This matter comes before the Court on the motion of defendants City of Schenectady ("City") and Schenectady Fire Department to dismiss the Complaint pursuant to CPLR 3211, and the cross-motion of Plaintiff seeking leave to amend the Complaint. This case arises from the actions of emergency response personnel from defendants Schenectady Fire Department and Mohawk Ambulance Service ("Mohawk"), who were dispatched to Plaintiff's home in response to a 911 call. Emergency medical treatment was administered at the residence and Mr. Scott was transported to Ellis Hospital, where he passed away.

At the outset, the parties have effectively agreed that defendant Schenectady Fire Department is not a proper party. The City's motion asserts that the Fire Department is an administrative arm of the City that does not have a separate identity and thus cannot be sued (see e.g. Stevens v. Town of E. Fishkill Police Dept., 198 AD3d 832 [2d Dept 2021]). Plaintiff's counsel concedes this point in his affirmation in opposition, and Plaintiff's cross-motion to amend the Complaint includes dropping the Schenectady Fire Department as a named party.

The City makes several arguments in support of its motion, but one is dispositive. The City alleges that the Complaint fails to state a cause of action (CPLR 3211[a][7]) because Plaintiff fails to plead the existence of a special duty running from the City to Plaintiff's decedent. When deciding a Rule 3211(a)(7) motion, the Court must accept the facts alleged in the Complaint as true, accord Plaintiff the benefit of every possible favorable inference and determine only whether the allegations in the Complaint fit within a cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 88 [1994]).

The starting point for analysis of Plaintiff's claim against the City is to determine whether the City was involved in a proprietary function or a government function, as the answer to that question determines the standard to be applied. Providing emergency medical services has been established as a governmental function (Applewhite v. Accuhealth, Inc., 21 NY3d 420 [2013]). [*2]Therefore, in order to cast the City in negligence, Plaintiff must assert that the City owed Mr. Scott a "special duty;" that is, a duty beyond that owed to the public generally. A special duty can arise in three situations: (1) when 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, and (3) the municipality took positive control of a known and dangerous safety condition (Id. at 426).

A plaintiff asserting negligence against a municipality performing a government function must affirmatively plead a special duty as an essential element of the cause of action (Mancino v. Town of Glenville, 234 AD3d 1191 [3d Dept 2025]). Here, neither the first nor the second cause of action in Plaintiff's Complaint contains factual allegations that any of the three situations outlined in the Applewhite opinion exist in this case to give rise to a special duty. The same is true for the Proposed Amended Complaint. While the Proposed Amended Complaint includes a single statement (at paragraph 41) that the City "breached a 'special duty' to the plaintiff, the decedent, and his distributes," this is a legal conclusion rather than a factual allegation and cannot support Plaintiff's claims (see e.g. Horowitz v. Fallon, 204 AD3d 1177 [3d Dept 2022]).

Plaintiff's opposition to the City motion asserts that the Supplemental Bill of Particulars, as well as the Affirmation of Keimani Griffin and deposition testimony by Plaintiff and by William Angle show the existence of a special duty. This argument fails. First, while a bill of particulars can be considered on a Rule 3211(a)(7) motion, it cannot be used to supply essential allegations that are missing from the complaint (Sullivan v. St. Francis Hosp., 45 AD3d 833 [3d Dept 2007]). Second, beyond the fact that affirmations and deposition transcripts are not pleadings, the Court has not found any facts in the Griffin Affirmation or in the deposition testimony of Ms. Scott or Mr. Angle that show the existence of a special duty beyond that owed to any member of the general public receiving emergency medical assistance from the City (cf. Trimble v. City of Albany, 144 AD3d 1484 [3d Dept 2016]).

In the absence of a special duty, there is no viable claim of negligence (or negligent hiring or negligent retention, or negligent supervision) against the City. Likewise, Mr. Scott would not have had a viable claim against the City had he survived the events at issue, so that Plaintiff's claim for wrongful death against the City also fails (EPTL §5-4.1).

Plaintiff's cross-motion to amend the Complaint is unavailing. As noted in Plaintiff's motion papers, leave to amend is to be freely granted, so long as there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit (Smith v. Haggerty, 16 AD3d 968 [3d Dept 2005]). Given the discussion above, the lack of any factual allegation of special duty in the Proposed Amended Complaint renders it plainly lacking in merit, so that the motion to amend must be denied.

The parties' remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by defendant City of Schenectady to dismiss the Complaint in this action as against the City of Schenectady and Schenectady Fire Department is granted, and the Complaint is hereby dismissed as against those named defendants; and it is further

ORDERED, that the motion by Plaintiff seeking leave to amend the Complaint is denied.

Notice of Motion; Affirmation of Corey A. Ruggiero, Esq., with annexed exhibits; Memorandum of Law; Affirmation in Opposition of Richard J. Katz, Esq., with annexed exhibits; Notice of Cross-Motion; Affirmation of Richard J. Katz, Esq., with annexed exhibits; Memorandum of Law in Opposition to Cross-Motion and in Further Support of Motion; Reply Affirmation of Richard J. Katz, Esq., with exhibit.