BROWN v. The City of New York Fire Department, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Diana BROWN, etc., Plaintiff-Appellant, v. TRANSCARE NEW YORK, INC., et al., Defendants, The City of New York Fire Department, et al., Defendants-Respondents.

Decided: March 23, 2006

TOM, J.P., FRIEDMAN, SULLIVAN, GONZALEZ, CATTERSON, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Victoria Scalzo of counsel), for respondents.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered November 16, 2004, which, to the extent appealed from as limited by the briefs, granted the cross motion of the municipal defendants for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

 There were no triable issues of fact as to whether the City defendants could be held vicariously liable for the actions of defendant St. Barnabas Hospital's contractor, defendant Transcare New York, where the ambulance and its personnel were not hired, compensated or trained by the City defendants (see Hilsen v. City of New York, 254 A.D.2d 10, 677 N.Y.S.2d 922 [1998], lv. denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443 [1998] [no vicarious liability for actions of private hospital's employees and ambulance paramedics dispatched by defendant municipal emergency ambulance service] ).   Plaintiff's argument that the City exercised sufficient control over St. Barnabas and Transcare to impose liability is improperly raised by plaintiff for the first time on appeal.   In any event, the standard agreement between the Fire Department and St. Barnabas does not demonstrate a level of control necessary to impose liability on the City. Nor may the City be held vicariously liable on the theory that Transcare was an independent contractor performing inherently dangerous work, as the medical services provided are not inherently dangerous (Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 584 N.Y.S.2d 765, 595 N.E.2d 840 [1992];  Robinson v. Jewish Hosp. Med. Ctr. of Brooklyn, 275 A.D.2d 362, 364, 712 N.Y.S.2d 585 [2000], lv. denied 96 N.Y.2d 705, 725 N.Y.S.2d 277, 748 N.E.2d 1073 [2001];  see also Saini v. Tonju Assoc., 299 A.D.2d 244, 750 N.Y.S.2d 55 [2002];  cf. Baraban v. Orient-Express Hotels, 292 A.D.2d 203, 739 N.Y.S.2d 366 [2002] ).

 Plaintiff has also failed, as a matter of law, to demonstrate any special relationship giving rise to a duty owed by the municipality to plaintiff's decedent (see Pelaez v. Seide, 2 N.Y.3d 186, 198-200, 778 N.Y.S.2d 111, 810 N.E.2d 393 [2004];  Lauer v. City of New York, 95 N.Y.2d 95, 102, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000];  Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 [1987];  Laratro v. City of New York, 25 A.D.3d 184, 193-194, 808 N.Y.S.2d 145).   There is no triable issue regarding the lack of any direct contact between the decedent and the City defendants, or the decedent's justifiable reliance, where it is uncontested that the 911 call was made by a Good Samaritan neighbor who did not even know the decedent (see Kircher v. City of Jamestown, 74 N.Y.2d 251, 257-258, 544 N.Y.S.2d 995, 543 N.E.2d 443 [1989];  Cuffy, 69 N.Y.2d at 262, 513 N.Y.S.2d 372, 505 N.E.2d 937;  Baez v. City of New York, 309 A.D.2d 679, 765 N.Y.S.2d 875 [2003] ), and there is no evidence that the decedent even knew an ambulance had been called.

 Plaintiff's arguments regarding the alleged negligence of the dispatcher and the medical control officer are precluded, as they were not raised in plaintiff's notice of claim (see Chieffet v. New York City Tr. Auth., 10 A.D.3d 526, 782 N.Y.S.2d 56 [2004] ), and are in any event without merit.   There is no basis, other than vague and conclusory claims, to support plaintiff's assertion that further discovery might lead to any evidence relevant to triable issues of fact (see Kershis v. City of New York, 303 A.D.2d 643, 756 N.Y.S.2d 786 [2003];  Bailey v. New York City Tr. Auth., 270 A.D.2d 156, 704 N.Y.S.2d 582 [2000] ).

Plaintiff's remaining contentions are without merit.