Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after oral argument on February 28, 2024, pursuant to CPLR § 3212, Defendant the City of New York's ("City") Motion for Summary Judgment dismissing Plaintiff's complaint and all crossclaims is GRANTED.

BACKGROUND

This action arises from Defendants' alleged negligence for the wrongful death of Nicole Ann Garbellotto ("decedent"), who tragically passed away from a self-administered drug overdose. On December 7, 2016, at around 5:30 p.m., the Triborough Bridge and Tunnel Authority ("TBTA") police found the decedent unresponsive in a vehicle at the toll plaza of the Verrazano Bridge.^[FN1] The TBTA arrested decedent and EMT had to administer Narcan and transported her by ambulance to the Staten Island University Hospital ("SIUH").^[FN2] Decedent was then determined to have overdosed and was treated at SIUH, which included receiving two additional doses of Narcan.^[FN3] After receiving treatment and being monitored at the SIUH for about eight hours, it was noted by hospital staff that decedent was in stable condition and had all vital signs within normal limits.^[FN4] Decedent was then discharged from the SIUH into TBTA police custody.^[FN5] On December 8, 2016, at around 4:00 a.m., the decedent was transported to the New York City Police Department's ("NYPD") 120th Precinct for arrest processing.^[FN6]

Then, over the course of approximately seven hours, during decedent's arrest process,^[FN7] she was placed in a cell,^[FN8] monitored via physical checks every thirty minutes ^[FN9] and via video monitors,^[FN10] and interviewed by personnel for the New York City Criminal Justice Agency [*2]("CJA").^[FN11] Decedent made no complaints or ask for any medical assistance.^[FN12] At approximately 11:20 a.m., it was observed that decedent was seated on the floor in an unnatural position, and an officer immediately performed CPR and EMS was called.^[FN13] Decedent was then taken by ambulance to Richmond University Medical Center and, after some emergency treatment, was pronounced dead at about 12:05 p.m.^[FN14] A subsequent autopsy performed listed decedent's cause of death as "acute intoxication due to the combined effects of furanyl fentanyl, heroin and alprazolam" due to an accidental overdose.^[FN15]

On March 6, 2018, Plaintiff filed a lawsuit in federal court against TBTA, SIUH, and the City.^[FN16] In April 2019, after the completion of discovery in federal court, the City brought a motion for summary judgment that was granted on August 7, 2019,^[FN17] only as to Plaintiff's federal claims and the federal court declined to exercise jurisdiction over Plaintiff's state claims.^[FN18]

After the federal action was dismissed, Plaintiff amended her complaint in the instant action in September of 2019 to include claims against the City Defendant.^[FN19] In an Order Dated August 19, 2022, the Court dismissed some of the Plaintiff's claims against the City Defendant, including intentional infliction of emotional distress, negligent hiring and retention, negligent training and supervision, and punitive damages.^[FN20] However, the Court denied the City's motion as to the claims of wrongful death, negligence, and negligent infliction of emotional distress claims, on the City's argument of collateral estoppel.^[FN21]

Pursuant to CPLR § 3212, the City Defendant now brings the instant motion, seeking summary judgment on Plaintiff's remaining claims. The City Defendant argue its employees acted reasonably and the decedent's overdose was not foreseeable, or, in the alternative, that it did not cause or contribute to decedent's death or that its entitled to dismissal because it cannot be held liable for its officers' exercise of discretion.^[FN22] Plaintiff argues the City Defendant's [*3]motion is premature, it failed to meet its prima facie burden of demonstrating that decedent's overdose was not reasonably foreseeable, there are triable issues of fact regarding whether its employees acted negligently, and it is not entitled to governmental immunity, as its employees had a ministerial duty to protect the decedent.^[FN23]

DISCUSSION

As an initial matter, the City Defendant's motion is not premature. "CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated." Aurora Loan Services, LLC v. LaMattina & Assoc., Inc., 59 AD3d 578 (2d Dept. 2009) (quoting Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2d Dept. 2006]). "This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion." Id. at 724 (quoting Baron v. Inc. Vil. of Freeport, 143 AD2d 792 [2d Dept. 1988]). Here, Plaintiff has had ample opportunities for disclosure, as this case was fully litigated in federal court and extensive discovery has taken place.^[FN24]

The moving party on a motion for summary judgement has the burden to establish "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." Voss v. Netherlands Ins. Co., 22 NY3d 728 (2014) (citing Alvarez v Prospect Hosp., 68 N.Y.2.d 320 [1986]). If a moving party fails to meet their burden, summary judgment must be denied "regardless of the sufficiency of the opposing papers." Id. (citing Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). "A motion of summary judgment is a drastic remedy that should be granted only where there is no clear triable issue of fact presented." Marino v. Jamison, 189 AD3d 1021 (2d Dept. 2020).

Furthermore, the City Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that Plaintiff's overdose was not reasonably foreseeable. Although the City owes a duty of care to protect its prisoners, including from self-inflicted harm,^[FN25] it is not an insurer of prisoner safety and negligence cannot be inferred merely because an incident occurred.^[FN26] The City's duty is limited to providing reasonable care to protect prisoners from risks of harm that are reasonably foreseeable, such as the City knew or should have known.^[FN27]

Here, the City Defendant acted reasonably. The parties do not dispute that the decedent was in the care of medical professionals for about eight hours before arriving at the precinct ^[FN28] and [*4]that decedent was cleared for discharge by the hospital.^[FN29] The City demonstrated that decedent was then continuously monitored over the course of almost seven hours while she was at the precinct,^[FN30] did not ask for medical attention ^[FN31] or objectively appear in a condition indicative of the need for medical attention.^[FN32] More specifically, the City Defendant submitted evidence of continuous inspection measures including physical checks and video monitors,^[FN33] as well as multiple independent witness accounts indicating that there were no irregularities in the decedent's appearance.^[FN34] Specifically, the personnel from CJA who interviewed the decedent observed that during the interview the decedent appeared normal and coherent and answered all questions asked.^[FN35] Also, multiple individuals lodged in cells near the decedent indicated that that they did not observe anything irregular about the decedent's appearance ^[FN36] and one individual indicated that they overheard the decedent provide the CJA interviewer with her name, age, and other information, as well as that the decedent "sounded normal."^[FN37] Here, the evidence demonstrates that once the City employees recognized decedent was in need of aid, they initiated CPR and called for emergency medical services.^[FN38]

In opposition, Plaintiff failed to raise any triable issues of fact demonstrating decedent's overdose was reasonably foreseeable, as her claims that the City failed to monitor decedent are not supported by evidentiary facts.^[FN39] More specifically, Plaintiff's contentions that the officers on duty were distracted from monitoring the decedent due to watching the television, talking on the phone, or doing crossword puzzles were insufficient to raise a triable issue of fact because the evidence submitted does not support such speculation to sustain that the involved officers were engaged in such alleged activities at the time they monitored decedent, nor is there evidence to [*5]sustain how often the involved officers engaged in such speculative activities.^[FN40]

For the foregoing reasons, the City's motion for summary judgment is granted and the Plaintiff's complaint and all crossclaims are dismissed with prejudice as to the City Defendant.

All other relief not expressly addressed herein were considered and denied.

This constitutes the Decision and Order of the Court.