Justice Phyllis Orlikoff Flug
Defendants, including City of New York, moved for dismissal of plaintiff’s complaint in this action to recover damages for the alleged wrongful death of Radvin. Plaintiffs claimed the death was a direct result in the delay of the arrival of an ambulance due to defendants’ negligence in snow removal efforts during and after a storm. The court noted the duty to keep streets in a reasonably safe condition for travel was proprietary, and contrary to defendants’ contentions, governmental immunity did not apply. Yet, as plaintiffs claims did not stem from their direct use of the road, defendants did not owe any duty to them, and they could not state a cause of action to recover for defendants’ alleged breach of their duty to keep the streets reasonably safe. However, the court ruled the amended complaint adequately alleged all of the elements necessary to state a cause of action of failure to provide adequate emergency services. Also, contrary to the city’s allegations, same was not a new theory of liability as plaintiffs’ notice of claim included allegations regarding the city’s alleged negligent provision of ambulance services. Thus, the city’s motion was granted to the extent that plaintiffs’ claim for negligent snow removal was dismissed.
