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October 15, 1998

Kim Palmer, individually and as Administrator of the estate of Frank Palmer, Plaintiffs against The City of Yonkers, City of Yonkers Fire Department, Empress Ambulance Service, Inc., John Doe, Numbers 1,2,3&4, and Jane Doe, Corporation, Defendants.

The opinion of the court was delivered by: PARKER



 Plaintiff Kim Palmer brought this suit, individually and as the administrator of the estate of Frank Palmer, her husband, against the City of Yonkers ("Yonkers" or the "City"), the City of Yonkers Fire Department ("Fire Department"), Empress Ambulance Service, Inc. ("Empress"), John Doe 1,2,3,4 and Jane Doe (collectively the "defendants") *fn1" for violations of rights under the Fourteenth Amendment of the United States Constitution, the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA"), the Federal Rehabilitation Act, 29 U.S.C. § 794, et. seq. ("FRA"), the Civil Rights Act of 1871, 42 U.S.C. § 1983 and various state laws. *fn2" Defendants have moved pursuant to Fed. R. Civ. P. Rule 56 for summary judgment. *fn3" For the reasons stated below, the motion is granted.


 Pursuant to an agreement ("Agreement") with Yonkers dated September 1, 1993, Empress provides ambulance services to Yonkers residents. At approximately 5:00 a.m. on July 9, 1996, Kim Palmer found her husband, Frank Palmer, who had Acquired Immune Deficiency Syndrome ("AIDS"), laying nude on the kitchen floor in his diarrhea feces conscious but with a fever. Palmer called her husband's Hospice and was told they would arrange transportation to a hospital. When the transportation did not arrive after an half-hour, Palmer again called the Hospice, and when the transportation still did not arrive, she called 911. Palmer told the 911 operator that had husband had AIDS, had fallen, and that she needed help.

 Approximately fifteen minutes after the call, three men (John Does, Numbers 1,2 & 3) from the Yonkers Fire Department arrived. The Fire Department participates in the First Responder Program which provides on the scene basic first aid care. The Fire Department does not operate ambulances, and state and federal law do not permit the use of fire trucks as ambulances. Palmer asked the firemen to take her husband to the hospital and the firemen responded that the paramedics and an ambulance would be three shortly. In the interim, they administered oxygen to Mr. Palmer and soon departed. A couple of minutes later paramedics from Empress (Jane Doe and John Doe, Number 4) arrived.

 Palmer explained to Empress what was wrong with her husband and requested transportation to the hospital. John Doe Number 4 responded that her husband's condition reflected the usual course with AIDS and the hospital would only rehydrate him, keep him for a couple of hours and she would then have to bring him back home. The Empress paramedics moved Mr. Palmer to the couch, but refused to take him to the hospital. Thereafter, Palmer called a taxicab that transported her husband to the Westchester County Medical Center arriving about 11:30 a.m. Palmer's husband stayed at the hospital for approximately three weeks. He was then transferred to a nursing facility where he remained until his death on May 29, 1997.

 Palmer brings this suit for declaratory and injunctive relief and monetary damages for alleged violations of the Fourteenth Amendment of the Constitution, the ADA, the FRA and 42 U.S.C. § 1983. She also asserts various state law claims. Specifically, Palmer claims the defendants discriminated against her husband by refusing to provide ambulance services because of his AIDS condition. On August 28, 1997 Empress filed for protection pursuant to Chapter 11 of the Bankruptcy Code and was dismissed from this action. See 11 U.S.C. § 362(a)(1). This motion considers whether the Fire Department violated a duty to Palmer and whether the City is vicariously liable for Empress' conduct.


 1. Summary Judgment Standard

 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Dep't. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996). The Court must not weigh evidence or assess the credibility of potential witnesses, for such evaluations are to be conducted solely by the jury. Hayes, 84 F.3d at 619; United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994); Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). A finding of disputed material facts that could reasonably be resolved in favor of either party precludes summary judgment. Wernick, 91 F.3d at 382 (quoting Anderson v. Liberty Lobby, 477 U.S. at 250).

 Generally, the burden is on the moving party to demonstrate that there is no genuine dispute respecting any material fact and that he is entitled to judgment as a matter of law. In re State Police Litigation, 88 F.3d at 123; Gallo v. Prudential Residential Services, Limited Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). To successfully oppose a motion for summary judgment, the responding party "must set forth facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A summary judgment motion cannot be defeated through mere speculation or conjecture. Pollis v. New School for Social ...

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