The following e-filed documents, listed by NYSCEF document number (Motion 002) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION This is an action to recover for personal injuries allegedly sustained by plaintiff RHONDA TRAPP on September 17, 2015, in the ambulance bay of the Emergency Department of North Shore Long Island Jewish Medical Center located at 270-05 76 Street, New Hyde Park, New York. Plaintiff alleges that she was a patient in a New York City Fire Department (“FDNY”) ambulance and that she sustained injuries when the stretcher was being removed from the ambulance and fell to the ground. Now pending before the court is a motion filed by all defendants, THE CITY OF NEW YORK, BRIANA REARDON and JENNIFER BENEGAS (collectively, the “City”), seeking an order, pursuant to CPLR 3211, (i) dismissing the complaint against BRIANA REARDON and JENNIFER BENEGAS (collectively, the “EMTs”), and (ii) dismissing plaintiff’s cause of action for negligent hiring and retention. Upon the foregoing documents, this motion is DENIED. Plaintiff’s Cause of Action for Negligent Hiring and Retention With respect to that branch of the motion seeking to dismiss plaintiff’s cause of action for negligent hiring and retention, plaintiff withdrew this claim in her opposition papers. Accordingly, this branch of the motion is GRANTED on consent. Facts With respect to that branch of the City’s motion motion seeking to dismiss the complaint against the EMTs, the relevant facts, which are not in dispute, are as follows: Plaintiff1 filed a Notice of Claim (“NOC”) (NYSCEF Document #56) dated November 4, 2015. This NOC (the “first NOC”) did not list or mention either EMT individually, by name or by a “placeholder name” such as “Jane Doe.” In fact, the caption of the first NOC reads: In the Matter of the Claim of Rhonda M. Trapp Claimant v. The City of New York, New York City Police Department, New York City Fire Department, New York City Emergency Medical Services and New York City Emergency Medical Services A Division of the New York City Fire Department Respondent. On November 11, 2015, after the first NOC had been filed, plaintiff retained new counsel (Law Office of Cohen and Jaffe, LLP). Plaintiff’s new counsel then served and filed a second NOC (the “second NOC”) on December 3, 2015 (NYSCEF Document # 74). This second NOC was created electronically, using a 5-page template fillable PDF form (Form Version: NYC-COMPT-BLA-PIl-B), wherein counsel was able to type text into certain fields, and then file the completed NOC by electronically uploading it. Here, the relevant sections of the form set forth the following: Manner in which claim arose: On September 17,2015, the claimant was complaining of multiple medical complaints, and required transportation by Emergency Medical Services of the Fire Department of the City of New York (hereinafter “EMS”) to get to Long Island Jewish Medical Center. Upon arriving in the parking lot of NSLIJ Emergency Department, the emergency service personnel negligently caused and allowed claimant to fall off the ambulance stretcher causing her to strike her head, back, shoulders and neck on the back of the ambulance and then on the ground. Respondents, their servants, agents and/or employees, were negligent, reckless and committed acts and omissions in failing to transport the claimant in a proper and timely manner to an emergency room; in negligently, carelessly and recklessly causing claimant to fall off of the ambulance stretcher; respondents failed and omitted to prevent claimant from falling off the ambulance stretcher; respondents failed and omitted to ensure that fall precautions were in effect; failed and omitted to attach the appropriate significance to the fact that claimant was a fall risk; failed and omitted to implement proper fall precautions; failed and omitted to comply with emergency medical service rules, regulations and/or protocols; failed and omitted to comply with various rules, regulations and/or protocols; in failing to act in accordance with respondents own rules, regulations and protocols; caused and/or allowed the claimant to suffer a life-threatening condition as a result of respondents negligence, carelessness, and recklessness; failed to conform to the accepted standards of care and skill in giving advice, treatment, evaluations, examinations, information, and/or facts to the claimant; in negligently hiring and dispatching individuals to claimant’s home who were not qualified and lacked the skills, knowledge and/or training to respond to the medical complaints of the claimant; in failing to properly train emergency medical service personnel; in failing to maintain their equipment; in failing to properly use their equipment. Furthermore, it is claimed that the respondents, their servants, agents and/or employees were negligent in hiring and supervising medical personnel, police personnel, fire personnel, and emergency service personnel who were careless, reckless, unskilled, negligent and who did not possess the requisite knowledge and skill of medical professionals, fire professionals and emergency medical service professionals in the community Complete if claim involves a NYC vehicle City vehicle information Plate #: Unit 47F3 City Driver Last Name: EMT Reardon City Driver First Name: EMT Banegas City’s motion In its motion, the City argues that General Municipal Law (“GML”) §50-i and §50-e require that where the municipality may be responsible for that employee’s defense, the notice of claim must specifically name an individual in order to proceed with an action against that individual. The City argues that plaintiff’s complaint should be dismissed against the EMTs because plaintiff failed to timely serve and file a notice of claim against them as individuals. Standard for Motion to Dismiss “On a motion to dismiss, pursuant to CPLR 3211, the pleading is to be afforded a liberal construction […] We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 NY2d 83 [NY Ct. of Appeals 1994]). The NOC GML §50-k (Civil actions against employees of the city of New York) provides, in part: 2. At the request of the employee and upon compliance by the employee with the provisions of subdivision four of this section, the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court including actions under sections nineteen hundred eighty-one through nineteen hundred eighty-eight of title forty-two of the United States code arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties […] 6. […] No action or proceeding instituted hereunder, other than one instituted pursuant to sections nineteen hundred eighty-one through nineteen hundred eighty-eight of title forty-two of the United States code shall be prosecuted or maintained against the city or any agency or an employee unless notice of claim shall have been made and served upon the city in compliance with section fifty-e of this chapter and within ninety days after the claim arises [emphasis added]. As plaintiff correctly argues, the plain language of General Municipal Law §50-e, strictly construed, does not require individual municipal employees to be specifically identified in a notice of claim. Plaintiff also correctly argues that the Second, Third, and Fourth Departments have each held that listing the names of the individuals who allegedly committed the wrongdoing is not required. See Blake v. City of New York, 148 AD3d 1101) Sup. Ct. App. Div. 2d Dept 2017) (recognizing that there is a split in appellate authority on the issue of whether a plaintiff is required to name individual municipal employees in a notice of claim in order to maintain a subsequent action against those employees). The Appellate Division, First Department has held, however, that ‘General Municipal Law §50-e makes unauthorized an action against individuals who have not been named in a notice of claim’ (Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4, citing White v. Averill Park Cent. School Dist., 195 Misc.2d 409, 411, 759 N.Y.S.2d 641 [Sup. Ct., Rensselaer County]). In Alvarez v. City of New York, 134 A.D.3d 599, 22 N.Y.S.3d 362, the First Department explained in a plurality opinion that its rationale for so holding is that a notice of claim which does not put the municipality on notice that it will seek to impose liability upon specific employees in their individual capacities is insufficient to allow the municipality to make a timely investigation into and assessment of the merits of the claim against those employees. The plurality opinion in that case stated that the names of individual employees, if unknown, should still be named as John or Jane Does to enable the municipality to properly investigate the claims and to put individual defendants on notice that they will be sued. However, the purpose of the notice of claim requirement is to notify the municipality, not the individual defendants (see Zwecker v. Clinch, 279 A.D.2d 572, 573, 720 N.Y.S.2d 150). In contrast, the Appellate Division, Fourth Department, has held that naming individual municipal employees in a notice of claim is not a condition precedent to joining those individuals as defendants in the action (see Goodwin v. Pretorius, 105 A.D.3d 207, 962 N.Y.S.2d 539). In Goodwin, the Fourth Department noted that General Municipal Law §50-e(2), which sets forth the requirements for a notice of claim, does not include a requirement that specific individual employees be named, and concluded that “[t]he underlying purpose of the statute may be served without requiring a plaintiff to name the individual agents, officers or employees in the notice of claim” (id. at 216, 962 N.Y.S.2d 539). In Pierce v. Hickey, 129 A.D.3d 1287, 1289, 11 N.Y.S.3d 321, the Appellate Division, Third Department, followed Goodwin, stating that there was no requirement that ‘an individual municipal employee be named in the notice of claim.’ In Blake, the court agreed with the Third and Fourth Departments in finding that General Municipal Law §50-e(2) requires that “[t]he notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.” Listing the names of the individuals who allegedly committed the wrongdoing is not required (see Scott v. City of New Rochelle, 44 Misc.3d 366, 377-378, 986 N.Y.S.2d 819 [Sup. Ct., Westchester County]). Accordingly, the court concluded that the Supreme Court should not have granted dismissal of Blake’s second and third causes of action, alleging common-law false arrest and malicious prosecution, respectively, insofar as asserted against Hanrahan, O’Hara, and Miltenberg for failure to name these defendants in his notice of claim. However, as the City correctly argues, the First Department, which controls, has interpreted the GML to require that a notice of claim specifically name an individual in order to proceed with an action against that individual, where the municipality may be responsible for that employee’s defense, pursuant to GML §50-k. Tannenbaum v. City of New York2, 30 AD3d 357, 358 [1st Dept 2006]. In reaching its determination, the First Department held that: General Municipal Law §50-e makes unauthorized an action against individuals who have not been named in a notice of claim […], thus warranting dismissal of the state claims against Bonavoglia and Ortolano. Six years later, in Cleghorne v. City of New York, 99 AD3d 443, 448 (Sup. Ct. App. Div. 1st Dept 2012), the First Department held: That an action could not proceed against the individual defendants because they were not named in the notice of claim (see General Municipal Law §50-e; Tannenbaum v. City of New York, 30 A.D.3d 357, 358, 819 N.Y.S.2d 4 [1st Dept.2006]). Three years later, the First Department issued its decision in Alvarez v. City of New York, 134 AD3d 599 (Sup. Ct. App. Div. 1st Dept 2015), which again upheld the Court’s prior determinations that individual defendants must be named in the NOC. The facts in Alvarez, as it discusses Tannenbaum, is worth highlighting here: Plaintiff Jose Alvarez alleges that, at approximately 7:30 p.m. on April 30, 2008, he was falsely arrested by members of the New York City Police Department (NYPD). In his notice of claim, filed against defendant City of New York and “the New York City Police Department” in June 2008, Alvarez alleged, inter alia, that he was the subject of “[a]ssault, battery, excessive force, police brutality, false imprisonment, [and] false arrest.” His notice of claim, as well as those filed on behalf of the other family member plaintiffs, did not specifically name any members of the NYPD responsible for these alleged acts, nor did they contain a generic reference to individual officers such as “Police Officer John Doe” or any similar language indicating that plaintiffs were making a claim against any police officers individually. In September 2008, plaintiffs commenced the present action against the City, NYPD and “Police Officer John Doe a/k/a Officer Green and Police Officer John Doe Badge Number 14007.” An amended complaint was filed on March 28, 2011 to add four additional named police officers as defendants. Neither the complaint nor the amended complaint allege that any of the officers acted in other than their official capacities, which allegation would obviate the need to file a notice of claim against them […]. To the contrary, the pleadings contained specific allegations that the police officers acted wholly within their official capacities. […] In September 2013, the individual police officer defendants moved pursuant to CPLR 3211(a)(7) to dismiss the state law claims against them, arguing that they had not been named in the notice of claim. Plaintiffs opposed, arguing, inter alia, that the plain language of General Municipal Law §50-e, strictly construed, does not require individual municipal employees to be specifically identified in a notice of claim in order to be named as individual defendants in the subsequent action. The motion court, relying on the decisions in Tannenbaum v. City of New York, 30 A.D.3d 357, 819 N.Y.S.2d 4 (1st Dept.2006) and Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 526, 548 N.Y.S.2d 943 (2d Dept.1989) […], granted defendants’ motion, noting that, since the amended complaint alleged that the individual defendants were liable for the conduct undertaken in their official capacities, such claims had to be dismissed where they were not specifically named in the notice of claim. […] […] Tannenbaum involved claims similar to those presented in the case before us, and considered the concerns raised by the dissent [in this case]. The plaintiff was arrested in January 1999. After filing a notice of claim naming, inter alia, the City of New York and an individual NYPD detective who was involved in his case, he commenced an action in December 1999 against those defendants. In February 2000, the plaintiff was acquitted of all charges and he filed a second notice of claim against the City, the NYPD, and the same detective. He also added as defendants Bronx County D.A. Johnson and a named Bronx County ADA. In January 2001, the plaintiff commenced a second action against those defendants. He subsequently amended his complaint in the second action to add as defendants two additional Bronx County ADAs (the prosecutor defendants) who were not named in either notice of claim. Ultimately, the prosecutor defendants moved to dismiss the amended complaint on the ground, inter alia, that the plaintiff had failed to name them in the notice of claim. The motion court granted the motion and […] we affirmed that portion of the decision with respect to the dismissal of the state law claims against the prosecutor defendants (Tannenbaum at 358, 819 N.Y.S.2d 4). […] The motion court’s order should therefore be affirmed. As set forth above, the law in the First Department is well settled that a notice of claim must specifically name an individual in order to proceed with an action against such individual. Whether EMTs Were Properly Named Here The question now turns on whether the EMTs were properly “named” in the NOCs in this case. With respect to the first NOC, it is undisputed that the EMT’s were not individually named as defendants. The caption of the NOC included five defendants, none of whom were individuals. With regard to the second NOC, it is important to note that unlike the first NOC, which generated a caption, the second NOC was created using an electronic, computer-generated form that does not include a formal caption. In the space on the form for “City Driver Last Name,” plaintiff’s counsel named “EMT Reardon,” and in the space on the form for “City Driver First Name,” plaintiff’s counsel named “EMT Banegas.” As was confirmed by the City during oral arguments before the court, on October 6, 2021, there is no other space on the NOC form in which plaintiff could have inserted the names of the EMT’s. As plaintiff correctly argues, this court finds that the insertion of the EMTs’ names in the space marked “City Driver” meets the naming requirements set forth in the GML. The City’s argument that the second NOC merely lists the EMTs as drivers, but fails to give notice that they are potential defendants, or that the action would be filed against either EMT as individuals, is belied by the record. Here, there is no question that plaintiff’s theory of the case, from the very beginning, has been that she sustained injuries when two EMTs allowed the stretcher, that plaintiff was on, to fall to the ground. Notably, in the second NOC, plaintiff described, in the section titled “Manner in which claim arose,” that “the emergency service personal negligently caused and allowed claimant to fall off the ambulance stretcher causing her to strike her head, back, shoulders and neck on the back of the ambulance and then on the ground.” (NYSCEF Doc No 74). Similarly, and consistent with the allegations set forth in the second NOC, in her complaint, plaintiff alleges that “at the above time and place, while defendants BRIANA REARDON and JENNIFER BENEGAS, were unloading the ambulance stretcher they caused and allowed the stretcher to fall, striking the ambulance and the ground causing plaintiff, RHONDA TRAPP, to sustain serious injuries. (Verified Complaint 28, NYSCEF Doc No 1).3 It is clear on this record that the two individuals plaintiff was referring to, in the second NOC and against whom she was filing suit, were EMT Reardon and EMT Banegas. Importantly, at plaintiff’s 50-h hearing on March 10, 2016, plaintiff named the individual EMTs and plaintiff’s counsel provided the City’s attorney with the names and badge numbers of each EMT. Further, both EMT’s are named in the caption of the Summons and Verified Complaint and affidavits of Service (NYSCEF Doc Nos 6 and 7) indicate that plaintiff served copies of the same and the City also served an “Amended Answer” (NYSCEF Doc No 58). In light of the unique circumstances of this case, and giving plaintiff the benefit of every possible favorable inference, this court finds that plaintiff properly named the individual EMT’s in the second NOC. Accordingly, it is hereby: ORDERED that the branch of the City defendant’s motion seeking an order dismissing plaintiff’s complaint, pursuant to CPLR 3211, against Briana Reardon and Jennifer Benegas is DENIED; and it is further hereby ORDERED that the branch of the City defendant’s motion seeking to dismiss plaintiff’s cause of action for negligent hiring and retention is GRANTED on consent, as such claim has been withdrawn by plaintiff in her opposition papers. This is the Decision and Order of this court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: October 18, 2021
