This matter comes before the Court on the motion of defendant Mohawk Ambulance Service ("Mohawk") seeking summary judgment dismissing the Complaint insofar as it asserts claims against Mohawk. Plaintiff has opposed the motion. This case arises from the actions of emergency response personnel from defendants Schenectady Fire Department and 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.

The basic summary judgment standard is well known. The proponent of a summary judgment motion carries the initial burden to make a prima facie showing of entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). If the requisite showing is made, the burden of proof then shifts to the responding party to show the presence of questions of fact requiring trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The facts must be construed in a light most favorable to the non-moving party (see e.g. Hanna v. St. Lawrence County, 34 AD3d 1146 [3d Dept 2006]).

Mohawk's motion is succinct. Mohawk points out that the first emergency responders on the scene were Paramedics from the Schenectady Fire Department, who took charge of Mr. Scott's care at the scene and accompanied Mr. Scott in the ambulance to the hospital. The crew members from Mohawk were EMT's who had a lower level of prehospital certification than did the Paramedics. Therefore, according to Protocol 5.17 of the Collaborative Advanced Life Support Adult and Pediatric Treatment Protocols issued by the New York State Health Department, the Paramedics were responsible for Mr. Scott's care throughout and the Mohawk EMT's were obligated to comply with their instructions. This, according to Mohawk, precludes Plaintiff's claims against Mohawk under the ruling from DiMeo v. Rotterdam Emergency Med. [*2]Svcs., Inc. (110 AD3d 1423 [3d Dept 2013]).

Mohawk offers the deposition testimony of one of the City's Paramedics, William Angle, and one of Mohawk's EMT's, Tyler Desjardins. Mohawk also offers an affidavit from Kenneth Dott, its Executive Director of Education. Mr. Dott describes the need for clear lines of authority and control at the scene of an emergency. He states that the Desjardins testimony is consistent with the policy found in the Collaborative Protocols. While it is clear from the deposition testimony that the City Paramedics were first on the scene and were taking the lead on assessment and treatment, the testimony from Mr. Desjardins as to control of the scene is somewhat equivocal. For example, when asked about the authority of the Paramedics, Desjardins testifies:

I mean, they were generally in charge. So we were following their orders for the most part. I don't remember any like specific like, Hey, Tyler, you do this, but I'm sure they did direct me what to do.

Likewise, when asked about his ability to refuse instructions from the Paramedics, Mr. Desjardins was equivocal:

Unless they told me to do something I mean illegal, obviously, or anything like that, but generally speaking, you do what they tell you.

While Mohawk offers a copy Protocol 5.17 from the Collaborative Advanced Life Support Adult and Pediatric Treatment Protocols, the Court takes judicial notice of the complete Protocols, which are offered as an exhibit to the City of Schenectady's motion for summary judgment in this case. The introductory language to the Protocols states that they are not intended to be "absolute treatment documents," but principles and directives that are sufficiently flexible to adapt to particular treatment scenarios.

Also, the DiMeo opinion does not specifically hold that EMT's are required to obey all instructions from Paramedics. The plaintiff in DiMeo claimed EMT negligence in, among other things, choosing to transport the patient to a more distant hospital and failing to request that a Paramedic accompany the patient in the ambulance. The opinion notes that the EMT's had provided medical care at the scene but does not detail what was done or who decided to do it. With regard to the choice of hospital and whether to accompany the patient in the ambulance, the DiMeo court held that the Paramedic's ultimate authority under the Protocols meant that those particular decisions were for the Paramedic to make.

The situation here is similar but not identical. Plaintiff has alleged negligence in nearly every action and inaction by responders, specifically including the initiation and continuation of CPR. In order for Mohawk to prevail, it would need to show as a matter of law that the EMT's were completely subject to the control of the Paramedics with no independent judgment or authority. However, the record here does not provide sufficient detail to parse each action (or inaction) and assess which particular actors were responsible. The evidence offered by Mohawk thus does not show that EMT's were simply obedient to every instruction from Paramedics and powerless to do anything but what they were instructed to do. Mohawk has not carried its initial burden of proof.

Moreover, assuming for the sake of argument that Mohawk has carried its initial burden of proof would not equate to ultimate success on this motion. In opposition, Plaintiff submits the affirmation of Rachel Waldron, MD, who is offered as an expert. Dr. Waldron finds specific [*3]fault with the procedures followed by the emergency medical personnel at the Scott home and specifically opines that the failure of the Mohawk EMT's to take steps that were within the scope of their authority constituted professional malpractice and negligence. The Waldron Affirmation would be sufficient to raise questions of fact sufficient to defeat Mohawk's motion.

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

ORDERED, that the motion by defendant Mohawk Ambulance Service seeking summary judgment dismissing the Complaint as against it is denied.

Notice of Motion; Affirmation of Steven C. Shahan, Esq., with annexed exhibits; Affidavit of Kenneth Dott; Memorandum of Law; Affirmation in Opposition of Richard J. Katz, Esq., with annexed exhibits.