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JOSEPH G. O'LEARY, ETC., ET AL., APPELLANTS, v. GREENPORT FIRE DEPARTMENT, ET AL., RESPONDENTS, ET AL., DEFENDANTS. (Action No. 1) JOSEPH G. O'LEARY, ETC., ET AL., PLAINTIFFS,

DECISION ORDER

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the plaintiffs' contentions, they failed to demonstrate the existence of any genuine issue of fact to rebut the respondents' prima facie showing of entitlement to judgment as a matter of law. Pursuant to Public Health Law § 3013(1), the respondents could be held liable only if their emergency medical technicians were grossly negligent in rendering emergency medical assistance to the plaintiffs' decedent (see, Rider v. Gaslight Tavern Corp., 125 A.D.2d 144; Woody v. Astoria Gen. Hosp., 264 A.D.2d 318). The plaintiffs failed to come forward with any persuasive evidence to support the claim of gross negligence (see, Amsler v. Verrilli, 119 A.D.2d 786). Moreover, the plaintiffs failed to plead gross negligence, and never sought leave to amend the complaint (see, Ciriello v. Virgues, 156 A.D.2d 417; Lotito v. Lund, 129 A.D.2d 776). The plaintiffs' remaining contentions are without merit.

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O'LEARY v. GREENPORT FIRE DEPARTMENT
(Oct 10, 2000)