This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
When a city sends an ambulance in response to a 911 call, it is performing a governmental function, and it can be held liable only if it owed the injured person a “special duty.” Here, the Second Department held that the City’s motion to dismiss a wrongful death complaint should have been granted because no such duty was alleged, even though a discovery sanction barred the City from offering evidence on liability.
The case
- Court
- Appellate Division, Second Department
- Decided
- October 7, 2026
- Case
- Davis v City of New York
- Citation
- 2026 NY Slip Op 05766
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff, individually and as administrator of the decedent’s estate, sued the City of New York and certain City agencies for negligence and wrongful death, alleging that after the decedent’s coworker called 911, they negligently dispatched an ambulance that was not equipped with oxygen to treat the decedent’s asthma attack. In July 2024, the City moved to dismiss. That month, on the plaintiff’s unopposed discovery motion, the Supreme Court, Queens County, barred the City from offering evidence on dispositive motions or at trial on liability. The City moved to vacate that order; the plaintiff cross-moved for summary judgment on liability and won. The City appealed.
The holding
The Second Department modified the order. It left the discovery sanction in place, but held that “an order precluding the submission of evidence, unlike the striking of an answer, does not relieve the plaintiff of his or her obligation to establish a prima facie case in the first instance” (2026 NY Slip Op 05766, *2). On the merits, it held: “When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party” (id.). The plaintiff “failed to allege facts which would establish that the defendants voluntarily assumed a duty or special relationship with the decedent beyond what was owed to the public generally” (id. at *3). The court granted the City’s motion to dismiss.
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decisions in Applewhite v Accuhealth, Inc. (21 NY3d 420) and Cuffy v City of New York (69 NY2d 255).
What it means
- Proving a special duty is the plaintiff’s job, because, as the court said, “the duty is an essential element of the negligence claim itself.”
- As relevant here, that requires four things: the city took on, through promises or actions, an affirmative duty to act for the injured person; its agents knew inaction could lead to harm; there was some direct contact between its agents and that person; and that person justifiably relied on the city’s undertaking.
- Those facts must be alleged specifically. Here, the complaint did not allege an undertaking to send a specific type of ambulance, direct contact with the decedent, or reliance.
- A discovery sanction does not prove the case. It did not stop the City from making legal arguments or pointing to the pleadings.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
People often ask us whether they can sue the City when an ambulance arrives late or without the right equipment. The rule is that when a city sends an ambulance in response to a 911 call, it is performing a governmental function and cannot be held liable unless it owed the injured person a special duty. This is a hard case. The plaintiff alleged that the ambulance had no oxygen for the decedent’s asthma attack. The Second Department dismissed the complaint because it did not allege the facts needed to show a special duty, so no court decided whether the ambulance actually lacked oxygen. In our view, there is a strong argument that once emergency medical technicians arrive and begin treating a patient, a special relationship begins: the patient and the family rely on them, and since they are already there, there is no need to call anyone else to assist. No one else is coming. That is the kind of reliance the special-duty test looks for. Since the complaint here did not allege direct contact with the decedent or reliance, there is no way to know how the court would have decided and whether facts like those would have been enough. In our experience, the details of a 911 call, such as who called, what was said, and what the caller was told, can matter a great deal, and they should be gathered early. We believe two lessons follow. 1. A claim over an emergency response must plead specific facts for each element of a special duty from the start. 2. A discovery sanction is no substitute for proof. In these cases, the first few minutes can decide everything.
Topics
Court: Second Department. Year: 2026. Statutes: CPLR 3211(a); CPLR 5015(a)(1). Result: modified.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 7, 2026. Posted October 8, 2026.
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