Davis v. City of New York

Davis v City of New York 2026 NY Slip Op 05766 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Justin Davis, etc., respondent, v City of New York, et al., appellants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2025-01939, (Index No. 724939/20) Colleen D. Duffy, J.P. Linda Christopher Carl J. Landicino Susan Quirk, JJ. Steven Banks, Corporation Counsel, New York, NY (Melanie T. West and Chloé K. Moon of counsel), for appellants. Desimone & Associates, LLC (The Altman Firm PLLC, Woodmere, NY [Michael T. Altman], of counsel), for respondent. [*1] DECISION & ORDER In an action, inter alia, to recover damages for negligence and wrongful death, etc., the defendants appeal from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), dated December 10, 2024. The order denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, granted the plaintiff's cross-motion for summary judgment on the issue of liability, and denied the defendants' separate motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated July 31, 2024, granting the plaintiff's unopposed motion pursuant to CPLR 3216 to strike the defendants' answer to the extent of precluding the defendants from offering any evidence, testimony, or affidavits in support of or in opposition to any dispositive motion or at the time of trial on the issue of liability. ORDERED that the order dated December 10, 2024, is modified, on the law, (1) by deleting the provision thereof denying the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and substituting therefor a provision granting the motion, and (2) by deleting the provision thereof granting the plaintiff's cross-motion for summary judgment on the issue of liability, and substituting therefor a provision denying the cross-motion; as so modified, the order dated December 10, 2024, is affirmed, with one bill of costs to the defendants. The plaintiff, individually and as administrator of the decedent's estate, commenced this action against the City of New York and certain of the City's agencies, inter alia, to recover damages for negligence and wrongful death. The plaintiff alleged that, after the decedent's coworker called the 911 emergency number, the defendants were negligent in dispatching an ambulance that was not equipped with oxygen to treat the decedent's asthma attack. In April 2024, the plaintiff moved pursuant to CPLR 3216 to strike the defendants' answer based upon the defendants' failure to comply with certain discovery obligations. In an order dated July 31, 2024, the Supreme Court granted the plaintiff's unopposed motion to the extent of precluding the defendants from offering any evidence, testimony, or affidavits in support of or in opposition to any dispositive motion or at the time of trial on the issue of liability. On July 12, 2024, the defendants moved pursuant to CPLR 3211(a) to dismiss the [*2]complaint. In August 2024, the defendants separately moved, among other things, pursuant to CPLR 5015(a)(1) to vacate the order dated July 31, 2024. The plaintiff opposed both motions and cross-moved for summary judgment on the issue of liability. In an order dated December 10, 2024, the Supreme Court denied the defendants' motions and granted the plaintiff's cross-motion. The defendants appeal. A party seeking to vacate an order entered upon its default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1]; Ackerson Bldrs., LLC v Corbett, 245 AD3d 661, 662). The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse where that claim is supported by a detailed and credible explanation of the default at issue (see CPLR 2005; Ki Tae Kim v Bishop, 156 AD3d 776, 777). Here, the Supreme Court providently exercised its discretion in determining that the defendants failed to present a reasonable excuse for their default. The defendants' mistaken belief that the automatic stay of disclosure (see CPLR 3214[b]) also stayed the plaintiff's motion pursuant to CPLR 3216 to strike the defendants' answer did not constitute a reasonable excuse (see McNaughton v 5 W. 14 Owners Corp., 235 AD3d 471, 474; US Bank N.A. v Salvatierra, 205 AD3d 757, 759). Moreover, the defendants' excuse is contradicted by their request for a further adjournment on the return date of the motion (see Bank of Am., N.A. v Wood, 185 AD3d 768, 769). Accordingly, the Supreme Court providently exercised its discretion in denying the defendants' motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order dated July 31, 2024 (see MTGLQ Invs., L.P. v Wise, 239 AD3d 735, 737). However, an order precluding the submission of evidence, unlike the striking of an answer, does not relieve the plaintiff of his or her obligation to establish a prima facie case in the first instance (see Abraham v Torati, 219 AD3d 1275, 1283; Mendoza v Highpoint Assoc., IX, LLC, 83 AD3d 1, 6). The purpose of a preclusion order is to make the demanding party whole (see Northway Eng'g v Felix Indus., 77 NY2d 332, 337). To further preclude the defendants from asserting defenses which require only general denials, despite the existence of a genuine factual dispute, deprives the defendants of their day in court and gives the plaintiff more relief than is warranted by the defendants' failure to comply with their disclosure obligations (see id.). Thus, contrary to the plaintiff's contention, the order dated July 31, 2024, precluding the defendants "from offering any evidence . . . and/or affidavits in support of or in opposition to any dispositive motion," did not preclude the defendants from submitting legal arguments in an attorney affirmation or from referring to the parties' pleadings. When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party (see Applewhite v Accuhealth, Inc., 21 NY3d 420, 423-424; Canberg v County of Nassau, 214 AD3d 943, 945). As relevant here, a municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiff where there is (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 (see Cuffy v City of New York, 69 NY2d 255, 260; Marino v City of New York, 223 AD3d 888, 890). It is the plaintiff's obligation to prove that the government defendant owed a special duty of care to the injured party because the duty is an essential element of the negligence claim itself (see Applewhite v Accuhealth, Inc., 21 NY3d at 426; Canberg v County of Nassau, 214 AD3d at 946). On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Goshen v Mutual Life Ins. Co. [*3]of N.Y., 98 NY2d 314, 326). In addition, the court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects (see Jennings v Metropolitan Transp. Auth., 226 AD3d 662, 663). Nevertheless, conclusory allegations with no factual specificity are insufficient to survive a motion to dismiss (see Godfrey v Spano, 13 NY3d 358, 373). Here, accepting the facts in the complaint as amplified by the plaintiff's evidentiary submissions as true and according the plaintiff the benefit of every favorable inference, the plaintiff failed to allege facts which would establish that the defendants voluntarily assumed a duty or special relationship with the decedent beyond what was owed to the public generally (see Boland v City of New York, 209 AD3d 960, 961; Coleman v County of Suffolk, 192 AD3d 857, 859). The complaint does not allege that the defendants undertook an affirmative duty to provide a specific type of ambulance to the decedent (see Hinkson v New York-Presbyterian Queens, 244 AD3d 589, 591), that the decedent had any form of direct contact with the defendants' agents (see Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 715; Laratro v City of New York, 8 NY3d 79, 83-84), or that the decedent justifiably relied on any affirmative undertaking of the defendants (see Koyko v City of New York, 189 AD3d 811, 813; Holloway v City of New York, 141 AD3d 688, 690). Accordingly, the Supreme Court should have granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiff's cross-motion for summary judgment on the issue of liability. The defendants' remaining contention need not be reached in light of our determination. DUFFY, J.P., CHRISTOPHER, LANDICINO and QUIRK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court