Upon the foregoing papers, the motion by defendants New York City Police Department and the City of New York (the City) for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint insofar as asserted against them is denied and the cross motion by defendant American Medical Alert Corp. (American) for an order granting summary judgment dismissing the complaint and all cross claims asserted against it is granted.

On December 20, 1999, at about 5:39 p.m., Marie Etienne made an emergency call to American, complaining that she was having difficulty breathing and experiencing a heart attack. Shortly thereafter, American notified the City regarding her need for an immediate ambulance response to her home. Notwithstanding the urgency with which help was requested, a response was not forthcoming for an hour and, according to the complaint herein, when employees of the City did arrive, "they failed to rendered any emergency assistance," "failed to summon an ambulance" and "failed to give the correct address . . . to those responsible for summoning the ambulance." As a result of such lapses, Marie Etienne died. In his complaint, Frantz Etienne, the administrator of the estate of Marie Etienne, further alleges that American, which had been hired by decedent to provide medical response services and had sold her a personal safety system called "Voice Care," "failed to properly communicate the medical status of decedent" to the City.

In its motion, the City explains that, while a police officer (Michael Ginty) arrived at the scene 17 minutes after a 911 call from American, Emergency Medical Services (EMS) paramedics were (at 6:00 p.m.) "in a courtyard and were having difficulty finding the location." Three minutes later the paramedics informed the dispatcher that their ambulance had become disabled and, therefore, the unit had to be released from the assignment and another paramedic [*2]ambulance assigned. This unit also advised the dispatcher, as the first unit did originally, that it anticipated an extended response time; that is, a delay of greater than ten minutes. The second paramedic unit arrived on the scene at 6:29 p.m., about three minutes after firefighters trained as "certified first responders." Unfortunately, efforts at resuscitation were unsuccessful and Marie Etienne was pronounced dead at the scene shortly after 7 p.m. The City contends that, pursuant to Cuffy v City of New York (69 NY2d255 [1987]), a municipality may not be held liable for injuries resulting from its failure to timely supply an ambulance in response to a request for emergency medical assistance absent a special relationship with the injured party and there was no special relationship with decedent because the City had no direct contact with Marie Etienne. Moreover, the City argues that there is no evidence that decedent relied on the radio calls made by officer Michael Ginty or that she elected not to avail herself of any equivalent or superior alternatives which she had at her disposal. Assuming that plaintiff can demonstrate that a special relationship did exist, the City asserts that its acts or omissions with respect to the assignment and arrival of an ambulance are protected as the exercise of a discretionary governmental function.

In its cross motion, American confirms that it received a call from Marie Etienne at 5:39 p.m. and that it contacted the police two minutes later. According to American's report summary, as well as a transcript of the 911 called placed by American's operator, the operator provided decedent's address, telephone number, complaints and prior medical history. Since there is no evidence that American was negligent "in failing to timely and properly communicate the status of decedent's medical condition" to the City, American contends that the complaint and all cross claims against it should be dismissed.

In opposition to the motion, plaintiff argues that there was direct contact between the City and decedent, given that there was contact between American and the City with decedent on the telephone in the background. Plaintiff also points out that there was direct contact between Officer Michael Ginty and decedent and that he assured her that help was on the way. Further, according to the affidavit of Daisy Roberts, decedent's neighbor, she (Ms. Roberts) made a decision not to call for alternative means of assistance because she believed Officer Ginty's words that an ambulance was on the way. With respect to the City's claim of immunity, plaintiff asserts that this case does not involve the "exercise of professional judgment" by a governmental body.

In opposition to the cross motion, plaintiff insists that American failed to provide EMS workers with the correct information for decedent "on more than the occasion." According to plaintiff, American gave the 911 operator the wrong telephone number for decedent and "[held] up the initial conversation by giving wrong answers to questions and then correcting them."^[FN1]

In reply, the City dismisses the alleged "three-way conversation" among decedent, American, and the EMS dispatcher as insufficient to establish a direct contact between decedent and the City. It similarly discounts the "interaction" with Officer Ginty since decedent never received an assurance as to when the ambulance would arrive and the police officer did not [*3]respond to the scene to render emergency medical assistance. The City characterizes the affidavit of Daisy Roberts as "highly speculative" and challenges its value in demonstrating justifiable reliance by the decedent. According to the City, Daisy Roberts refrained from making additional 911 calls which was, in essence, what Officer Ginty did. Notwithstanding EMS' difficulties, the City urges that there has been no demonstration that its actions were anything other than discretionary.

In its reply papers, American argues that the reason for the delay in the arrival of the ambulance was EMS' failure to find decedent's building, not American's failure to provide the correct telephone number. American also points out that EMS did not attempt to telephone decedent until 20 minutes after decedent's initial distress call. According to American, after it was contacted by EMS a minute later, it reviewed its system and discovered an additional telephone number for decedent. Following that discovery, American attempted to contact decedent by telephone, but there was no answer.

It is well settled 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 Apostolakis v Centereach Fire Dist., 300 AD2d 516 [2002]) The elements of this special relationship are: "(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]). Here, the City essentially concedes the first two requirements.

Under the circumstances, the City has failed to establish the absence of an issue of

fact as to the existence of direct contact between its agents and decedent. Guardian had a contract with decedent pursuant to which it would summon assistance if requested by her. Pursuant to its contract, Guardian had direct contact with and communicated the urgency of decedent's situation to a 911 dispatcher. Guardian's employee also expressed the need for immediate assistance which the City allegedly failed to provide. A reasonable inference can therefore be drawn that this contact was made in decedent's interest and on her behalf for the sole purpose of assuring her protection (see Stata v Village of Waterford, 225 AD2d 163 [1996]). Unlike Baez v City of New York (304 AD2d 679 [2003]), for example, Guardian was not merely a disinterested volunteer which was not acting at the direction of decedent. Moreover, both Guardian's employee and Daisy Roberts, decedent's neighbor, had reason to rely on the City's assurances that an ambulance would arrive shortly. The transcript of the 911 call indicates that the EMS dispatcher told Guardian's employee that "we're going to get there soon." Further, according to the affidavit of Daisy Roberts, Officer Ginty told herand decedent several times that "help was on the way." Consequently, although decedent lost consciousness, Ms. Roberts made no effort to seek alternative assistance (see Canty v New York City Health and Hosp. Corp., 158 AD2d 271 [1990]).

With respect to Guardian, the transcripts indicate that its operator acted reasonably under the circumstances and, therefore, summary judgment in its favor is warranted. The operator's lapses regarding whether the person on whose behalf the call was made was male or female and [*4]alone at the residence were corrected in, literally, a matter of seconds. Moreover, as Guardian points out, the fact that the City may have been given an incorrect telephone number for decedent was not a proximate cause of the City's delay in responding to the scene and, when asked by the 911 operator for a correct number, one was quickly provided. Accordingly, the cross motion by Guardian is granted and the complaint and all cross claims against it are dismissed (see Kaiser v Delaney, 8 AD3d 238 [2004]). The action is severed and continued against the municipal defendants.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R,

J. S. C.