BY BRYANT v. CITY OF NEW YORK (2026)

Order, Supreme Court, Bronx County (Michael A. Frishman, J.), entered September 19, 2025, which, to the extent appealed from, denied the separate motions of defendants the City of New York and the Fire Department of the City of New York (FDNY) (together, the City) and defendant Empress Ambulance Service, LLC for summary judgment dismissing the amended complaint as against them, modified, on the law, to dismiss the cause of action for negligent hiring, training, and retention (the fourth cause of action) as against the City, and otherwise affirmed, without costs.

This medical malpractice action stems from defendants’ alleged negligence during infant plaintiff I.M.’s birth.  On June 26, 2020, plaintiff Denise Bryant learned that she was pregnant with twins.  In the early morning hours of August 30, 2020, at approximately 2 a.m., Bryant went into labor and called 911.  EMTs from the FDNY arrived at 2:04 a.m. The first twin, E.M., was delivered at 2:10 a.m., shortly after arrival of the EMTs. Paramedics from Empress arrived at the scene at approximately 2:14 a.m. The parties and witnesses disagree about the events and conversations that took place after 2:10 a.m. The EMTs and the Empress paramedics ultimately transported Bryant and E.M. to North Central Bronx Hospital, where Bryant delivered I.M. at approximately 2:50 a.m. I.M. was immediately transferred to the neonatal intensive care unit where doctors determined that he suffered from multiple birth defects, including hypoxic ischemic encephalopathy, a brain injury caused from insufficient oxygen in utero.

Plaintiffs sued Empress and the City, alleging that defendants deviated from good and accepted practice by failing to deliver I.M. either in Bryant's home or in the ambulance, and by either instructing Bryant not to push or failing to instruct her to push.  They further alleged that these deviations delayed I.M.’s delivery, causing serious injuries to the infant and loss of chance at a better outcome.  Both defendants moved for summary judgment.  Supreme Court denied the motion in full.  We modify to dismiss the cause of action for negligent hiring, training, and retention as against the City, and otherwise affirm.

First, Supreme Court correctly held that issues of fact remain as to whether the City owed a special duty to plaintiffs.  The parties do not dispute that the City was engaged in a governmental function at the time of the underlying events.  Therefore, “the next inquiry focuses on the extent to which the municipality owed a ‘special duty’ to the injured party” (Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ).  Plaintiffs argue that the City voluntarily assumed a duty to plaintiffs beyond what was owed to the general public.  In order to establish that special relationship, plaintiffs must prove:  “(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 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987] ).  The City disputes only the second element, that the EMTs knew that their inaction could lead to harm.

Supreme Court correctly held that there are issues of fact as to whether the EMTs who first responded to Bryant's 911 call knew that their inaction – specifically, instructing Bryant not to push, and not attempting to deliver I.M. in Bryant's home – could lead to harm, and thus whether the City owed plaintiffs a special duty (see id.).  The EMTs both testified that they were aware of the applicable Regional Emergency Medical Advisory Committee (REMAC) protocols, which govern emergency medical services in New York City. The parties’ competing expert opinions as to what the EMTs were required to do in accordance with those protocols raise an issue of fact as to the EMTs’ knowledge at the time of the underlying events (see e.g. Artemiou v. City of New York, 220 A.D.3d 437, 439, 197 N.Y.S.3d 490 [1st Dept 2023] ).¹  Although the record does not contain any explicit evidence that the EMTs knew their inaction could lead to harm, plaintiffs may prove this element by circumstantial evidence as to what the EMTs should have known at the time that they responded to Bryant's 911 call (see Coleson v. City of New York, 24 N.Y.3d 476, 482, 999 N.Y.S.2d 810, 24 N.E.3d 1074 [2014];  Sciortino v. Leo, 60 A.D.3d 1470, 1471, 876 N.Y.S.2d 308 [4th Dept 2009], lv denied 13 N.Y.3d 706, 887 N.Y.S.2d 3, 915 N.E.2d 1181 [2009] ).

Nor did the City establish its entitlement to governmental function immunity, as it did not establish that its actions “actually resulted from discretionary decision-making — i.e., ‘the exercise of reasoned judgment [that] could typically produce different acceptable results’ ” (Valdez v. City of New York, 18 N.Y.3d 69, 79–80, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011], quoting Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ).

Here, the parties dispute what the REMAC protocols required of the EMTs, but they both agree that the EMTs’ actions are to be guided by those protocols.  Under the REMAC protocols, when responding to a call involving multiple births, the EMTs are to (1) deliver each multiple birth according to the protocol for emergency childbirth, making sure to tie each umbilical cord between births;  (2) clamp and cut the cord of the first neonate prior to the next birth;  and (3) if the second birth does not occur within 10 minutes, begin transport.

The City argues that properly understood, the REMAC protocols impart that childbirth—particularly multiple births—carries risks that must be assessed by EMTs and paramedics in choosing a course of action.  The City further argues that the EMTs exercised discretion in applying the REMAC protocols, and therefore that its decision not to attempt an on-scene delivery and instead to transport Bryant to North Central Bronx Hospital was both discretionary in nature and complied with the REMAC protocols.

Plaintiffs disagree.  They argue that the REMAC protocols set out clear mandates and instructions which the EMTs failed to follow.  Specifically, they argue that pursuant to the REMAC protocols, the EMTs had a duty to attempt for 10 minutes to deliver I.M. on the scene before initiating transport.  Plaintiffs further argue that, rather than making appropriate discretionary decisions under REMAC, the EMTs disregarded the REMAC protocols and substituted their own independent judgment.  Accordingly, they argue that the City should not be able to escape liability under the governmental function immunity exception.

We agree with Supreme Court that issues of fact remain as to whether the EMTs correctly followed the REMAC protocols and whether their decisions were discretionary.  Valdez held that while there can be little dispute that the governmental function of EMTs responding to emergencies involves the exercise of judgment and discretion, based upon a variety of factors present in an emergency and the urgencies of any given situation, the focus must be on “the conduct on which liability is predicated” (Valdez, 18 N.Y.3d at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356).  Contrary to the dissent's contention, this case differs from Morales v. City of New York, 235 A.D.3d 595, 229 N.Y.S.3d 124 [1st Dept 2025] ).  There, the plaintiffs failed to identify any specific protocol that the first responders supposedly violated, and this Court held that “a generally uniform approach in assessment and care” did not “change the discretionary nature” of the first responders’ actions (id. at 597, 229 N.Y.S.3d 124).  In contrast, plaintiffs here argue that the EMTs failed to follow clear directives under the REMAC protocols and that the REMAC protocols called for a clear course of action that the EMTs did not follow.  Therefore, we affirm Supreme Court's denial of summary judgment as to plaintiffs’ negligence claims.

The cause of action for negligent hiring, training, and retention as against the City is dismissed, as plaintiffs did not oppose that branch of the City's motion in Supreme Court, nor do they oppose it on appeal.

Second, as to Empress's appeal, Empress established its prima facie entitlement to summary judgment dismissing plaintiffs’ cause of action for malpractice as against it through the opinion of its expert emergency medicine physician.  Empress's expert explained in detail what the standard of care was under the applicable REMAC protocols, why that was the applicable standard of care, the evidence that Empress's paramedics did not depart from that standard, and the reasons that I.M.’s claimed injuries were not causally related to any claimed departures by Empress's paramedics from the applicable standard of care (see e.g. Buckner v. St. Luke's Roosevelt Hosp. Ctr., 103 A.D.3d 535, 535, 962 N.Y.S.2d 51 [1st Dept 2013] ).  In opposition, plaintiffs raised issues of fact through the opinions of their expert paramedic and OB/GYN.  Plaintiffs’ experts explained, in just as much detail as Empress's expert, what was required of Empress's paramedics under the applicable REMAC protocols, why it was required of them, how the Empress paramedics departed from the applicable protocols, and how those departures proximately caused I.M.’s injuries.  Accordingly, the parties’ “dueling expert opinions raise issues of fact and credibility that cannot be resolved on a motion for summary judgment” (Labby v. Cummings, 246 A.D.3d 663, 665, 252 N.Y.S.3d 68 [1st Dept 2026], quoting Diaz v. NYU Langone Med. Ctr., 192 A.D.3d 534, 536, 144 N.Y.S.3d 699 [1st Dept 2021] ).

We have considered Empress's remaining contentions and find them unavailing.

Assuming without conceding that the majority is correct in stating that issues of fact remain as to whether a special duty exists, the City has nevertheless established entitlement to governmental function immunity precluding liability, as the actions taken by the EMTs were discretionary.  Therefore, while I agree with the majority that Supreme Court correctly denied Empress's motion for summary judgment, I dissent in part and would modify the Supreme Court's order to grant the City's motion for summary judgment and dismiss the complaint as against it.

When the doctrine of special duty and governmental function immunity “are asserted in a negligence case, the rule that emerges is that ‘[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general’ ” (Valdez v. City of New York, 18 N.Y.3d at 69, 76–77, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011];  see also Ferreira v. City of Binghamton, 38 N.Y.3d 298, 311, 173 N.Y.S.3d 484, 194 N.E.3d 239 [2022] ).  In other words, when a court determines that a municipality was exercising a governmental function, the municipality is absolutely immune from liability if the conduct was discretionary (see Ferreira, 38 N.Y.3d at 311, 173 N.Y.S.3d 484, 194 N.E.3d 239 [“Even if a plaintiff satisfies their burden of demonstrating that a special duty exists, a municipality acting in a discretionary governmental capacity may rely on the governmental function immunity defense” (internal quotation marks omitted) ];  Applewhite v. Accuhealth, Inc., 21 N.Y.3d at 420, 426, 972 N.Y.S.2d 169, 995 N.E.2d 131 [2013] ).

It is undisputed that the City was engaged in a governmental function at the time of the underlying events (see Applewhite, 21 N.Y.3d at 430, 972 N.Y.S.2d 169, 995 N.E.2d 131 [“a municipal emergency response system—including the ambulance assistance rendered by first responders such as the FDNY EMTs in this case—should be viewed as ‘a classic governmental, rather than proprietary, function’ ”] ).  Therefore, to recover from the City, plaintiffs must first demonstrate that the EMTs owed them a special duty of protection (see id. at 426, 972 N.Y.S.2d 169, 995 N.E.2d 131).  If a special duty is found, plaintiffs must then demonstrate that the City is not entitled to a governmental function immunity defense because the allegedly negligent acts were ministerial, or if of a discretionary nature, that the EMTs failed to exercise discretion while performing the action taken (see id. at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131;  Valdez, 18 N.Y.3d at 75–77, 936 N.Y.S.2d 587, 960 N.E.2d 356;  McLean v. City of New York, 12 N.Y.3d 194, 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009];  Haddock v. City of New York, 75 N.Y.2d 478, 485–486, 554 N.Y.S.2d 439, 553 N.E.2d 987 [1990] ).

Conversely, to succeed on a motion for summary judgment, the City must prove that plaintiffs cannot overcome the threshold burden of demonstrating that the EMTs owed them a special duty or that regardless of a special duty existing, it is entitled to governmental function immunity because the action taken resulted from discretionary decision-making (see Applewhite, 21 N.Y.3d at 425, 972 N.Y.S.2d 169, 995 N.E.2d 131;  Valdez, 18 N.Y.3d at 75–77, 936 N.Y.S.2d 587, 960 N.E.2d 356;  McLean, 12 N.Y.3d at 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167;  Haddock, 75 N.Y.2d at 485–486, 554 N.Y.S.2d 439, 553 N.E.2d 987).  Here, under either analysis, the City is entitled to summary judgment as plaintiffs failed to raise an issue of fact as to the discretionary nature of the EMTs’ actions (see Morales v. City of New York, 235 A.D.3d at 595, 597, 229 N.Y.S.3d 124 [1st Dept 2025] [“the City demonstrated that the responding firefighters’ actions resulted from discretionary decision-making, including the method by which plaintiffs’ decedent exited the building, after considering their conversations with her, their observations of her, and the conclusions drawn after their assessment of her condition”];  see also Kinsey v. City of New York, 141 A.D.3d 420, 421, 36 N.Y.S.3d 8 [1st Dept 2016], lv denied 28 N.Y.3d 907, 45 N.Y.S.3d 375, 68 N.E.3d 104 [2016] ).²

This Court's decision in Morales v. City of New York, 235 A.D.3d at 595, 229 N.Y.S.3d 124) is instructive.  In Morales, plaintiffs’ expert opined that the existence of a Certified First Responder “assessment ‘protocol’ [that] provided a mandatory course of action from which firefighters could not deviate” when responding to a cardiac arrest event, rendered their actions “ministerial” and subject to a non-discretionary standard procedure (id. at 597, 229 N.Y.S.3d 124 [internal quotations marks omitted] ).  However, this Court held that “a generally uniform approach in assessment and care does not change the discretionary nature of the [municipal employees’] actions” (id.).

As applied here, it is undisputed that the Regional Emergency Medical Advisory Committee (REMAC) protocols are instructive as to the medical care provided by the EMTs. These protocols do not detract from the discretionary nature of their decisions (see id.).  Under the REMAC protocols, when responding to a call involving multiple births, the EMTs are to “(1) [d]eliver each multiple birth according to the protocol for emergency childbirth, making sure to tie each umbilical cord between births”;  “(2) [c]lamp and cut the cord of the first neonate prior to the next birth”;  and “(3) [i]f the second birth does not occur within 10 minutes, begin transport.”  While the EMTs’ remaining actions are guided by the REMAC emergency childbirth protocols, the protocols simply outline the steps taken during delivery and childbirth.³  Otherwise, the EMTs’ actions are guided by the discretionary determinations made on scene, both as to the steps taken within the 10–minute window, and as to the imminency of childbirth (see Morales, 235 A.D.3d at 597, 229 N.Y.S.3d 124).⁴

In responding to Bryant's 911 call, the EMTs exercised reasoned judgment in deciding that after the birth of E.M., transporting Bryant, rather than attempting delivery of I.M., was the appropriate action.  This choice was made after the EMTs determined that I.M. was not crowning and that the mother did not have the urge to push.  After their decision, the EMTs immediately began transporting the mother, and transferred the care of the mother and I.M. to Empress exactly five minutes after the birth E.M., well in line with the REMAC protocols (see Valdez, 18 N.Y.3d at 76, 936 N.Y.S.2d 587, 960 N.E.2d 356).

Contrary to the majority's argument, the City's contention “that the FDNY EMTs’ decisions not to attempt to deliver I.M. in Bryant's home, and instead to transport her to a hospital to deliver I.M., were the only acceptable decisions under the applicable REMAC protocols” does not negate their entitlement to governmental function immunity.  Rather, the City simply contends that the EMTs made the best choice under the circumstances.  Specifically, the City's experts posit that the EMTs had to decide within the 10–minute window after the birth of E.M. which option was better for the mother and child, deliver I.M. in the home or transport them to the hospital.  Even crediting plaintiffs’ experts’ belief that transporting Bryant was the wrong choice, it was a choice based on reasoned judgment and was discretionary in nature (see Morales, 235 A.D.3d at 597, 229 N.Y.S.3d 124 [“The expert's remaining conclusions related to the quality of the care rendered by the firefighters ․ even if such decisions prove to be erroneous ․ do not cast the City in damages.”] [internal quotations and citations omitted];  Valdez, 18 N.Y.3d at 79–80, 936 N.Y.S.2d 587, 960 N.E.2d 356).

Therefore, while I am extremely empathetic to the circumstances of this case, I believe that the City has established entitlement to governmental function immunity precluding liability for the EMTs’ actions.  As such, I would modify Supreme Court's order to the extent of granting the City's motion for summary judgment and dismissing the complaint as against it.

FOOTNOTES

1.   Accordingly, we respectfully disagree with the dissent that either defendant has established, as a matter of law, what the REMAC protocols required of the EMTs under the circumstances.

2.   This reasoning has also been adopted by other departments of the Appellate Division (see Kralkin v. City of New York, 204 A.D.3d 772, 773, 166 N.Y.S.3d 663 [2d Dept 2022] [“Because the actions of the EMTs were discretionary, this Court need not address the issue of whether a special duty was owed to the plaintiff”];  DiMeo v. Rotterdam Emergency Med. Servs., Inc., 110 A.D.3d 1423, 1424, 974 N.Y.S.2d 178 [3d Dept 2013], lv denied 22 N.Y.3d 864, 986 N.Y.S.2d 18, 9 N.E.3d 368 [2014] [“the special relationship issue is irrelevant where the government action in question is discretionary”] ).

3.   To the extent relevant, the REMAC emergency childbirth protocols only detail the steps to take when the mother is in active labor, including visually inspecting the perineum for bulging and crowning to determine if delivery is imminent.  However, the mother was examined and assessed by one of the EMTs on scene and it was determined that I.M. was not crowning and birth would not be immediate.  Based on these circumstances, the remaining REMAC emergency childbirth protocols were not applicable.

4.   The REMAC protocols do not require the EMTs to attempt childbirth for 10 minutes.  Therefore, following the majority's rationale, the EMTs’ error was attempting to transport the mother and I.M. to the hospital, where they would be best served and where I.M.’s vitals could be monitored, as soon as they made the discretionary determination that birth was not imminent, rather than waiting the full 10 minutes before transporting them to the hospital.

All concur except Pitt–Burke and Chan, JJ., who dissent in part in a separate memorandum by Pitt-Burke, J as follows: