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Peters v. City of New York11/23/2004
the NYCHHC is not warranted (see Byrne, 301 AD2d at 490; Fellin, 268 AD2d at 456; Kaplan, 265 AD2d at 307). Moreover, since the City and the NYCHHC are, in any event (as discussed below), entitled to summary judgment dismissing the complaints in action # 1 and action # 2 as against them as a matter of law, any order directing the preclusion of the City and the NYCHHC from offering evidence with respect to the issues which are the subject of outstanding discovery orders, is rendered moot. Consequently, the respective motions and cross motions by Peters, Cowan, and Ahmed for sanctions, pursuant to CPLR 3126, must be denied.
In addressing the cross motion by the City and the NYCHHC for summary judgment dismissing the complaints as against them in action # 1 and action # 2, it is noted that Peters and Cowan base their claims against the City and the NYCHHC on the alleged negligence of the EMS workers in failing to take reasonable measures to warn drivers of the first accident and to control traffic in the area. Specifically, Peters and Cowan rely upon an operating guide of the New York City EMS and the deposition testimony of James D. Scullion (Scullion), a lieutenant/paramedic with the NYCHHC, who arrived at the scene after the second accident occurred and who testified as to the guidelines for the operation of EMS vehicles set forth in this operating guide.
Paragraph 13a of the operating guide describes that the procedure to be followed by EMS workers is to " osition the ambulance, with appropriate warning lights on, in such a manner as to protect the working environment and warn approaching motorists of the hazard." Paragraph 13c and d of the operating guide state, respectively, that EMS workers shall " se appropriate flare pattern to warn approaching motorists of the hazard" and " lose as many lanes of traffic as necessary to ensure a safe working environment." Paragraph 14 of the operating guide specifies that the " lares shall be placed in a linear pattern to direct oncoming motorists away from the accident site," and direct EMS workers to " ote that the warning flare furthest away from the scene should be at least 300 feet away to allow for adequate stopping distance at highway speeds."
Peters and Cowan state that based upon Scullion's deposition testimony as to his observations of the accident scene, the flares extended only about 50 to 60 feet, instead of the 300 feet called for by the operating guide. They argue that this did not allow for adequate stopping distance at highway speeds for oncoming vehicles. Peters and Cowan further contend that the EMS workers, in violation of the guidelines set forth in the operating guide, erroneously parked the ambulance in front of Peters' vehicle instead of behind it, blocking Church-Ford's view of the flashing lights on the ambulance, so that he did not notice the flashing lights in time to avoid the accident.
"It is well settled [,however,] that a municipality cannot be held liable for negligence in the performance of a governmental function unless a special relationship exists between the municipality and the injured party" (Eckert v State of New York, 3 AD3d 470, 470 ; see also Balsam v Delma Eng'g. Corp., 90 NY2d 966, 967 ; Cuffy v City of New York, 69 NY2d 255, 260 ; Respass v City of New York, 288 AD2d 286, 287 ; Haggerty v Diamond, 251 AD2d 455, 455 ). " raffic regulation, including the placement of road flares, [has been held to be] . . . 'a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police power'" (Eckert, 3 AD3d at 470, quoting Balsam, 90 NY2d at 968; see also DiFlorio v Worden, 303 AD2d 924, 924 ; Respass, 288 AD2d at 287; Gonzalez
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