I.M. v. City of New York

I.M. v City of New York

2026 NY Slip Op 05371 September 22, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. I.M., an Infant by his Parent and Natural Guardian, Denise Bryant, et al., Plaintiffs-Respondents, v

The City of New York et al., Defendants-Appellants.

Decided and Entered: September 22, 2026

Index No. 814899/21|Appeal No. 6960|Case No. 2025-06945|

Before: Webber, J.P., Kapnick, Gesmer, Pitt-Burke, Chan, JJ.

Muriel Goode-Trufant, Corporation Counsel, New York (Hanna L. St. Marie of counsel), for The City of New York and The Fire Department of the City of New York, appellants.

Fullerton Beck LLP, White Plains (Edward J. Guardaro, Jr. of counsel), for Empress Ambulance Service, LLC, appellant. Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for respondents. [*1]

Order, Supreme Court, Bronx County (Michael A. Frishman, J.), entered September 19, 2025, which, to the extent appealed from, denied the separate motions of defendants the City of New York and the Fire Department of the City of New York (FDNY) (together, the City) and defendant Empress Ambulance Service, LLC for summary judgment dismissing the amended complaint as against them, modified, on the law, to dismiss the cause of action for negligent hiring, training, and retention (the fourth cause of action) as against the City, and otherwise affirmed, without costs. This medical malpractice action stems from defendants' alleged negligence during infant plaintiff I.M.'s birth. On June 26, 2020, plaintiff Denise Bryant learned that she was pregnant with twins. In the early morning hours of August 30, 2020, at approximately 2 a.m., Bryant went into labor and called 911. EMTs from the FDNY arrived at 2:04 a.m. The first twin, E.M., was delivered at 2:10 a.m., shortly after arrival of the EMTs. Paramedics from Empress arrived at the scene at approximately 2:14 a.m. The parties and witnesses disagree about the events and conversations that took place after 2:10 a.m. The EMTs and the Empress paramedics ultimately transported Bryant and E.M. to North Central Bronx Hospital, where Bryant delivered I.M. at approximately 2:50 a.m. I.M. was immediately transferred to the neonatal intensive care unit where doctors determined that he suffered from multiple birth defects, including hypoxic ischemic encephalopathy, a brain injury caused from insufficient oxygen in utero.

Plaintiffs sued Empress and the City, alleging that defendants deviated from good and accepted practice by failing to deliver I.M. either in Bryant's home or in the ambulance, and by either instructing Bryant not to push or failing to instruct her to push. They further alleged that these deviations delayed I.M.'s delivery, causing serious injuries to the infant and loss of chance at a better outcome. Both defendants moved for summary judgment. Supreme Court denied the motion in full. We modify to dismiss the cause of action for negligent hiring, training, and retention as against the City, and otherwise affirm.

[*2]

First, Supreme Court correctly held that issues of fact remain as to whether the City owed a special duty to plaintiffs. The parties do not dispute that the City was engaged in a governmental function at the time of the underlying events. Therefore, "the next inquiry focuses on the extent to which the municipality owed a 'special duty' to the injured party"

(Applewhite v Accuhealth, Inc., 21 NY3d 420, 426 [2013]). Plaintiffs argue that the City voluntarily assumed a duty to plaintiffs beyond what was owed to the general public. In order to establish that special relationship, plaintiffs must prove: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 260 [1987]). The City disputes only the second element, that the EMTs knew that their inaction could lead to harm. Supreme Court correctly held that there are issues of fact as to whether the EMTs who first responded to Bryant's 911 call knew that their inaction â​​ specifically, instructing Bryant not to push, and not attempting to deliver I.M. in Bryant's home â​​ could lead to harm, and thus whether the City owed plaintiffs a special duty (see id.). The EMTs both testified that they were aware of the applicable Regional Emergency Medical Advisory Committee (REMAC) protocols, which govern emergency medical services in New York City. The parties' competing expert opinions as to what the EMTs were required to do in accordance with those protocols raise an issue of fact as to the EMTs' knowledge at the time of the

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underlying events (see e.g. Artemiou v City of New York, 220 AD3d 437, 439 [1st Dept 2023]).^FN1 Although the record does not contain any explicit evidence that the EMTs knew their inaction could lead to harm, plaintiffs may prove this element by circumstantial evidence as to what the EMTs should have known at the time that they responded to Bryant's 911 call (see Coleson v City of New York, 24 NY3d 476, 482 [2014]; Sciortino v Leo, 60 AD3d 1470, 1471 [4th Dept 2009], lv denied 13 NY3d 706 [2009]).

Nor did the City establish its entitlement to governmental function immunity, as it did not establish that its actions

"actually resulted from discretionary decision-making â​​ i.e., 'the exercise of reasoned judgment [that] could typically produce different acceptable results' " (Valdez v City of New York, 18 NY3d 69, 79-80 [2011], quoting Tango v Tulevech, 61 NY2d 34, 41 [1983]).

[*3]

Here, the parties dispute what the REMAC protocols required of the EMTs, but they both agree that the EMTs' actions are to be guided by those protocols. Under the REMAC protocols, when responding to a call involving multiple births, the EMTs are to (1) deliver each multiple birth according to the protocol for emergency childbirth, making sure to tie each umbilical cord between births; (2) clamp and cut the cord of the first neonate prior to the next birth; and (3) if the second birth does not occur within 10 minutes, begin transport.

The City argues that properly understood, the REMAC protocols impart that childbirthâ​​particularly multiple birthsâ​​carries risks that must be assessed by EMTs and paramedics in choosing a course of action. The City further argues that the EMTs exercised discretion in applying the REMAC protocols, and therefore that its decision not to attempt an on-scene delivery and instead to transport Bryant to North Central Bronx Hospital was both discretionary in nature and complied with the REMAC protocols.

Plaintiffs disagree. They argue that the REMAC protocols set out clear mandates and instructions which the EMTs failed to follow. Specifically, they argue that pursuant to the REMAC protocols, the EMTs had a duty to attempt for 10 minutes to deliver I.M. on the scene before initiating transport. Plaintiffs further argue that, rather than making appropriate discretionary decisions under REMAC, the EMTs disregarded the REMAC protocols and substituted their own independent judgment. Accordingly, they argue that the City should not be able to escape liability under the governmental function immunity exception.

We agree with Supreme Court that issues of fact remain as to whether the EMTs correctly followed the REMAC protocols and whether their decisions were discretionary. Valdez held that while there can be little dispute that the governmental function of EMTs responding to emergencies involves the exercise of judgment and discretion, based upon a variety of factors present in an emergency and the urgencies of any given situation, the focus must be on "the conduct on which liability is predicated" (Valdez,18 NY3d at 76). Contrary to the dissent's contention, this case differs from Morales v City of New York (235 AD3d 595 [1st Dept 2025]). There, the plaintiffs failed to identify any specific protocol that the first responders supposedly violated, and this Court held that "a generally uniform approach in assessment and care" did not "change the discretionary nature" of the first responders' actions (id. at 597). In contrast, plaintiffs here argue that the EMTs failed to follow clear directives under the REMAC protocols and that the REMAC protocols called for a clear course of action that the EMTs did not follow. Therefore, we affirm Supreme Court's denial of summary judgment as to plaintiffs' negligence claims.

[*4]

The cause of action for negligent hiring, training, and retention as against the City is dismissed, as plaintiffs did not oppose that branch of the City's motion in Supreme Court, nor do they oppose it on appeal. Second, as to Empress's appeal, Empress established its prima facie entitlement to summary judgment dismissing plaintiffs' cause of action for malpractice as against it through the opinion of its expert emergency medicine physician. Empress's expert explained in detail what the standard of care was under the applicable REMAC protocols, why that was the applicable standard of care, the evidence that Empress's paramedics did not depart from that standard, and the reasons that I.M.'s claimed injuries were not causally related to any claimed departures by Empress's paramedics from the applicable standard of care (see e.g. Buckner v St. Luke's Roosevelt Hosp. Ctr., 103 AD3d 535, 535 [1st Dept 2013]). In opposition, plaintiffs raised issues of fact through the opinions of their expert paramedic and OB/GYN. Plaintiffs' experts explained, in just as much detail as Empress's expert, what was required of Empress's paramedics under the applicable REMAC protocols, why it was required of them, how the Empress paramedics departed from the applicable protocols, and how those departures proximately caused I.M.'s injuries. Accordingly, the parties' "dueling expert opinions raise issues of fact and credibility that cannot be resolved on a motion for summary judgment" (Labby v Cummings, 246 AD3d 663, 665 [1st Dept 2026], quoting Diaz v NYU Langone Med. Ctr., 192 AD3d 534, 536 [1st Dept

2021]).

We have considered Empress's remaining contentions and find them unavailing. All concur except Pitt-Burke and Chan, JJ., who dissent in part in a separate memorandum by Pitt-Burke, J. as follows:

Pitt-Burke, J. (Dissenting In Part)

Assuming without conceding that the majority is correct in stating that issues of fact remain as to whether a special duty exists, the City has nevertheless established entitlement to governmental function immunity precluding liability, as the actions taken by the EMTs were discretionary. Therefore, while I agree with the majority that Supreme Court correctly denied Empress's motion for summary judgment, I dissent in part and would modify the Supreme Court's order to grant the City's motion for summary judgment and dismiss the complaint as against it. [*5]

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