for the rights of others or smacks' of intentional wrongdoing" (Colnaghi, U.S.A., 81 NY2d at 823-824; see also Sommer, 79 NY2d at 554; Kalisch-Jarcho, Inc., 58 NY2d at 385).

None of these cases, however, involves tort liability for the negligent performance of a governmental function, governmental immunity, or the requirement of a special duty. Here, in contrast to these cases, the public policy preventing a party from contractually insulating itself from damages caused by gross negligence is not implicated. Instead, the requirement that plaintiffs demonstrate that a special duty exists advances public policy by limiting the exposure of municipalities to excessive tort recoveries, which would be excessively burdensome for taxpayers, and which, due to the threat of liability, "could dissuade municipalities from maintaining emergency medical and ambulance services," which "could consequently render municipal governments less, not more, effective in protecting their citizens" (Applewhite, 21 NY3d at 430).

Plaintiffs' citation to Civil Rights Law § 79-k is also inapplicable since it provides that "[a]ny person who voluntarily and without the expectation of monetary compensation provides assistance in the event of an accident or other emergency situation involving the use, handling, transportation, transmission or storage of compressed gases and/or liquefied petroleum gases shall not be liable for any civil damages for injuries resulting from any act of commission or omission on his [or her] part in the course of his [or her] rendering such assistance unless it is established that such injuries were caused by gross negligence on the part of such person." This section similarly provides immunity from ordinary negligence under certain specific circumstances, and is wholly inapplicable to the circumstances involved in the case at bar.

Although the evidence presented to this Court suggests that EMT Jackson's behavior in disregarding her obligation to respond to the needs of a person in distress was egregious, and she may be subject to disciplinary action as a result, because she failed to provide any direct assistance or care, she and the City defendants cannot be held liable to the plaintiffs for negligence, gross or otherwise, without a showing that defendants owed Rennix a special duty to act. Plaintiffs may not avoid the special duty requirement by premising their amended complaint on allegations of gross negligence. Since plaintiffs have failed to satisfy the requirement of showing that a special duty existed between Rennix and the City, summary judgment dismissing plaintiffs' amended complaint as against it must be granted (see CPLR 3212 [b] Applewhite, 21 NY3d at 426).

Accordingly, the City's motion for summary judgment dismissing plaintiffs' amended complaint and any and all cross claims as against it is granted. This action is severed as against the remaining defendants.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.