Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of
counsel), for appellant.
& Record, LLP, Bayside (Sang J. Sim of counsel), for
Manzanet-Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing,
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
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.
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.
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.
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.
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.
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.
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.
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 , lv denied 95
N.Y.2d 769 ). 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 ), "[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 ; see also D'
Avilar v Folks Elec. Inc., 67 A.D.3d 472');">67 A.D.3d 472 [1st Dept
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."
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 ...