Hollman et al v. County of Suffolk et al
Filing
67
ORDER granting 35 Motion for Summary Judgment. IT IS HEREBY ORDERED that, for the reasons in the attached Memorandum and Order, the Ambulance Defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court shall terminate South Country Ambulance, EMT L. Smith, EMT D. Totong, EMT S. Al Qadri and Ambulance Driver M. Sneed as defendants from this civil action. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/15/2011. (Cooney, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 06-CV-3589 (JFB) (ARL)
_____________________
MARY HOLLMAN, Individually and
as the Administrator of the Estate of SAMUEL A. COX,
and the Estate of SAMUEL A. COX, on behalf of decedent JOHN COX,
Plaintiff,
VERSUS
COUNTY OF SUFFOLK,
SUFFOLK COUNTY POLICE DEPARTMENT, Suffolk Homicide Commander Det. Lieutenant
JACK FITZPATRICK, in his individual and official capacity,
POLICE OFFICERS “JOHN DOE” 1 through 10, whose names are known by the Defendants but
as of yet are not known by Plaintiffs, OFFICE OF THE SUFFOLK COUNTY MEDICAL
EXAMINER, CHARLES WETLI, M.D., Medical Examiner, in his individual and official
capacity, JAMES C. WILSON, M.D., Deputy Medical Examiner, in his individual and official
capacity, BROOKHAVEN MEMORIAL HOSPITAL MEDICAL CENTER, SOUTH COUNTRY
AMBULANCE, EMT L. SMITH, in his individual and official Capacity, EMT D. TOTONG,
in his individual and official capacity, EMT S. AL QADRI, in his individual and official
capacity, and AMBULANCE DRIVER M. SNEED, in his individual and official capacity,
Defendants.
___________________
MEMORANDUM AND ORDER
June 15, 2011
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Mary Hollman (hereinafter,
“plaintiff”) brought the instant action on behalf
of decedent John Cox (hereinafter, “Cox” or
“decedent”) regarding the incidents surrounding
Cox’s death on April 22, 2005. Plaintiff seeks
damages against a number of defendants,
including the County of Suffolk, certain
Suffolk County Police Officers, the Office of
the Suffolk County Medical Examiner and
several of its employees, Brookhaven Hospital
Memorial Medical Center, and South Country
Ambulance and certain emergency medical
technicians (“EMTs”) who are members of
the South Country Ambulance company,
under the Equal Protection and Due Process
Clauses of the Fourteenth Amendment, 42
U.S.C. §§ 1981, 1983, 1985 and 1986, and
various New York state law causes of action,
including negligence and wrongful death.
Defendants South Country Ambulance, EMTs
Smith, Totong, Al Qadri and Ambulance Driver
Sneed (collectively, “Ambulance Defendants”)
now move for summary judgment on all claims,
pursuant to Rule 56(c) of the Federal Rules of
Civil Procedure. For the reasons stated below,
the motion is granted in its entirety, and the
Ambulance Defendants are terminated from the
above-captioned case.1
1.) At some point prior to 8 p.m., individuals
present at the residence called the Suffolk
County Police Department, requesting
assistance because Cox was agitated. (Am.
Compl. ¶ 44; Defs.’ 56.1 ¶ 2; Pl.’s 56.1 ¶ 2.)
The police arrived at the residence around
8:00 p.m., and arrested Cox. (Am. Compl. ¶
45; Defs.’ 56.1 ¶ 3; Pl.’s 56.1 ¶ 3.)
The parties dispute the extent to which
Cox struggled with the police officers when
they attempted to arrest him. (Defs.’ 56.1 ¶ 4;
Pl.’s 56.1 ¶ 4.) Plaintiff’s complaint alleges
that the officers ordered the other residents
outside the house, closed the blinds, and
assaulted Cox. (Am. Compl. ¶¶ 47-48.)
Specifically, plaintiff claims that the officers
stomped on Cox’s head and body, kicked him
in the groin, and shocked him with a Taser
gun multiple times, which caused third-degree
burns. (Am. Compl. ¶¶ 49-50.)
I. BACKGROUND
A. Facts
The facts described below are taken from
the parties’ depositions, affidavits, and exhibits,
and the parties’ respective Rule 56.1 statement
of facts (“Defs.’ 56.1” and “Pl.’s 56.1”). Unless
otherwise noted, the facts are undisputed. Upon
consideration of the motions for summary
judgment, the Court shall construe the facts in
the light most favorable to plaintiff, the nonmoving party. See Capobianco v. New York,
422 F.3d 47, 50 (2d Cir. 2001).
Sergeant Kevin Lixfield of the Suffolk
County Policy Department was the senior
officer at the scene during the incident and
made a radio call for an ambulance.2 (Defs.’
56.1 ¶¶ 5-6.) The Ambulance Defendants
arrived on the scene at approximately 8:27
p.m. (Pl.’s Counter-Statement of Material
Facts In Dispute (hereinafter, “Pl.’s Counter
56.1”) ¶ 42.) Sergeant Lixfield was standing
outside the residence when the Ambulance
Defendants arrived, and reported to EMT
Smith that Cox was an emotionally disturbed
On April 22, 2005, Cox, a thirty-nine year
old African American male, was visiting his
girlfriend at a residence in Bellport, New York.
(Am. Comp. ¶ 43; Defs.’ 56.1 ¶ 1; Pl.’s 56.1 ¶
1
Brookhaven Memorial Hospital Medical Center
(“Brookhaven”) was terminated from the abovecaptioned case pursuant to this Court’s
Memorandum and Order, dated January 27, 2011
(the “January 27 Memorandum and Order”), in
which this Court granted in its entirety
Brookhaven’s motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
2
The parties dispute whether the initial purpose
of Sergeant Lixfield’s call for an ambulance was
to transport Cox to a hospital. (Pl.’s 56.1 ¶ 6.) In
particular, plaintiff points to the fact that Lixfield
testified at his deposition that he also called for a
police van to respond to the residence at the same
time. (Id.)
2
person, and violent.3 (Pl.’s Counter 56.1 ¶ 43.)
EMT Smith entered the bedroom of the
residence, where he witnessed four to five
police officers restraining Cox on the bed, while
placing him in handcuffs. (Pl.’s Counter 56.1
¶¶ 46-47.) While EMT Smith was in the
residence, he did not witness Cox striking the
police officers, but did observe the officers
using a Taser on Cox. (Id. ¶¶ 50, 76, 148, 16061.) Upon request, EMTs Smith and Totong
brought a stretcher to the main area of the
house, and the police placed Cox face down on
the stretcher, with his hands and legs cuffed.
(Id. ¶¶ 48-49, 51.) EMTs Smith and Totong
applied straps to secure Cox to the stretcher.
(Id. ¶¶ 51, 61.) During the time that the EMTs
were in the residence, EMT Smith prepared a
rebreather mask to supply oxygen to Cox, but
the officers ordered him not to apply the mask.
(Id. ¶¶ 59, 60.)
back of the ambulance with three police
officers who were restraining Cox. (Defs.’
56.1 ¶ 12; Pl.’s 56.1 ¶ 12.) Specifically,
plaintiff alleges that one police officer was
sitting on Cox’s lower back, another was
sitting on his legs, and another was restraining
his neck by applying pressure on the back of
his neck for the entire journey to the hospital.
(Pl.’s Counter 56.1 ¶ 20.) During the
ambulance ride, the police officers directed
Smith to not provide Cox with medical
treatment. (Defs.’ 56.1 ¶¶ 11, 14; Pl.’s 56.1
¶¶ 11, 14.) Smith attempted to apply the
rebreather mask a second time, but was again
ordered not to by the police officers, because
they advised him that Cox was still
combative. (Pl.’s Counter 56.1 ¶ 64; Pl.’s Ex.
G at 93.)
The ambulance arrived at the hospital at
approximately 8:42 p.m. (Id. ¶ 67.) After
Cox was removed from the ambulance, he
was no longer combative. (Id. ¶ 72.) Cox
was brought into the trauma room at the
hospital, but the police would not allow a
registered nurse to transfer Cox to a hospital
stretcher without hospital restraints because
they claimed Cox to be combative. (Id. ¶¶ 70,
146.) While the hospital staff retrieved
restraints, Smith observed that Cox was not
moving or speaking, and that the police
officer was still holding the back of Cox’s
neck. (Id. ¶ 71.) After the hospital staff
returned with restraints, Cox was uncuffed,
turned over, and it was discovered that he was
in cardiac arrest. (Id. ¶ 73.) The EMTs were
then instructed to leave the room. (Id. ¶ 73.)
At approximately 8:50 p.m., Cox had no
recordable blood pressure, no pulse and a
respiratory rate of zero. (Id. ¶ 74.) Cox was
officially pronounced dead at 9:37 p.m. (Id. ¶
97.)
EMTs Smith and Totong assisted the police
in carrying Cox, on the stretcher, to the
ambulance. (Id. ¶ 61.) Cox was positioned
incorrectly in the ambulance, face down on the
stretcher, with his head facing the rear doors of
the ambulance. (Id. ¶¶ 34, 62.) EMT Smith
advised the police officers at the scene that Cox
should be repositioned so that he was face up,
with his head at other end of the stretcher, but
he was rebuffed by the police officers, who
reported that repositioning Cox would be
unsafe. (Id. ¶¶ 62, 63.)
Cox remained in police custody during the
ambulance ride to Brookhaven Memorial
Hospital Medical Center. (Defs.’ 56.1 ¶ 10;
Pl.’s 56.1 ¶ 10.) Smith and Totong rode in the
3
Plaintiff alleges that Cox had been diagnosed with
schizophrenia and acute bipolar mania on or around
1986, and had been receiving medical treatment for
his mental conditions since at least April 2005.
(Am. Compl. ¶ 38.)
3
EMT Smith did not leave a Prehospital Care
Report at the hospital when Cox was admitted.
(Id. ¶ 79.) While at the hospital, EMT Smith
contacted the chief of his company, who
instructed him not to submit any statements
until the ambulance company’s attorney was
notified. (Id. ¶¶ 66, 79.) That report was
submitted at a later date, and included as the
chief complaint a description that “[a]s per PD,
emotionally disturbed person, violent.” (Id. ¶
43.) The report only indicated injuries to Cox’s
hands and arms. (Id. ¶ 162.) EMT Smith also
completed an Incident Report Form which
indicated that “the police department was
advising me that it was, in my opinion, in my
best interest that I didn’t interact with the
patient.” (Id. ¶ 65.)
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of Civil
Procedure 56(a), a court may only grant a
motion for summary judgment “if the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the burden of
showing that he or she is entitled to summary
judgment. See Huminski v. Corsones, 396
F.3d 53, 69 (2d Cir. 2005). “A party asserting
that a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to
particular parts of materials in the record,
including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or presence
of a genuine dispute, or that an adverse party
cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1).
The court “is not to weigh the evidence but is
instead required to view the evidence in the
light most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments.” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004) (internal quotation marks
omitted); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (summary judgment
is unwarranted “if the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).
B. Procedural History
Plaintiff filed the complaint in the instant
action on July 21, 2006. An amended complaint
was filed on November 10, 2006. On April 29,
2009, the Ambulance Defendants filed the
instant motion for summary judgment. Plaintiff
filed opposition papers to the motion for
summary judgment on July 1, 2009, and the
Ambulance Defendants filed their reply papers
on July 28, 2009. The Court held oral argument
on the instant motion, and other related motions
on August 24, 2009. On November 24, 2009,
plaintiff filed a supplemental declaration in
support of plaintiff’s memorandum of law in
opposition and, on January 15, 2010, the
Ambulance Defendants filed a sur-reply. This
matter is fully submitted.4
4
In particular, at the February 7, 2011 conference,
the Ambulance Defendants orally renewed their
motion for summary judgment and counsel for the
Ambulance Defendants and plaintiff both agreed, as
discussed infra, that although discovery related to
plaintiff’s expert submissions was ongoing, those
submissions did not pertain to the claims against the
Ambulance Defendants. Thus, the parties agreed
that the Ambulance Defendants’ motion for
summary judgment was fully submitted and ready
for a decision by the Court.
4
of plaintiff’s claims as against the Ambulance
Defendants.
Once the moving party has met its burden,
the opposing party “‘must do more than simply
show that there is some metaphysical doubt as
to the material facts. . . . The nonmoving party
must come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d
Cir. 2002) (emphasis in original) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment may
be granted.” Anderson, 477 U.S. at 249-50
(internal citations omitted). Indeed, “the mere
existence of some alleged factual dispute
between the parties” alone “will not defeat an
otherwise properly supported motion for
summary judgment.” Id. at 247-48 (emphasis in
original). Thus, the nonmoving party may not
rest upon mere conclusory allegations or denials
but must set forth “‘concrete particulars’
showing that a trial is needed.” R.G. Grp., Inc.
v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.
1984) (quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “‘merely to assert
a conclusion without supplying supporting
arguments or facts.’” BellSouth Telecomms.,
Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d
Cir. 1996) (quoting Research Automation Corp.,
585 F.2d at 33).
A. Claims Arising Under 42 U.S.C. § 1983
III. DISCUSSION
In order to prevail on a federal civil rights
action under Section 1983, a plaintiff must
demonstrate: (1) the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws; (2) by a person acting
under the color of state law. 42 U.S.C. §
1983.
“Section 1983 itself creates no
substantive rights; it provides only a
procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993). However,
even if a plaintiff has adequately alleged a
constitutional injury, a Section 1983 claim
cannot be successful unless it can be
demonstrated that such injury was caused by
a party acting under the “color of state law,”
and thus the central question is whether the
alleged infringement of federal rights is
“fairly attributable to the state.” Lugar v.
Edmonson Oil Co., 457 U.S. 922, 937 (1982);
Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(“The purpose of § 1983 is to deter state
actors from using the badge of their authority
to deprive individuals of their federally
guaranteed rights and to provide relief to
victims if such deterrence fails.”); Tancredi v.
Metro Life Ins. Co., 316 F.3d 308, 312 (2d
Cir. 2003) (“A plaintiff pressing a claim of
violation of his constitutional rights under §
1983 is thus required to show state action.”).
Plaintiff alleges federal causes of action for
violations of Cox’s civil rights under 42 U.S.C.
§§ 1981, 1983, 1985 and 1986 against the
Ambulance Defendants. In addition, plaintiff
alleges causes of action under New York
common law for negligence and wrongful death.
For the reasons discussed below, the Court finds
that summary judgment should be granted on all
As a baseline matter, private citizens and
entities are not generally subject to Section
1983 liability. See Ciambriello v. County of
Nassau, 292 F.3d 307, 323-34 (2d Cir. 2002);
Reaves v. Dept. of Veterans Affairs, No. 08CV-1624 (RJD), 2009 WL 35074, at *3
(E.D.N.Y. Jan. 6, 2009) (“Purely private
conduct is not actionable under § 1983, ‘no
5
Defendants should be considered to be acting
under the color of state law under the public
function and “symbiotic relationship” tests.5
For the reasons stated below, even crediting
plaintiff’s evidence and drawing all
reasonable inferences in plaintiff’s favor,
there is insufficient evidence from which a
rational jury could find that the Ambulance
Defendants acted under the color of state law.
Thus, her § 1983 claims cannot survive
summary judgment.
matter how discriminatory or wrongful.’”
(quoting Am. Mfrs. Mut. Ins. Co v. Sullivan, 526
U.S. 40, 50 (1999))). However, “the actions of
a nominally private entity are attributable to the
state when: (1) the entity acts pursuant to the
‘coercive power’ of the state or is ‘controlled’
by the state (‘the compulsion test’); (2) when
the state provides ‘significant encouragement’
to the entity, the entity is a ‘willful participant
in joint activity with the [s]tate,’ or the entity’s
functions are ‘entwined’ with state policies (‘the
joint action test’ or ‘close nexus test’); or (3)
when the entity ‘has been delegated a public
function by the [s]tate.’ (‘the public function
test’).” Sybalski v. Indep. Gr. Home Living
Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)
(citing Brentwood Acad. v. Tenn. Secondary
Sch. Ath. Ass’n, 531 U.S. 288, 296 (2001)); see
also Luciano v. City of N.Y., No. 09-CV-0539
(DC), 2009 WL 1953431, at *2 (S.D.N.Y. July
2, 2009) (stating that a private entity may only
be considered a state actor for the purposes of §
1983 if the private entity fulfills one of the
“state compulsion,” “public function” or “close
nexus” tests); accord Faraldo v. Kessler, No.
08-CV-0261 (SJF), 2008 WL 216608, at *4
(E.D.N.Y. Jan. 23, 2008). “It is not enough,
however, for a plaintiff to plead state
involvement in ‘some activity of the institution
alleged to have inflicted injury upon a plaintiff’;
rather, the plaintiff must allege that the state
was involved ‘with the activity that caused the
injury’ giving rise to the action.” Sybalski, 546
F.3d at 258 (citing Schlein v. Miford Hosp., Inc.,
561 F.2d 427, 428 (2d Cir. 1977) (emphasis in
original). A plaintiff “bears the burden of proof
on the state action issue.” Hadges v. Yonkers
Racing Corp., 918 F.2d 1079, 1083 n.3 (2d Cir.
1990), cert. denied, 499 U.S. 960 (1991).
1. Public Function Test
The public function exception to the rule
that private conduct is not ordinarily
5
Plaintiff actually asserts that the Ambulance
Defendants are state actors under the “close
nexus” test, but in support of such proposition
focuses on Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961) and Janusaitis v.
Middlebury Volunteer Fire Department, 607 F.2d
17 (2d Cir. 1979), which both addressed the more
specific “symbiotic relationship” test instead.
(Pl.’s Mem. of Law in Opp. to Ambulance Defs.’
Mot. for Summ. J. (hereinafter, “Pl.’s Mem. in
Opp.”) at 4-5.) It is clear from the case law that
the “symbiotic relationship” test is one mechanism
by which a plaintiff can prove the requisite “joint
action” or “close nexus” for state action under
Section 1983. See, e.g., Standardbred Owners
Ass’n v. Roosevelt Raceway Assocs., L.P., 985
F.2d 102, 105 (2d Cir. 1993) (“There must be
either a symbiotic relationship between the state
and the defendant, such as, for example, a direct
financial stake by the state in a business, or a close
nexus between the state and alleged wrongful
conduct.”) (emphasis added). Thus, the Court
construes plaintiff’s argument as one made under
the “symbiotic relationship” test. In any event,
even if plaintiff also is asserting state action
separately under the “close nexus”/ “joint action”
test, or the “compulsion” test, the Section 1983
claims still cannot survive summary judgment, for
the reasons discussed infra.
In the instant case, it is undisputed that
South Country Ambulance Company and its
volunteer EMTs are private parties. Plaintiff
argues, however, that the Ambulance
6
of Pennsylvania to provide ambulance
services).6
actionable under § 1983 is narrow. As the
Supreme Court has instructed, “the relevant
question is not simply whether a private group
is serving a ‘public function’ . . . [T]he question
is whether the function performed has been
‘traditionally the exclusive prerogative of the
State.’” Rendell-Baker v. Kohn, 457 U.S. 830,
842 (1983) (quoting Jackson v. Metro. Edison
Co., 419 U.S. 345, 353 (1974)) (emphasis
added); accord Sybalski, 546 F.3d at 259;
Horvath v. Westport Library Ass’n, 362 F.3d
147, 152 (2d Cir. 2004) (finding no state action
under public function test where function at
issue not “traditionally associated with
sovereignty”) (internal citation and quotation
marks omitted).
Similarly, plaintiff’s argument that the
Ambulance Defendants fall under the public
function exception because they receive some
government funding support through a special
ambulance tax district is without merit; it is
well-settled that “receipt of state funds [alone]
is . . . insufficient to transform . . . private
actions into state actions.” Alcena v. Raine,
692 F. Supp. 261, 267 (S.D.N.Y. 1998); see
Rendell-Baker v. Kohn, 457 U.S. at 840-43
(finding private school, which received ninety
percent of funds from government and was
extensively regulated, was not a state actor
within meaning of Section 1983); see also
Blum, 457 U.S. at 1011-12 (finding no state
action notwithstanding fact that state paid
medical expenses of more than ninety percent
of the patients and subsidized the operating
and capital costs of the nursing homes); Arons
v. State of N.Y., No. 04-CV-0004 (DLC), 2004
WL 1124669, at *6 (S.D.N.Y. May 20, 2004)
(“The receipt of public funds by a private
First, that ambulatory services may be
subject to extensive regulation by the New York
State Health Department, and subject to other
testing and certification requirements, does not
establish such services as traditional state
services for the purposes of the public function
test. Although New York may regulate
ambulatory services, the plaintiff has not shown
that these regulations require the state or any
local municipality to provide ambulance
services. See Blum v. Yaretsky, 457 U.S. 991,
1011 (1982) (finding nursing home services not
public function, despite extensive New York
state regulation, where no regulatory provisions
required State to provide services itself); see
also McKinney v. West End Voluntary
Ambulance Ass’n, 821 F. Supp. 1013, 1018
(E.D. Pa. 1992) (volunteer ambulance services
not public function by virtue of Pennsylvania
Emergency Medical Services Act, where the
regulations promulgated under that statute did
not impose an obligation on the Commonwealth
6
Along a similar vein, plaintiff’s citation to the
United States Supreme Court decision in Garcia v.
San Antonio Metropolitan Transit Authority, 469
U.S. 528 (1985) does not support the proposition
that ambulatory services are a function that are
traditionally left to the exclusive prerogative of the
state for the purposes of the “public function” test.
That case merely stands for the fact that the
regulation of ambulatory services by
governmental entities is traditional, for the
purposes of Tenth Amendment state government
immunity from federal regulation under National
League of Cities v. Usery, 426 U.S. 833 (1976)
and its progeny. Whether or not the regulation of
ambulatory services is traditionally performed by
state government is not the central question;
rather, the issue is whether the services themselves
have traditionally been provided exclusively by
the state.
7
alleged constitutional harm in the instant case.
See, e,g., Doe v. Harrison, 254 F. Supp. 2d
338, 344-45 (S.D.N.Y. 2003); see also
McKinney, 821 F. Supp. at 1020 (“[R]eceiving
emergency calls through a governmentoperated system is no more persuasive than
the fact of regulation or funding in
demonstrating that the government was
responsible for [a private party’s] conduct.”).
entity, no matter how extensive, is insufficient
in and of itself to establish state action.”);
Archer v. Economic Opp. Comm’n of Nassau
Co., Inc., 30 F. Supp. 2d 600, 605 (E.D.N.Y.
1998) (“The United States Supreme Court has
repeatedly held that a private entity’s
dependence on government funding does not
make the organization a state actor.”).
Plaintiff also argues that the public function
exception applies because the Ambulance
Defendants perform particular activities which
plaintiff claims to be “public,” including
patrolling county parks and federal parks within
the district, and providing medical aid in such
districts. As a threshold matter, the Supreme
Court has rejected the argument that provision
of services to the public converts an action into
a public function. See Jackson, 419 U.S. at
352-54 (rejecting broad principle under public
function test that all businesses affected with the
public interest are state actors); McKinney, 821
F. Supp. at 1019 (“[T]he relevant inquiry under
this standard is not just whether the private
entity is serving a public function, but whether
such a function is “‘traditionally the exclusive
prerogative of the State.’”) (quoting RendellBaker v. Kohn, 457 U.S. at 842) (emphasis in
original). Moreover, even assuming arguendo
that providing ambulatory services on county or
federal land is traditionally the exclusive
prerogative of the state, these activities are
wholly unrelated to the alleged injury at issue in
the instant case–plaintiff’s injuries did not arise
from the Ambulance Defendants’ patrols of
such public land–and therefore are inapplicable
to the state action analysis. Cf. Schlein, 561
F.2d at 428 (plaintiff must alleged that state was
involved “with the activity that caused the
injury” giving rise to the action). Similarly, that
the Ambulance Defendants receive calls
through a county-run emergency 911 dispatch
system does not convert them into state actors
where the dispatch is itself unrelated to the
Finally, the Court notes that whereas
plaintiff has failed to point to a single instance
in which a court has determined ambulatory
services to fall within the ambit public
function exception, a number of courts have
held otherwise.
See, e.g., Groman v.
Township of Manalapan, 47 F.3d 628, 641 (3d
Cir. 1995) (holding that a volunteer first aid
squad was not a state actor under public
function test); Gallegos v. Slidell Police
Dept., No. 07-CV-6636, 2008 WL 1794170
(E.D. La. Apr. 18, 2008) (finding medical
services of ambulance driver not exclusive
prerogative of state for public function test);
McKinney, 821 F. Supp. at 1018-20 (holding
volunteer ambulance company not state actor
under public function test); Krieger v.
Bethesda-Chevy Chase Rescue Squad, 599 F.
Supp. 770, 773 (D.C. Md. 1984) (rescue or
ambulance service not a public function),
aff’d without opinion, 792 F.2d 139 (4th Cir.
1986); Eggleston v. Prince Edward Volunteer
Rescue Squad, Inc., 569 F. Supp. 1344, 135051 (E.D. Va. 1983) (finding emergency
transportation service more akin to a private
function, and not a function that is
traditionally the exclusive prerogative of the
government), aff’d without opinion, 742 F.2d
1448) (4th Cir. 1984).
Accordingly, the undisputed facts in this
case demonstrate as a matter of law that the
Ambulance Defendants cannot be considered
to have been operating under the “color of
8
interdependent such that the symbiotic test is
applicable. First and foremost, there is no
indication that the state had a direct
proprietary interest in the operations of the
South Country Ambulance company, a
requirement which has been deemed critical
by subsequent Supreme Court and Second
Circuit precedent. See Rendell-Baker, 457
U.S. at 842-43 (declining from finding
symbiotic relationship, distinguishing Burton
on the basis that the private party in that case
was located on public property and rent
payments directly supported the public
entity); Hadges, 918 F.2d at 1082 (“In
contrast to Burton, the State in the instant case
does not have a proprietary interest in [private
party defendant].”); accord Calderon v.
Burton, 457 F. Supp. 2d 480, 488 (S.D.N.Y.
2006); 1 Martin A. Schwartz, Section 1983
Litigation: Claims and Defenses § 5.13[A] at
5-90-5-91, 5-94 (4th ed. 2003) (“The lower
federal courts generally follow the present
Supreme Court’s reading of Burton that the
most significant fact that led to the finding of
state action was the public authority’s
profiting from the restaurant’s
discrimination.”). In the instant case, unlike
Janusaitis, there is no indication that the state
owned the land or all the equipment used by
the South Country Ambulance company, or
that it was directly managed or operated by
government officials. Forbes v. City of N.Y.,
No. 05-CV-7331 (NRB), 2008 WL 3539936,
at *7 (S.D.N.Y. Aug. 12, 2008) (“[T]he
weight of authority suggests that Burton itself
is highly circumscribed authority . . . [w]hen
courts do apply the symbiosis factor, they
often examine whether the government has
control over the private actor’s ‘day-to-day’
operations and whether the government shares
in any profits the private entity has generated
from the challenged conduct.”) (internal
citations and quotation marks omitted)
(emphasis in original); McKinney, 821 F.
state law” pursuant to the public function test,
and, thus, any claim under that test cannot
survive summary judgment.
2. Symbiotic Relationship Test
The Court also concludes that no rational
jury could conclude that the Ambulance
Defendants are state actors for § 1983 purposes
under the “symbiotic relationship” test
established by the United States Supreme Court
in Burton v. Wilmington Parking Authority, 365
U.S. 715, 81 S.Ct. 856 (1961).
According to Burton, actions of a private
party can be considered state action if the state
has “so far insinuated itself into a position of
interdependence with [the acting party] that it
must be recognized as a joint participant in the
challenged activity . . .” 365 U.S. at 725. The
Supreme Court applied this test in Burton to
find that a private restaurant located within a
public parking garage, which discriminated
based on race, was involved in state action
because mutual benefits were conferred, and the
restaurant operated physically and financially
“as an integral part of a public building devoted
to a public parking service.” Id. at 724. In the
other case cited by plaintiff, Janusaitis v.
Middlebury Volunteer Fire Department, 607
F.2d 17, 23 (2d Cir. 1979), the Second Circuit
applied the Burton symbiotic relationship test to
find state action on the part of a volunteer fire
department, where there the state was
extensively involved and intertwined with the
fire company, noting that the fire company
occupied land and buildings owned by the town,
used equipment owned by the town, and had its
operations overseen by the locality (which
retained final approval regarding the selection
of the company’s chief in command).
In the instant case, there is no evidence that
the Ambulance Defendants and the state were so
9
contention that the Ambulance Defendants
were acting under the “color of state law” for
§ 1983 purposes. However, because the
Constitutional harm in the instant case
allegedly caused by the defendants involved a
failure to provide medical care, and that
alleged harm was a result of the officers’
direct orders that the Ambulance Defendants
not provide medical care to decedent, a
discussion of the joint action and compulsion
tests is warranted. For the reasons stated
below, the Court finds that, even if plaintiff
had adequately raised these tests, any
arguments for the application of the joint
action doctrine or compulsion tests would be
without merit. Specifically, even accepting
plaintiff’s evidence as true, no rational jury
could conclude that the Ambulance
Defendants willingly participated in denying
decedent medical care where it is undisputed
that the EMTs repeatedly requested to render
medical care and were denied by the police
officers who had the decedent in custody.
Supp. at 1019 (rejecting application of Burton
symbiotic relationship doctrine to volunteer
ambulance company that owned building
equipment, and did not have its membership
appointed by government officials). Plaintiff
can only point to the fact that the Ambulance
Defendants are regulated by the State and
receive funding support from an ambulance tax
district, but such facts alone are insufficient to
satisfy the symbiotic relationship test as a
matter of law, and (as discussed supra) are
insufficient to characterize a private party’s
activities as state action for the purposes of §
1983. See, e.g., Blum v. Yatresky, 457 U.S. 991
(1982) (rejecting argument that state
subsidization of operating and capital costs of
nursing homes, payment of the medical
expenses of more than 90% of the patients, and
the licensing of such facilities created symbiotic
relationship between the State and homes);
Archer v. Economic Opportunity Com’n of
Nassau Co., Inc., 30 F. Supp. 2d 600, 605
(E.D.N.Y. 1988) (rejecting application of
symbiotic relationship test where private entity
received 95 percent of funding from state and
was subject to regulation; “[t]he United States
Supreme Court has repeatedly held that a
private entity’s dependence on government
funding does not make the organization a state
actor”).
Under the “joint action” doctrine, a private
actor can be found “to act under color of state
law for § 1983 purposes if . . . [the private
party] is a willful participant in joint action
with the State or its agents”. Dennis v.
Sparks, 449 U.S. 24, 27 (1980). “The
touchstone of joint action is often a ‘plan,
prearrangement, conspiracy, custom, or
policy’ shared by the private actor and the
police.” Forbes, 2008 WL 3539936, at *5
(citing Ginsberg v. Healey Car & Truck
Leasing, Inc., 189 F.3d 268, 272 (2d Cir.
1999)). To establish joint action, “a plaintiff
must show that the private citizen and the
state official shared a common unlawful
goal.” Bang v. Utopia Restaurant, 923 F.
Supp. 46, 49 (S.D.N.Y. 1996); see also
Burrell v. City of Mattoon, 378 F.3d 642, 650
(7th Cir. 2004) (under joint action
requirement, plaintiff must show that “both
Accordingly, even accepting plaintiff’s
evidence as true and drawing all reasonable
inferences in her favor, no rational jury could
find that the Ambulance Defendants should be
considered to have been operating under the
“color of state law” pursuant to the symbiotic
relationship test and, thus, any claim under that
test cannot survive summary judgment.
3. Joint Action/Compulsion Test
The Court notes that the plaintiff did not
raise the compulsion test in support of its
10
violation was compelled by the state – insofar
as the police officers ordered the Ambulance
Defendants not to provide medical treatment
– the Court finds that the Ambulance
Defendants cannot be held liable for such
compelled acts resulting from a police order,
absent evidence of willfulness. Although the
Second Circuit has not directly confronted this
issue, the Court agrees with the approach
taken by the Third and Ninth Circuits, which
have found that a private party cannot be held
liable based on alleged unconstitutional
actions that are the result of government
compulsion alone. See Harvey, 421 F.3d at
196 (finding private party not liable for
alleged unconstitutional act which was
performed pursuant to a police order; “[the
private party] would therefore not be liable
here because she had not wilfully participated
in the state action, as compulsion by the state
negates the presence of wilfulness”); see also
Sutton v. Providence St. Joseph Medical
Center, 192 F.3d 826, 838, 843 (9th Cir.
1999) (holding that “a plaintiff must show
‘something more’ than state compulsion,
typically willful participation, in order to hold
a private defendant liable as a government
actor”). This is not to say that no party may
be held accountable for the alleged violation
of constitutional rights by a private party; as
noted by the Ninth Circuit in Sutton, the
Supreme Court has plainly held that the
government may be held liable, where it
compels a private party to violate
constitutional rights. See id. (citing Peterson
v. City of Greenville, 373 U.S. 244, 247-48
(1963) (holding that city could not escape
liability for racial discrimination committed
by private entity, where discrimination was
compelled by city ordinance requiring
segregation); Harvey, 421 F.3d at 196 n.13
(“[I]t seems entirely proper to find that the
state actor engaged in state action, including
whatever actions the private party was
public and private actors share a common,
unconstitutional goal”).
Here, any contention for the application of
the joint action doctrine would be without merit,
because it is uncontested that the Ambulance
Defendants did not willingly participate in joint
action with the defendant police officers in
denying decedent medical treatment while in
custody. Specifically, the undisputed record
reflects that EMT Smith attempted several times
to render medical care, but was repeatedly
ordered not to provide such assistance by the
police officers who had Cox in custody. The
Court concluded previously, with respect to
defendant Brookhaven, that it cannot be said
that the Ambulance Defendants shared a
common, unconstitutional goal where they
would have provided care but for explicit police
orders to stand down. See January 27 Mem. &
Order, at *8; See, e.g., Harvey v. Plains Twp.
Police Dept., 421 F.3d 185, 195-196 (3d Cir.
2005) (finding that private landlord defendant
was not acting under “color of state law” based
on joint action because private party was not
willful participant; “a private citizen acting at
the orders of a police officer is not generally
acting in a willful manner, especially when that
citizen has no self-interest in taking the
action”). Where as here, the decedent was in
police custody, and it is undisputed that the
police officers ordered the Ambulance
Defendants to stand down from attempting to
provide medical treatment, the Ambulance
Defendants cannot be said to be willful
participants.
Thus, any claim that the
Ambulance Defendants should be considered to
have been operating under the “color of state
law” pursuant to the “joint action” doctrine test
cannot survive summary judgment.
Moreover, although it can be fairly said
from the above that the record supports the
proposition that the alleged Constitutional
11
compelled to take.”). In circumstances in which
the government pressures another party to
commit an unlawful act, “the state is undeniably
the party who is ‘responsible for that act.’”
Sutton, 192 F.3d at 838. However, it is
inequitable to hold the private party liable,
where, as here, the undisputed record supports
the proposition that the private party would not
have committed the alleged unconstitutional act
but for the direct police order. As discussed by
the Ninth Circuit in Sutton:
unconstitutional actions unwillingly
committed by private individual based upon
police order; imputing action committed by
private party to officers for liability purposes).
The police officers are defendants to the
instant action, and are the appropriate parties
which may be potentially held liable for the
alleged constitutional deprivation of medical
treatment to decedent while he was in their
custody, if proven at trial.
*
[W]e would expect that the private
defendant is not responsible for the
government’s compulsion: “The logical
conclusion of [Peterson v. City of
Greenville, 373 U.S. 244 (1963)] is that
only the state actor, and not the private
party, should be held liable for the
constitutional violation that resulted from
the state compulsion. When the state
compels a private party to discriminate
against members of a racial minority, it is
the state action, not the private conduct,
which is unconstitutional. . . [A] private
party in such a case is ‘left with no choice
of his own’ and consequently should not
be deemed liable.”
*
*
In sum, even crediting plaintiff’s evidence
and drawing all reasonable inferences in her
favor, there is insufficient evidence from
which a rational jury could find the South
Country Ambulance Company, and its
volunteer EMTs, were acting under “color of
state law” for the purposes of 42 U.S.C. §
1983. Accordingly, summary judgment is
granted with respect to all claims alleged
against the Ambulance Defendants under §
1983.7
7
The Court rejects the Ambulance Defendants’
argument that the claims arising under 42 U.S.C.
§§ 1981, 1985, and 1986 must also be dismissed
by virtue of the fact that they are private parties
not operating under “color of state law”; it is wellsettled that the state action requirement is not
applicable to claims brought under those civil
rights statutes. Patterson v. Balsamico, 440 F.3d
104, 113 (2d Cir. 2006) (holding that defendant
was not acting under color of state law for
purposes of § 1983 does not affect liability under
§ 1981); Dunk v. Brower, No. 07-CV-7087 (RPP),
2009 WL 650351, at *5 (S.D.N.Y. Mar. 12, 2009)
(“Section 1981 regulates private conduct as well
as government action.”) (citing Runyon v.
McCrary, 427 U.S. 160, 170 (1976)); FriersonHarris v. Hough, No. 05-CV-3077 (DLC), 2006
WL 298658, at *5 (S.D.N.Y. Feb. 7, 2006)
(“Unlike Section 1983, Section 1985 creates a
cause of action against private actors as well as
Id. (quoting Barbara Rook Snyder, Private
Motivation, State Action, and the Allocation of
Responsibility for Fourteenth Amendment
Violations, 75 CORNELL L. REV. 1053, 1067,
1069 (1990) (footnote omitted)).
Accordingly, because the alleged
constitutional violation in the instant case was
compelled by the orders of the police officers,
and it cannot be fairly said that plaintiff
willingly participated in the alleged deprivation,
the alleged unlawful acts are fairly imputed to
the officers and not the Ambulance Defendants.
See Harvey, 421 F.3d at 196 n.13 (holding
private party not liable for alleged
12
failure to adequately allege discriminatory
intent); Washington v. City of New York, No.
05-CV-8884 (LAP), 2009 WL 1685947, at *7
(S.D.N.Y. June 5, 2009) (granting summary
judgment dismissing § 1981 claim where
plaintiff had no evidence of discriminatory
animus other than speculation and conclusory
allegations); accord Nasca v. Town of
Brookhaven, No. 05-CV-0122 (JFB), 2008
WL 4426906, at *15 (E.D.N.Y. Sept. 25,
2008); Carson v. Lewis, 35 F. Supp. 2d 250,
269 (E.D.N.Y. 1999) (“[N]aked assertion[s]
by plaintiff[s] that race was a motivating
factor without a fact-specific allegation of a
causal link between defendant's conduct and
the plaintiff’s race [are] too conclusory. . .”).
Because a reasonable jury could not find that
the Ambulance Defendants intended to
discriminate based on race merely based on
the EMTs’ awareness that Cox was AfricanAmerican, summary judgment for the
Ambulance Defendants on the Section 1981
claim is appropriate.
B. Plaintiff’s Claims Arising Under 42
U.S.C. §§ 1981, 1985, and 1986
Plaintiff also alleges that defendants
discriminated against Cox in violation of 42
U.S.C. §§ 1981, 1985, and 1986. As set forth
below, summary judgment is warranted because
plaintiff has provided no evidence of
discriminatory intent on the part of the
Ambulance Defendants, beyond conclusory
allegations, that would allow any of these
claims to survive summary judgment.
“To establish a claim under § 1981, a
plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member
of a racial minority; (2) an intent to discriminate
on the basis of race by the defendant; and (3)
the discrimination concerned one or more of the
activities enumerated in the statute (i.e., make
and enforce contracts, sue and be sued, give
evidence, etc.).” Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.
1993); Albert v. Carovano, 851 F.2d 561, 57172 (2d Cir. 1998) (“Essential to an action under
Section 1981 are allegations that the defendants’
actions were purposefully discriminatory, and
racially motivated.”). Plaintiff’s claim fails as
a matter of law because she has not produced
any evidence indicating that the Ambulance
Defendants had the intent to discriminate based
upon race, other than noting that the Ambulance
Defendants were aware that Cox was an
African-American and a conclusory allegation
that their acts were discriminatory. See, e.g.,
Brown v. City of Oneonta, N.Y., 221 F.3d 329,
339 (2d Cir. 2000) (dismissing § 1981 claim for
Section 1985(3) prohibits two or more
persons from conspiring for the purpose of
depriving any person of the equal protection
of the laws, or of equal privileges and
immunities under the laws.8 In order to
establish a claim under § 1985(3), plaintiff
must establish four elements: “(1) a
conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or
class of persons of equal protection of the
laws, or of equal privileges and immunities
under the laws; [and] (3) an act in furtherance
of the conspiracy; (4) whereby a person is
either injured in his person or property or
those acting under color of state law.”); Puglisi v.
Underhill Park Taxpayer Assoc., 947 F. Supp. 673,
689 (S.D.N.Y. 1996) (noting that § 1985 does not
include a state action requirement). However, as
noted below, those claims cannot survive summary
judgment on other grounds.
8
Although plaintiff has failed to specify which
subsection of 42 U.S.C. § 1985 he brings his claim
under, it is clear from the facts that only § 1985(3)
would be potentially applicable to the present
case.
13
CV-0249 (LLS), 1997 WL 129394, at *17
(S.D.N.Y. Mar. 21, 1997); Augustine v. Reid,
882 F.Supp. 50, 54 (E.D.N.Y.1995).
deprived of any right of a citizen of the United
States.” Mian, 7 F.3d at 1087. The conspiracy
must be motivated “by some racial or perhaps
otherwise class-based, invidious discriminatory
animus behind the conspirators’ action.” Id.
(quoting United Bhd. of Carpenters, Local 610
v. Scott, 463 U.S. 825, 829, 103 S.Ct. 3352, 77
L.Ed.2d 1049 (1983)). As with the § 1981
claim, plaintiff only offers conclusory
allegations that the actions involved
discriminatory animus, merely asserting that the
Ambulance Defendants knew that Cox was both
African-American and disabled. Because there
is no evidence of racial or other class-based
animus on the record, the Ambulance
Defendants are entitled to summary judgment
on plaintiff’s § 1985 claim. See Graham v.
Henderson, 89 F.3d 75, 82 (2d Cir. 1996)
(holding that district court properly granted
summary judgment dismissing § 1985 claim
where plaintiff only offered conclusory
allegations of racial discrimination); Nasca,
2008 WL 4426906, at *15 (granting summary
judgment, dismissing § 1985 claim based on
lack of evidence on record of any racial or
class-based animus); accord Datri v. The
Incorporated Village of Bellport, No. 04-CV3497 (DRH), 2006 WL 2385429, at *7
(E.D.N.Y. Aug. 17, 2006), aff’d, 308 F. App’x.
4665 (2d Cir. 2008).
Accordingly, summary judgment for the
Ambulance Defendants is warranted on
plaintiff’s claims arising under 42 U.S.C. §§
1981, 1985, and 1986.
C. New York Negligence and Wrongful
Death Claims9
Plaintiff alleges claims for negligence and
wrongful death under New York state law.
For the reasons discussed below, the Court
concludes that summary judgment is
warranted, dismissing all of plaintiff’s state
law claims against the Ambulance
Defendants. Specifically, as a threshold
matter, the Ambulance Defendants are entitled
to summary judgment because the plaintiff
failed to plead gross negligence as required
under Public Health Law § 3013 and never
sought leave to amend the complaint.
Furthermore, even if the plaintiff had properly
pled gross negligence in the amended
9
Although the Court has dismissed all the federal
claims against the Ambulance Defendants, the
Court continues to possess supplemental
jurisdiction, pursuant to 28 U.S.C. § 1367(a), over
the claims alleged under New York state law
against the remaining defendants because federal
claims remain against them (including claims
under § 1983 against the county and police officer
defendants), and those claims “form part of the
same case or controversy,” as the state law claims
against the Ambulance Defendants. Ciambriello
v. Cnty. of Nassau, 292 F.3d 307, 325 (2d Cir.
2002) (vacating dismissal of state law claims
against defendant where § 1983 claim remained
against other defendants) (citing 28 U.S.C. §
1367(a) (“[S]upplemental jurisdiction shall
include claims that involve the joinder or
intervention of additional parties.”)).
Finally, the Ambulance Defendants are also
entitled to summary judgment on plaintiff’s §
1986 claim because it is well-settled that “a §
1986 claim must be predicated upon a valid §
1985 claim.” Mian, 7 F.3d at 1088. Because
the Court has found that plaintiff’s § 1985 claim
against the Ambulance Defendants must be
dismissed, the § 1986 claim must be dismissed
as well. See Nasca, 2008 WL 4426906, at *15
(dismissing § 1986 claim where no valid § 1985
claim existed); accord Lehman v. Kornblau, 134
F.Supp.2d. 281, 289 (E.D.N.Y. 2001);
Altschuler v. Univ. of Pa. Law School, No. 9514
and (4) appointment of a
representative of the decedent).
complaint, plaintiff’s claims would still fail as a
matter of law, because the unsworn expert
report submitted by plaintiff is inadmissible on
summary judgment and, thus, plaintiff has failed
to adduce any evidence regarding the applicable
standard of care owed by the Ambulance
Defendants. Finally, even assuming that the
proffered unsworn report was admissible, the
Court concludes that the expert testimony would
be insufficient to allow this claim to survive
summary judgment because it fails to offer the
appropriate standard of care where police
officers direct the EMTs not to provide medical
treatment. Moreover, even if plaintiff’s expert
had established the relevant standard of care,
plaintiff has failed to offer sufficient evidence
from which a rational jury could conclude that
the Ambulance Defendants’ conduct constituted
a gross deviation from such standard.
personal
The parties do not dispute that in order for
the Ambulance Defendants to be liable under
either of plaintiff’s New York law claims, the
plaintiff must demonstrate gross negligence,
rather than plain vanilla negligence. Under
New York Public Health Law § 3013(1), a
volunteer ambulance company and its
members can only be held liable for their acts
or omissions causing injury or death arising
from gross negligence. Kowal v. Deer Park
Fire Dist., 13 A.D.3d 489, 491, 787 N.Y.S.2d
352 (N.Y. App. Div. 2004) (“[D]efendants, in
view of their status as a voluntary ambulance
service, would not be liable unless it is
established that the plaintiff’s decedent’s
injury and death were caused by their gross
negligence”) (citing N.Y. Public Health Law
§ 3013(1)); accord Rider v. Gaslight Tavern
Corp, 125 A.D.2d 144, 147, 512 N.Y.S.2d
553 (N.Y. App. Div. 1987). Accordingly,
since the South Country Ambulance company
and its EMTs are volunteers, plaintiff is
required to demonstrate gross negligence,
which “evinces a reckless disregard for the
rights of others or ‘smacks’ of intentional
wrongdoing.” Colnaghi, USA v. Jeweler’s
Protection Services, 81 N.Y.2d 821, 823-24
(N.Y. 1993). “[G]ross negligence has been
termed failure to exercise even slight care.”
Food Pageant, Inc. v. Consolidated Edison
Co., Inc., 54 N.Y.2d 167, 172, 445 N.Y.S.2d
60 (N.Y. 1981).
In New York, in an action for negligence, a
plaintiff must prove three elements: “‘(1) the
existence of a duty on defendant’s part to
plaintiff; (2) a breach of this duty; and (3) injury
to the plaintiff as a result thereof.’” Alfaro v.
Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d
Cir. 2000) (quoting Akins v. Glens Falls City
Sch. Distr., 53 N.Y.2d 325, 333, 441 N.Y.S.2d
644, 424 N.E.2d 531 (N.Y. 1981)). The
negligence determination is also determinative
of the plaintiff’s wrongful death claim, because
“[t]o succeed on a cause of action to recover
damages for wrongful death, the decedent’s
personal representative must establish, inter
alia, that the defendant’s wrongful act, neglect,
or default caused the decedent’s death.” Eberts
v. Makarczuk, 52 A.D.3d 772, 772-73, 861
N.Y.S.2d 731 (N.Y. App. Div. 2008); see also
Chong v. N.Y. City Tr. Auth., 83 A.D.2d 546,
547, 441 N.Y.S.2d 24 (N.Y. 1981) (defining
elements of wrongful death claim as: (1) death
of a human being; (2) negligence of a defendant
causing death; (3) survival of distributees
suffering pecuniary loss because of the death;
As a threshold matter, the Ambulance
Defendants are entitled to summary judgment
because the Amended Complaint does not
include any allegations of gross negligence on
the part of the Ambulance Defendants, in
either the negligence or wrongful death
claims. See, e.g., O’Leary v. Greenport Fire
Dept., 276 A.D.2d 539, 540-41, 714 N.Y.S.2d
15
In the instant case, plaintiff has submitted
the unsworn expert report of Dr. John L.
Coulehan, dated November 19, 2009. (Pl.’s
Supp. Decl., Ex. B.)10 The Ambulance
Defendants argue the Dr. Coulehan’s unsworn
opinion is inadmissible as expert testimony
and, in any event, is insufficient to raise an
issue of fact on this claim that survives
summary judgment. For the reasons set forth
below, the Court agrees.
451 (N.Y. App. Div. 2000) (granting summary
judgment to defendant volunteer EMTs where
N.Y. Public Health Law § 3013(1) required a
showing of gross negligence and “plaintiffs
failed to plead gross negligence, and never
sought leave to amend the complaint”).
However, for the reasons discussed below, even
if the plaintiff had properly pled gross
negligence in the amended complaint, her
claims would still fail as a matter of law
because she has failed to produce sufficient
evidence regarding the applicable standard of
care owed by the Ambulance Defendants, or
that the Ambulance Defendants were grossly
negligent, to survive summary judgment.
As an initial matter, courts in the Second
Circuit have consistently held that “unsworn
10
At oral argument on August 24, 2009, plaintiff
requested an opportunity to submit expert
testimony regarding the standard of care provided
by the defendants—namely, Dr. Lone Thanning
would provide expert testimony that the care
provided by the Ambulance Defendants and
defendant Brookhaven was insufficient. Although
the Court granted plaintiff’s request, the Court
agrees with the parties that the only proffered
expert testimony on behalf of the plaintiff is the
unsworn expert report by Dr. John L. Coulehan.
First, on November 24, 2009, plaintiff filed a
supplemental declaration in support of plaintiff’s
memorandum of law in opposition to the
Ambulance Defendants’ motion for summary
judgment, which included the declaration of Dr.
Thanning and an unsworn expert report by Dr.
John L. Coulehan. Second, at the conference held
on November 10, 2010, plaintiff’s counsel
informed the Court and the parties that he intended
to replace Dr. Thanning with another expert, Dr.
William L. Manion. Finally, as noted supra, at the
conference held on February 7, 2011, the
Ambulance Defendants orally renewed their
motion for summary judgment and counsel for the
Ambulance Defendants and plaintiff both agreed
that Dr. Manion’s expert testimony is not related
to the Ambulance Defendants. Therefore, the
Court concludes, for the reasons stated above, that
the only proffered expert testimony provided by
plaintiff, was provided through the unsworn report
by Dr. John L. Coulehan.
As stated above, in order to prevail on her
state law causes of action, plaintiff needs to
demonstrate the relevant standard of care owed
by the Ambulance Defendants to decedent and
a gross deviation from such standard. Under
New York law, in cases involving injuries
arising from medical acts or omissions, it is
generally incumbent on the plaintiff to present
expert testimony on the relevant standard of
care. Cregan v. Sachs, 879 N.Y.S.2d 440, 446
(N.Y. App. Div. 2009) (“‘To establish what the
existing standard is or that there has been a
departure from it, because laymen ordinarily are
not deemed possessed of a sufficient
knowledge, training or experience to have
attained the competence to testify on this
subject, a plaintiff nearly always will be
required to produce expert testimony.’”)
(quoting Topel v. Long Is. Jewish Med. Ctr., 55
N.Y.2d 682, 689 (N.Y. 1981)); see, e.g., Mann
v. Western Area Volunteer Emergency Srvs.,
Inc., 816 N.Y.S.2d 697 (N.Y. Sup. Ct. 2006)
(denying summary judgment where plaintiff
submitted expert affidavits creating a question
of fact whether volunteer ambulance company
was grossly negligent for responding with an
ambulance not equipped with a heart
defibrilator).
16
produce admissible expert testimony to
demonstrate the relevant standard of care
owed by the Ambulance Defendants to
decedent and a gross deviation from such
standard.
expert reports do not satisfy the admissibility
requirements of Fed.R.Civ.P. 56(e), and cannot
be used to defeat a summary judgment motion
without additional affidavit support.” Berk v.
St. Vincent's Hosp. and Med. Ctr., 380 F. Supp.
2d 334, 352 (S.D.N.Y. 2005)); see also Gotlin
v. Lederman, 616 F.Supp.2d 376, 389 (E.D.N.Y.
2009); accord Brazier v. Hasbro, Inc., No. 99
Civ. 11258, 2004 WL 1497607, at *2 (S.D.N.Y.
July 6, 2004) (“The submission of unsworn
letters is an ‘inappropriate response’ to a
summary judgment motion, and factual
assertions made in such letters are ‘properly
disregarded by the court.’” (quoting United
States v. All Right, Title & Interest in Real
Property & Appurtenances, 77 F.3d 648, 65758 (2d Cir. 1996))). However, an exception to
the rule arises when the defendants have
submitted a plaintiff’s unsworn expert report in
support of their motion for summary judgment
and relied upon it in their moving papers,
thereby waiving any objections to the
admissibility of such report. See Capobianco v.
City of New York, 422 F.3d 47, 55 (2d Cir.
2005) (emphasis added); see also Glowczenski
v. Taser Intern. Inc., No. CV04-4052
(WDW), 2010 WL 1957289, *3 (E.D.N.Y. May
13, 2010). Here, the report of Dr. Coulehan,
offered in the form of a letter addressed to
plaintiff’s counsel, was submitted by plaintiff
and is unsworn, and, thus, it is inadmissible on
summary judgment.11 Accordingly, even if the
plaintiff had properly pled gross negligence in
the amended complaint, her claims would still
fail as a matter of law because she has failed to
Furthermore, even assuming that Dr.
Coulehan’s unsworn report was admissible,
the Court concludes that it would still be
insufficient to allow plaintiff’s claim to
survive summary judgment because plaintiff’s
expert does not offer any expert testimony
regarding the proper standard of care, let
alone that the Ambulance Defendants grossly
departed from such standard, under the
p a r t i c u l a r c i r c u ms t a n c e s o f t h i s
case—specifically, where decedent was in
police custody and the police officers
repeatedly rebuffed the Ambulance
Defendants’ attempts to provide medical care
to decedent. Instead, Dr. Coulehan claims
that the relevant standard of care is
established by New York State EMS and
EMT protocols.12 However, after reviewing
the rules and protocols submitted by plaintiff
and exclusively relied upon by Dr. Coulehan,
the Court concludes that, even with his
testimony, no rational juror could conclude
that the Ambulance Defendants grossly
departed from the proper standard of care
under the undisputed facts of this case.13
12
The Court notes that the opinions within Dr.
Coulehan’s purported expert report, submitted as
part of plaintiff’s supplemental declaration on
November 24, 2009, are nearly identical to the
arguments within plaintiff’s opposition papers
submitted four months prior on July 28,
2009—namely, the relevant standard of care is
established by New York State EMS and EMT
protocols. (Pl.’s Mem. in Opp. at 12-19 & Ex. P.)
11
In fact, even after the Ambulance Defendants
raised the issue of the report being unsworn in their
Reply Affirmation, dated January 14, 2010,
plaintiff’s counsel did not request an opportunity to
re-submit a sworn report, but rather stated during the
telephone conference of February 7, 2011, that the
matter was fully submitted for the Court’s
determination.
13
Defendants also argue that Dr. Coulehan lacks
sufficient qualifications to testify regarding the
applicable standard of care owed to decedent by
17
Dr. Coulehan points to the New York
Bureau of EMS Policy Statement 98-05,
which states:
the defendants and whether the defendants grossly
departed from such standard. Under Rule 702, the
Court must determine whether the expert is qualified
“by knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. A court should look
at the totality of the witness’ qualifications in
making this assessment. See, e.g., Rosco, Inc. v.
Mirror Lite Co., 506 F. Supp. 2d 137, 144-45
(E.D.N.Y. 2007) (“A court must consider the
‘totality of a witness’ [ ] background when
evaluating the witness’[ ] qualifications to testify as
an expert.”) (quoting 29 WRIGHT & GOLD, FED.
PRAC. & PROC. § 6265, at 246 (1997)); accord
Keenan v. Mine Safety Appliances Co., No. CV-030710 (TCP)(ARL), 2006 WL 2546551, at *2
(E.D.N.Y. Aug. 31, 2006). Here, it is undisputed
that Dr. Coulehan is not a doctor specializing in
emergency medical care. Dr. Coulehan states that,
from the time of the completion of his residencies to
his retirement in 2007, he has “directed the ethics
and humanities program at Stony Brook Medical
School and chaired the ethics committee and ethics
case consultation service at Univeristy Hospital.”
(Pl.’s Supp. Decl. in Opp., Ex. B at 2.) Furthermore,
Dr. Coulehan has “authored over 200 articles and
book chapters in medical literature ranging in topic
from clinical trials of depression treatment in
primary care and studies of heart disease among
Navajo Indians to essays on medical humanities and
the physician client relationship.” Id. Besides not
being a doctor specializing in emergency medical
care or certified as an EMT, Dr. Coulehan has not
submitted any other form of documentary proof
attesting to his qualifications to opine on the subject
matter at hand. Thus, defendants contend that, as a
medical ethicist, Dr. Coulehan would not be
competent to testify regarding the relevant standard
of care owed to the decedent under the specific
circumstances of this case—namely, the standard of
care owed by the EMTs where it is undisputed that
the patient was in custody of police officers, the
EMTs repeatedly attempted to provide medical
assistance, and the police officers repeatedly ordered
the EMTs not to provide treatment based on their
characterization of the patient as being violent and
emotionally disturbed. See Stagl v. Delta Air Lines,
Inc., 117 F.3d 76, 80 (2d Cir. 1997) (“In some
Pursuant to the provisions of Public
Health Law, the individual having the
highest level of prehospital
certification and who is responding
with authority, ‘has a duty to act’ and
therefore is responsible for providing
and/or directing emergency medical
care and the transportation of a
patient.
(Pl.’s Supp. Decl. in Opp., Ex. B at 8-9; Pl.’s
Mem. in Opp. at 12 & Ex. P.) In addition, Dr.
Coulehan claims that the Ambulance
Defendants failed to comply with a number of
specific requirements dictated by EMS
protocols, including,
requirements that
EMTs: (1) interact with a patient upon arrival
to the scene to determine patient orientation;
(2) frequently obtain vital signs and conduct
other important assessments relevant to the
patient’s care; (3) administer oxygen to
patients in need, including patients with a
altered mental status; and (4) leave a properly
completed Prehospital Care Report with the
circumstances, therefore, a district court may
properly conclude that witnesses are insufficiently
qualified despite the relevance of their expertise is
too general or too deficient.”). However, the
Court need not address this issue because, even
assuming arguendo that Dr. Coulehan was
qualified to testify about the applicable standard of
care, no rational jury could conclude that the
defendants grossly departed from such standard
under the circumstances of this case given the
rules and protocols exclusively relied upon by Dr.
Coulehan and the other undisputed facts in this
case.
18
(Pl.’s Mem. in Opp., Ex. P.; Defs.’ Reply Aff.,
Ex. A.) The same policy then reiterates, in
bolded text, set apart from the remainder of
the policy within a shaded text box:
hospital when a patient is admitted. (Id. at 9-10;
Id. at 13-14 & Ex. P.)
However, in reviewing the rules and
protocols submitted by plaintiff as exhibits in
their entirety, and cited by Dr. Coulehan, the
Court concludes that they do not delineate the
standard of care for EMTs responding to the
specific circumstances provided by the facts
posed here, where it is undisputed that the
patient is in custody of police officers who
ordered the EMTs to not provide treatment,
based on their characterization of the patient as
being violent and emotionally disturbed.
All suicidal or violent threats or
gestures must be taken seriously.
These patients should be in police
custody if they pose a danger to
themselves or others.
(Id.)
Based on the foregoing, the EMS policy
statement and protocols, upon which plaintiff
and her expert exclusively rely to prove the
claim, do not establish the relevant standard of
care for EMTs where police have custody of
individuals who are emotionally disturbed,
who are violent or potentially violent and
where the police have ordered the EMTs not
to provide medical care.14 Accordingly,
First, EMS Policy Statement 98-05, which
Dr. Coulehan points to as establishing that the
Ambulance Defendants, rather than the police
officers, had chief responsibility for providing
medical care, includes language which
contemplates police command over potentially
dangerous situations:
It is recognized that patient care may be
provided in a variety of hazardous
conditions and that overall scene
command is the responsibility of locally
designated officials (Police, Fire, Health,
Municipal, etc.).
14
The Court notes that plaintiff also cites
violation of several EMS protocols unrelated to
the alleged failure of the Ambulance Defendants
to provide medical care at the residence and in the
ambulance, all involving the Prehospital Care
Report (“PCR”). Specifically, plaintiff alleges
that the PCR was deficient in content, and should
have been left at the hospital on the day of the
incident, as required by EMS policy. (Pl.’s Mem.
in Opp. At 12-13, 17-18, Ex. P.) However,
assuming arguendo that the EMS policy
establishes the proper standard of care, the
plaintiff has not produced any evidence which
indicates that the late filing and other technical
defects in the PCR caused the exacerbation of
decedent’s injuries or proximately caused his
death. Indeed, the Court finds that no reasonable
jury could find that the defects in the PCR were
the cause of the injuries at issue, because: (1) it is
undisputed that the police officers ordered the
Ambulance Defendants to stand back and not treat
Cox, thereby depriving them of the opportunity to
collect meaningful information for the PCR; and
(Pl.’s Mem. in Opp., Ex. P.) Second, the
specific EMS protocol regarding dealing with
patients who have an altered mental status
specifically dictates that EMTs should stand
down and remain at a safe distance if there
exists “potential or actual danger,” and that the
police should be involved for safety purposes:
Assess the situation for potential or
actual danger. If the scene/situation is
not safe, retreat to a safe location, create
a safe zone and obtain additional
assistance from a police agency.
19
a rebreather mask to supply oxygen to Cox
but the officers ordered him not to apply the
mask. (Pl.’s Counter 56.1 ¶¶ 59, 60.) EMT
Smith then advised the police officers that
Cox should be repositioned on the stretcher so
that he was face up, with his head at the other
end of the stretcher, but he was rebuffed by
the police officers who told him that
repositioning Cox would be unsafe. (Id. ¶¶
62, 63.) During the ambulance ride, there
were three police officers restraining Cox and
the police officers directed EMT Smith to not
provide Cox with medical treatment. (Pl.’s
56.1 ¶¶ 11, 14.) After EMT Smith again
attempted to apply a rebreather mask, the
police again ordered him not to do so because
Cox was combative. (Pl.’s Counter 56.1 ¶
64; Pl.’s Ex. G at 93.) Finally, once the
ambulance arrived at the hospital, the police
officers would not allow medical treatment
and Cox to be transferred to a hospital
stretcher without hospital restraints. (Id. ¶¶
70, 146.) Except for the very last line of his
report, in which he concludes that “[the
EMTs] behavior was a gross departure from
good and acceptable standards for emergency
medical personnel,” Dr. Coulehan fails to
state any behaviors that were a gross deviation
from the standard of care established by the
rules and protocols. (See Pl.’s Supp. Decl. in
Opp., Ex. B at 12.) It appears that Dr.
Coulehan bases his conclusion on his opinion
that “the patient’s welfare should have
outweighed considerations of personal
safety,” and that the EMTs could have made
further attempts to provide medical care,
including attempts to administer oxygen. (See
Pl.’s Supp. Decl. in Opp., Ex. B at 8.) First,
these conclusory remarks do not sufficiently
establish what the relevant standard of care is,
or that there has been a gross departure from
it, for the circumstances presented in this
case—namely, the evaluation and treatment of
a patient in police custody where officers
because the EMS policy statement and protocols
relied upon by the expert do not establish the
relevant standard of care, the Court concludes
that the proffered report is insufficient to raise a
genuine issue of fact on that question that
survives summary judgment.
Finally, even assuming that the rules and
protocols cited by the expert establish the
relevant standard of care, plaintiff has failed to
adduce any evidence that there was a gross
deviation from such standard by the Ambulance
Defendants as required under New York Public
Health Law § 3013(1). See Kowal, 13 A.D.3d
at 491 (“[D]efendants, in view of their status as
a voluntary ambulance service, would not be
liable unless it is established that the plaintiff’s
decedent’s injury and death were caused by
their gross negligence.”) Here, it is undisputed
that the decedent was an emotionally disturbed
person and violent. (Pl.’s Counter 56.1 ¶ 43;
see supra footnote 3.) Furthermore, it is
undisputed that the EMTs continually attempted
to provide medical care to Cox from the time
that they arrived at the residence until the
ambulance arrived at the hospital. First, after
arriving at the residence, EMT Smith prepared
(2) any information that was or could have been
included in the PCR could not have had any impact
on the hospital’s treatment of decedent, given that it
is undisputed that he was in cardiac arrest by the
time the police officers allowed Cox to be accessed
or treated by hospital employees. Accordingly, to
the extent that plaintiff has attempted to state claims
for gross negligence and wrongful death related to
improper handling of the PCR, summary judgment
is warranted. See, e.g., Siegel v. Metro-North
Commuter Railroad Co., No. 07-CV-6025 (DC),
2009 WL 889985, at *1 (S.D.N.Y. Apr. 1, 2009)
(granting summary judgment where no reasonable
jury could find that plaintiff proved causation);
accord Fragrance Express Dot Com, Inc. v.
Standard & Poor’s Corp., 314 F. Supp. 2d 189, 195
(S.D.N.Y. 2003).
20
repeatedly refused the EMTs’ attempts to
provide medical care. Furthermore, it is
undisputed that the EMTs made numerous
attempts to provide medical care, including,
specifically, attempts to provide oxygen in the
form of a rebreather mask. Second, Dr.
Coulehan’s opinion that the EMTs should have
disregarded considerations of personal safety is
inapposite. The undisputed record demonstrates
that the EMTs did not withhold medical care
because of concerns for their personal safety,
but rather because they were ordered not to
provide medical care by the police officers who
had the decedent in custody the entire time the
EMTs were with him.15 Indeed, the undisputed
record demonstrates that the EMTs continued to
attempt to provide medical care despite
previously being ordered to stand down because
Cox was violent. In short, plaintiff has failed to
provide any evidence that the EMTs “evince[d]
a reckless disregard for the rights [of the
decedent] . . . or intentional wrongdoing.’”
Colnaghi, USA v. Jeweler’s Protection Services,
81 N.Y.2d 821, 823-24 (N.Y. 1993); see also
See Food Pageant, 54 N.Y.2d at 172 (“[G]ross
negligence has been termed failure to exercise
even slight care.”); accord Harvey v. Plains
Twp. Police Dept., 421 F.3d 185, 195-196 (3d
Cir. 2005) (“[A] private citizen acting at the
orders of a police officer is not generally acting
in a willful manner, especially when that citizen
has no self-interest in taking the action.”)
negligent where it is undisputed that they
repeatedly attempted to render medical care,
and were denied by the police officers who
had the decedent in custody. Accordingly,
because plaintiff failed to develop evidence
from an expert witness to establish a critical
component of their prima facie case, summary
judgment is warranted. Deadwyler v. North
Shore Univ. Hosp. at Plainview, 866 N.Y.2d
306, 307 (N.Y. App. Div. 2008) (affirming
judgment as a matter of law because “plaintiff
presented no evidence from an expert witness
as to the applicable standard of care” and
therefore “failed to establish a prima facie
case of medical malpractice”); see also
Harper v. Findling, 832 N.Y.S.2d 266,
267 (N.Y. App. Div. 2007).
In sum, pursuant to Public Health Law §
3013, the Ambulance Defendants could be
held liable only if their emergency medical
technicians were grossly negligent in
rendering emergency medical assistance to
decedent.
As a threshold matter, the
Ambulance Defendants are entitled to
summary judgment because the plaintiff failed
to plead gross negligence and never sought
leave to amend the complaint. In addition,
even if the plaintiff had properly pled gross
negligence in the amended complaint,
plaintiff’s claims would still fail as a matter of
law, because the unsworn expert report
submitted by plaintiff is inadmissible on
summary judgment and, thus, plaintiff has
failed to produce sufficient evidence
regarding the applicable standard of care
owed by the Ambulance Defendants and that
the Ambulance Defendants were grossly
negligent. Finally, even assuming that the
proffered unsworn report was admissible, the
Court concludes that it would be insufficient
to raise a triable issue of fact that survives
summary judgment because the rules and
protocols upon which it relies fail to establish
the applicable standard of care under the
Thus, even if the expert report was
admissible, plaintiff has failed to demonstrate
that the Ambulance Defendants were grossly
15
Furthermore, for the reasons discussed supra, the
rules and protocols cited by plaintiff do not provide
the authority for medical personnel to ignore orders
by the police, and based on its own independent
research, the Court is unaware of any law that
exempts EMS professionals from following police
orders.
21
particular circumstances of this case. Moreover,
even if it did establish the standard of care,
plaintiff’s evidence fails to provide a sufficient
basis for a rational jury to conclude that the
Ambulance Defendants were grossly negligent
in failing to provide care where it is undisputed
the police officers directed them not to provide
care. Accordingly, summary judgment is
granted on plaintiff’s state law claims for
negligence and wrongful death as against the
Ambulance Defendants.
IV. CONCLUSION
For the foregoing reasons, the Ambulance
Defendants’ motion for summary judgment is
granted in its entirety. The Clerk of the Court
shall terminate South Country Ambulance,
EMT L. Smith, EMT D. Totong, EMT S. Al
Qadri and Ambulance Driver M. Sneed as
defendants from this civil action.
SO ORDERED.
_________________
JOSEPH F. BIANCO
United States District Judge
Dated:
June 15, 2011
Central Islip, New York
***
The attorney for plaintiff is Frederick K.
Brewington, Esq. of the Law Offices of
Frederick K. Brewington, 556 Peninsula
Boulevard, Hempstead, New York 11550. The
attorney for defendants South Country
Ambulance, EMT Smith, EMT Totong, EMT Al
Qadri and Ambulance Driver Sneed is Jeffrey
B. Siler of Siler & Ingber, LLP, 1399 Franklin
Avenue, Suite 103, Garden City, New York
11530.
22
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