Lawsuit Against FDNY Over Dispatching Error Reinstated

A NY Supreme Court judge has reinstated a lawsuit against FDNY over a dispatching error that led to a delay in the response to a drowning incident in 2014. The suit had been dismissed in 2016 because the mother of the victim failed to file a notice of claim with the city in a timely manner.

The victim, a four-year-old girl, fell into a backyard swimming pool and was discovered floating unconscious. Her father, an emergency room physician, initiated CPR while others called 911. However, confusion over the correct address led to a delay in the arrival of firefighters, BLS and eventually ALS personnel. The child, identified in the complaint as M.I., suffered brain injuries.

The suit was filed in 2015 in Kings County Supreme Court by the girl’s mother, Fatma Adbelghany. The complaint sought an initial determination that a late notice of claim should be accepted because the city was already on notice of the incident. Attorneys for the city countered that the city would be prejudiced by having to defend itself in light of Adbelghany’s late notice in part because the 911 recordings were no longer available. The court agreed the city would be prejudiced and dismissed the suit in 2016.

Adbelghany asked the court reconsider the timeliness issue after copies of the 911 audio recordings surfaced and confirmed that units were initially dispatched to the wrong location, 2660 East 65th Street instead of 2260 East 65th Street. From the ruling:

  • In the …[original filing], petitioner contended … that respondents, the City of New York and the New York City Fire Department (the City) had actual knowledge because the incident was well documented in the 911 records and the incident directly involved city employees.
  • Similarly, petitioner argued that the City would not be prejudiced because the incident was well documented and as a result, the City retains its ability to investigate.
  • This Court notes that petitioner provided no documents to support these assertions.
  • In opposition, the City argued… that they did not have actual knowledge and that they would be significantly prejudiced by the delay.
  • The City stated that “[w]hile the order to show cause was pending, respondents conducted a cursory investigation into the matter and learned that the audiotape of the initial conversation between the 911 operator and the caller had been deleted, consistent with NYPD protocol on January 25, 2015… It is NYPD policy to delete the audiotape of the 911 call after 180 days”
  • They argued that “[w]ere this application to be granted, respondents would be required to defend a multi-million dollar lawsuit of a brain-damaged infant without the benefit of an early investigation and without access to crucial records such as the 911 audiotape”
  • In support, the City provided a NYPD Sprint Report, an New York City Fire Department (FDNY) Computer Aided Dispatch (CAD) report, the BLS ambulance’s pre-hospital care report and an e911 Police Department request form.
  • The City further provided an affidavit from Janice Olszewski, FDNY deputy assistant chief of emergency medical services, stating that the incident generated no “unusual occurrence reports”.
  • The NYPD Sprint Report shows that the call was initiated at 6:58 p.m.
  • The NYPD Sprint Report and FDNY CAD report show that the location, 2660 East 65th Street, was corrected to 2260 East 65th Street, at 7:14 p.m.
  • After oral argument, this Court denied petitioner’s application.
  • [A]lthough this Court found the application to be timely made and found that petitioner cited a reasonable excuse for the delay, they failed to establish that the City acquired actual knowledge of the essential facts constituting the claim.
  • Petitioner now moves… to renew the motion for leave to file a late notice of claim.
  • Petitioner seeks to renew based upon “newly obtained evidence”, which includes an audio recording of the FDNY portion of the 911 call, as well as audio of multiple calls between the emergency response units from the date of the accident.
  • In the instant case, although the FDNY audio recording is not a “new fact” and was available when the original motion was made, this Court, in its discretion, finds that petitioner offered reasonable justification for their failure to present these facts on the original motion.
  • It is clear that petitioner did not know that any portion of the 911 audio was still available at the time the original motion was made.
  • It is also clear that the petitioner interpreted the City’s representations, made in opposition to the underlying motion, to mean that the entire 911 audio was no longer available, rather than merely the NYPD portion of the audio recording.
  • Frankly, this Court also interpreted the City’s arguments in opposition to the underlying motion to mean that the 911 audio file was unavailable, in its entirety.
  • The City stated, in opposition to the underlying motion, that its office looked for the 911 audio of the initial conversation between the 911 operator and caller, which had been deleted, consistent with NYPD protocol.
  • The City argued that for this reason, they were prejudiced, but never clarified that the FDNY also records the call or that any portion of the tapes remained available.
  • They lamented that, should the application be granted, the City would be required to defend a multi-million-dollar lawsuit “without access to crucial records such as the 911 audiotape”, which only buttressed this Court’s belief that the NYPD was the only recording of the 911 call.
  • It was not until Petitioner’s FOIL request appeal was denied in November 2017 and petitioner consulted with retired EMT dispatcher Frankie Aviles, that it was understood that the FDNY portion of the audio was recorded on a separate system and it had a different retention policy from the NYPD portion.
  • The City confirmed this in their brief dated April 5, 2018, submitted on the appeal of the underlying order.
  • Based on the foregoing, petitioner’s motion to renew based on new facts is granted, with respect to the issues of “actual knowledge” and “substantial prejudice”.

Here is a copy of the decision: Matter of Adbelghany v City of New York_ 2018 N.Y. Misc

The decision includes a transcript of the 911 phone calls. For those who have never listened to 911 recordings, it will give you a sense for the challenges that our dispatchers are confronted with day-in and day-out… with life-and-death consequences that hang in the balance.

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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