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Lebron v. New York City Housing Authority

Supreme Court of New York, First Department

February 15, 2018

Anaima Lebron, etc., Plaintiff-Respondent,
The New York City Housing Authority, Defendant-Appellant, The City of New York, Defendant.

          Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for appellant.

          Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for respondent.

          Manzanet-Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing, JJ.

         Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered October 24, 2016, which, to the extent appealed from, denied the motion of defendant New York City Housing Authority (NYCHA) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

         On October 25, 2008, the decedent, Yovanna Angomas, told her mother, plaintiff Anaima Lebron, that she was having an asthma attack. Plaintiff asked her other daughter to call 911 and began CPR. At approximately 8:27 p.m., EMTs arrived at the seventh floor apartment and found the decedent on the bedroom floor in respiratory arrest. Within minutes of this initial assessment, the decedent had no pulse, no vital signs, no blood pressure and appeared to be in cardiac arrest. Consequently, the EMTs requested the assistance of paramedics from an Advanced Life Services unit.

         At approximately 8:44 p.m., the paramedics arrived and attempted to put the decedent on a Lifepak 12 monitor, which malfunctioned. The paramedics then used an Automated External Defibrillator until a working Transcare monitor arrived at approximately 8:52 p.m., and continued to administer CPR and follow treatment protocols, including the administration of medications, in an effort to restart the decedent's heart. However, the decedent remained in asystole, a complete flatline indicating no heart rhythm. Nevertheless, the paramedics decided to transport her to the nearest hospital.

         Due to decedent's weight (approximately 300-400 pounds), the paramedics requested that the FDNY bring a Stokes basket, which arrived at approximately 9:02 p.m. After placing the decedent in the Stokes basket, which took approximately five minutes, the paramedics maneuvered the decedent into the elevator, which experienced stoppages on the way down. At 9:38 p.m., the decedent was placed in an ambulance and transported to the hospital, where she was pronounced dead shortly after her arrival.

         Plaintiff testified at her 50-h hearing that she left the apartment "like four minutes later" than the emergency personnel. It took her two minutes to get to the lobby and the decedent arrived 10 or 15 minutes later (amounting to a delay of between 16 and 21 minutes). At her deposition, plaintiff testified that she was waiting in the lobby for 30 minutes before the decedent arrived there.

         Paramedic Fieldcamp testified that she and two firefighters went into the elevator with the decedent. The elevator stopped one time and stuck between floors. It started to move and then got stuck a second time. While it felt like an eternity, it probably was not. EMT Roman testified that it took him three minutes to get from the decedent's apartment to the lobby. He waited 5 to 10 minutes for the elevator to arrive in the lobby and left for the hospital at 9:38 p.m., approximately an hour and 10 minutes from the first call.

         Plaintiff seeks to recover damages allegedly sustained due to NYCHA's negligence in maintaining the elevator on the grounds that it delayed paramedics from transporting the decedent to a nearby hospital for more intensive treatment.

         NYCHA failed to demonstrate that it lacked prior notice of elevator stoppages in the building, as its employee's testimony, and its maintenance records, submitted with its moving papers show that the elevators experienced numerous malfunctions and stoppages in less than two months before the incident (see Villalba v New York El. & Elec. Corp., Inc., 127 A.D.3d 650');">127 A.D.3d 650 [1st Dept 2015]; Scafe v Schindler El. Corp., 111 A.D.3d 556');">111 A.D.3d 556 [1st Dept 2013]). Although NYCHA's elevator repair person testified that a dispatcher would inform him when the elevator was broken, no logbook documenting complaints or an affidavit from someone who would actually receive complaints was produced.

         However, allegations of negligence, even if provable, are insufficient to establish liability absent proof that the negligence was a proximate cause of the injury (see Ohdan v City of New York, 268 A.D.2d 86, 89 [1st Dept 2000], appeal dismissed 95 N.Y.2d 885');">95 N.Y.2d 885 [2000], lv denied 95 N.Y.2d 769 [2000]). Although "issues of proximate cause are generally fact matters to be resolved by a jury" (Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 659 [1989]), "[t]here are certain instances... where only one conclusion may be drawn from the established facts and... the question of legal cause may be decided as a matter of law" (Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315 [1980]; see also D' Avilar v Folks Elec. Inc., 67 A.D.3d 472');">67 A.D.3d 472 [1st Dept 2009]).

         Here, NYCHA presented unrefuted evidence demonstrating that the decedent's cardiac rhythm was asystole, a dire form of cardiac arrest in which the heart stops beating and there is no electrical activity in the heart, and that she showed no signs of life in the hour between the arrival of emergency personnel and her transfer into the elevator, despite the emergency responders' continuous resuscitative efforts. Furthermore, NYCHA's medical expert stated that "[t]he prolonged and unsuccessful resuscitative course in an asystolic patient is associated with an extremely poor outcome" and that "the decedent's obesity made resuscitative efforts more difficult and further reduced [her] likelihood of survival." Thus, he opined, "within a reasonable degree of medical certainty[, ]... the outcome for the decedent would [not] have changed had the transport time within the elevator been shorter."

         By these facts and its expert's opinion, NYCHA demonstrated its prima facie entitlement to judgment as a matter of law by showing that the stoppage of its elevator, and resulting delay of the decedent's arrival at the hospital, were not a proximate cause of the decedent's death. In opposition, plaintiff, who did not submit an expert's affirmation, failed to refute the averment of NYCHA's expert that the elevator stoppage did not change the outcome for the decedent or raise a triable issue of fact as to whether ...

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