Preview
FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
_________________________________________________X
ANDREW OPPENHEIMER, Index No.: 607514/2022
Plaintiff,
AFFIRMATION IN
-against- SUPPORT
NORTH MERRICK FIRE DEPARTMENT, NORTH
MERRICK FIRE DISTRICT, MERRICK FIRE Action #1
DEPARTMENT, BELLMORE FIRE DEPARTMENT,
BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD,
THR NEW YORK STATE VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., NASSAU COUNTY VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., and PAUL WILDERS,
Defendants.
_________________________________________________X
VINU JACOB,
Index No. 607516/2022
Plaintiff,
-against- Action #2
NORTH MERRICK FIRE DEPARTMENT, NORTH
MERRICK FIRE DISTRICT, MERRICK FIRE
DEPARTMENT, BELLMORE FIRE DEPARTMENT,
BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD,
THE NEW YORK STATE VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., NASSAU COUNTY VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., and PAUL WILDERS,
Defendants.
_________________________________________________X
Adam Oustatcher, an attorney duly admitted to practice law before the Courts of the State
of New York affirms, under the penalties of perjury the following:
1. I am associated with the law firm of Hannum Feretic Prendergast & Merlino, LLC,
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attorneys for defendants NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE
DISTRICT, and PAUL WILDERS relative to the above-referenced matters. As such, I am fully
familiar with the facts and circumstances as set forth herein.
2. This affirmation is submitted in support of the within motion of defendants NORTH
MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, and PAUL WILDERS
requesting that this Court allow your moving defendants to amend their Answer to assert the
affirmative defense of New York’s Volunteer Ambulance Workers Benefits Law §19 and, upon
said amendment, grant summary judgment dismissing plaintiffs’ Complaints in their entirety as
against North Merrick Fire Department, North Merrick Fire District, and Paul Wilders.
PRELIMINARY STATEMENT
3. This personal injury lawsuit arises from an accident that allegedly occurred on July
10, 2021 at approximately 1:30 p.m. at the Four Towns Firefighting Training Center, located at
1640 Merrick Road, Merrick, New York, whereby plaintiffs Andrew Oppenheimer and Vinu Jacob
were allegedly injured while working in their respective capacities as volunteer emergency
medical technicians for the North Bellmore Fire District at an event known as the Nassau County
Drill Competition, when a North Merrick Fire Department hose tender truck driven by North
Merrick Fire Department volunteer firefighter Paul Wilders struck the ambulance in which the
plaintiffs were seated.
4. Because plaintiffs were injured while acting in their respective capacities as
volunteer ambulance workers and because the moving defendants were acting under governmental
or statutory authority in furtherance of the duties or activities in relation to which plaintiff’s alleged
injuries occurred, pursuant to New York’s Volunteer Ambulance Workers Benefits Law §19,
Worker’s Compensation is plaintiffs’ sole remedy and plaintiffs are barred from prosecuting the
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subject claims as against your moving defendants.
PROCEDURAL HISTORY
5. On or about July 23, 2021, plaintiff Andrew Oppenheimer served a Notice of Claim
relative to his alleged July 10, 2021 accident, a copy of which is annexed hereto as Exhibit “A”.
6. On or about September 21, 2021, plaintiff Vinu Jacob served a Notice of Claim
relative to his alleged July 10, 2021 accident, a copy of which is annexed hereto as Exhibit “B”.
7. On September 17, 2021, plaintiff Oppenheimer appeared for his General Municipal
Law §50-h hearing. A copy of the transcript to plaintiff Oppenheimer’s General Municipal Law
§50-h hearing transcript is annexed hereto as Exhibit “C”.
8. On December 15, 2021, plaintiff Jacob appeared for his General Municipal Law
§50-h hearing. A copy of the transcript to plaintiff Jacob’s General Municipal Law §50-h hearing
transcript is annexed hereto as Exhibit “D”.
9. On or about June 9, 2022, plaintiff Oppenheimer served his Summons and
Complaint in the instant matter, copies of which are annexed hereto as Exhibit “E”.
10. On or about June 9, 2022, plaintiff Jacob served his Summons and Complaint in
the instant matter, copies of which are annexed hereto as Exhibit “F”.
11. On August 3, 2022, the Town of Hempstead served its Answer in the Oppenheimer
lawsuit, a copy of which is annexed hereto as Exhibit “G”.
12. On August 3, 2022, the Town of Hempstead served its Answer in the Jacob lawsuit,
a copy of which is annexed hereto as Exhibit “H”.
13. On August 16, 2022, the North Merrick Fire Department, North Merrick Fire
District, and Paul Wilders interposed their Answer in the Oppenheimer lawsuit, a copy of which
is annexed hereto as Exhibit “I”.
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14. On August 17, 2022, the North Merrick Fire Department, North Merrick Fire
District, and Paul Wilders interposed their Answer in the Jacob lawsuit, a copy of which is annexed
hereto as Exhibit “J”.
15. On August 25, 2022, the Merrick Fire Protection District s/h/a Merrick Fire
Department, Bellmore Fire Department, and Bellmore Fire District served their Answer in the
Oppenheimer lawsuit, a copy of which is annexed hereto as Exhibit “K”.
16. On August 25, 2022, the Merrick Fire Protection District s/h/a Merrick Fire
Department, Bellmore Fire Department, and Bellmore Fire District served their Answer in the
Jacob lawsuit, a copy of which is annexed hereto as Exhibit “L”.
17. On July 28, 2023, the Honorable Sarika Kapoor So-Ordered the consolidation of
the subject lawsuits, a copy of which is annexed hereto as Exhibit “M”.
18. A copy of plaintiff Oppenheimer’s Bill of Particulars as to your moving defendants
is annexed hereto as Exhibit “N”.
19. A copy of plaintiff Jacob’s Bill of Particulars as against your moving defendants is
annexed hereto as Exhibit “O”.
20. On January 8, 2024, plaintiff Oppenheimer appeared for his deposition, a copy of
the transcript to which is annexed hereto as Exhibit “P”.
21. On January 26, 2022, plaintiff Jacob appeared for his deposition, a copy of the
transcript to which is annexed hereto as Exhibit “Q”.
22. The plaintiffs have not yet filed their Note of Issues.
23. Accordingly, the aspect of this motion seeking summary judgment dismissal of
plaintiffs’ Complaints is proper.
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STATEMENT OF FACTS
24. Both plaintiffs allege that they were working in their respective capacities as
volunteer emergency medical technicians for the North Bellmore Fire District at the Four Towns
Firefighting Training Center during a competition known as the Nassau County Drill Competition,
at the time of their accident. See Exhibit “A”, para. 3; Exhibit “B”, para. 3; Exhibit “N”, para. 5;
Exhibit “O”, para. 5.
25. Both plaintiffs testified at their respective General Municipal Law §50-h hearings
and depositions, that they were inside the rear of a North Bellmore Fire District ambulance acting
in their capacity as volunteer emergency medical technicians for the North Bellmore Fire District
at the Four Towns Firefighting Training Center when an impact occurred causing their alleged
accident and injuries. Exhibit “C”, p. 6-7, 26; Exhibit “D”, p. 4, 22-24; Exhibit “P”, p. 21-22, 62-
70; Exhibit “Q”, p. 22, 38.
26. Attached as Exhibit “R” is the affidavit of Paul Wilders.
27. Mr. Wilders, in his capacity as a member of the North Merrick Fire Department
was operating a vehicle owned by the North Merrick Fire Department at a training event known as
the Nassau County Drill Competition when the subject vehicle impacted the ambulance in which
the plaintiffs were situated. See Exhibit “R”.
LEGAL ARGUMENT
THE MOVING DEFENDANTS SHOULD BE GRANTED LEAVE TO AMEND THEIR
ANSWER TO ASSERT THE AFFIRMATIVE DEFENSE OF NEW YORK’S
VOLUNTEER AMBULANCE WORKERS BENEFITS LAW SECTION 19
28. CPLR 3025(b) sets forth the criteria for supplementing or amending pleadings,
providing as follows:
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“A party may amend his or her pleading, or supplement it by setting
forth additional or subsequent transactions or occurrences, at any
time by leave of court or by stipulation of all parties. Leave shall be
freely given upon such terms as may be just including the granting
of costs and continuances.”
29. Under CPLR 3025(c), leave to amend and supplement a pleading is appropriate
where the amendment is to conform the pleading to the proof, and reads, as follows:
“Amendment to conform the evidence. The court may permit
pleadings to be amended before or after judgment to conform them
to the evidence, upon such terms as may be just including the
granting of costs and continuances.”
30. The Second Department holds that leave to amend a bill of particulars is ordinarily
to be freely given in the absence of prejudice or surprise. Ito v. 324 East 9th Street Corp., 49
AD3d 816 (2d Dept. 2008); Loadhold v. Rams Beer & Soda, Inc., 273 AD2d 446 (2d Dept. 2000).
31. The Town of Hempstead and Merrick Fire Protection District s/h/a Merick Fire
Department, Bellmore Fire Department, and Bellmore Fire District asserted the defense of
Volunteer Benefits Law Section 19 in their respective Answers. See Exhibit “G”, para. 242,
Exhibit “K”, para., 28, Exhibit “H”, para. 242, Exhibit “L”, para. 28.
32. Because there is no element of surprise or prejudice, your moving defendants move
to amend their Answers to assert the affirmative defense of Volunteer Benefits Law §19. CPLR
3025; Ito at 817; Loadhold at 446-47.
SUMMARY JUDGMENT DISMISSAL OF PLAINTIFFS’ COMPLAINT AND ALL
CRO-CLAIMS AS AGAINST THE MOVING DEFENDANTS SHOULD BE GRANTED
BY APPLICATION OF NEW YORK’S VOLUNTEER AMBULANCE WORKERS
BENEFITS LAW SECTION 19
33. New York’s Volunteer Ambulance Workers Benefits Law §19 provides as follows:
“The benefits provided by this chapter shall be the exclusive remedy
of a volunteer ambulance worker, or his spouse, parents,
dependents, next of kin, executor or administrator, or anyone
otherwise entitled to recover damages, at common law or otherwise,
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for or on account of an injury to a volunteer ambulance worker in
line of duty or death resulting from an injury to a volunteer
ambulance worker in line of duty, as against (1) the political
subdivision or volunteer ambulance company liable for the payment
of such benefits, (2) the political subdivision regularly served by the
ambulance company of which the volunteer ambulance worker is a
member, whether or not pursuant to a contract for ambulance
services, even though any such political subdivision is not liable for
the payment of such benefits in the circumstances, and (3) any
person or company acting under governmental or statutory authority
in furtherance of the duties or activities in relation to which any such
injury resulted; provided, however, that the benefits provided by this
chapter shall not be the exclusive remedy as against persons who, in
the furtherance of the same duties or activities, are not similarly
barred from recourse against the volunteer ambulance worker, or his
executor or administrator.”
34. The application of New York’s Volunteer Ambulance Workers Benefits Law §19,
necessitates the following four-step inquiry: (1) is the plaintiff a volunteer ambulance worker, or
his spouse, parents, dependents, next of kin, executor or administrator, or anyone otherwise
entitled to recover damages, at common law or otherwise: (2) did the volunteer ambulance worker
sustain an injury in the line of duty; (3) is the defendant an entity or person recognized by
subsections 1, 2, or 3 of New York’s Volunteer Ambulance Workers Benefits Law Section 19;
and, (4) if the defendant is a person acting under governmental or statutory authority in furtherance
of the duties or activities in relation to which any such injury resulted, is that defendant similarly
barred from recourse against the volunteer ambulance worker, or his executor or administrator.
35. If the answer to each of these questions is “Yes”, the plaintiff is barred from
bringing a personal injury lawsuit against such protected entity or person.
36. The plaintiffs’ pleadings and testimony establish that both plaintiffs were working
in their capacities as volunteer ambulance workers and sustained line of duty injuries. Volunteer
Ambulance Workers' Benefit Law §3(1)(3).
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37. The North Merrick Fire Department and North Merrick Fire District, are fire
districts and fire department acting under governmental or statutory authority in furtherance of
their duties pursuant to New York Town Law §170 and New York Town Law §174(7)(“A fire
district is a political subdivision of the state and a district corporation within the meaning of section
three of the general corporation law”), and Paul Wilders is a volunteer firefighter acting under
governmental or statutory authority in furtherance of his duties as per General Municipal Law
§200, thereby satisfying the third prong of the inquiry.
38. Lastly, if the positions were reversed and the plaintiffs, while working as volunteer
ambulance workers, injured Paul Wilders while he was working as a volunteer firefighter, Paul
Wilders would be barred from seeking recourse against the plaintiffs pursuant to Volunteer
Firefighters' Benefit Law §19, thereby satisfying the fourth prong of the analysis.
39. The Appellate Division, Second Department addressed the application of Volunteer
Ambulance Workers' Benefit Law §19 to a personal injury lawsuit in Ryan v. Town of Riverhead,
117 AD3d 707 (2d Dept. 2014).
40. In Ryan, a vehicle driven by a volunteer emergency medical technician swerved off
the road to avoid a dump truck, colliding with a tree on the side of the road, thereby killing two
other volunteer emergency medical technicians in the rear of the ambulance. Ryan at 708.
41. The lower court granted the summary judgment motion seeking dismissal of the
Complaint by application of Volunteer Ambulance Workers' Benefit Law §19 as against the
volunteer emergency medical technician who was driving the ambulance, but denied the Town of
Riverhead’s motion for summary judgment on the grounds that The Town of Riverhead was not a
political subdivision with the meaning of Volunteer Ambulance Workers' Benefit Law §19,
because the Town of Riverhead’s liability was predicted on the ownership of the subject
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ambulance, not upon the Town of Riverhead’s position as an employer. Ryan v. Town of
Riverhead, 2013 WL 247500 (Sup.Ct., Suffolk Co. 2013).
42. The Second Department reversed the lower court and dismissed plaintiffs’
Complaints as against the Town of Riverhead, holding that: “(plaintiffs’) causes of action as
asserted against the Town are barred by the exclusivity provision of the Volunteer Ambulance
Workers' Benefit Law §19.” Ryan at 709 (internal citation omitted).
43. Because your moving defendants are entitled to the protections of Volunteer
Ambulance Workers' Benefit Law §19, Workers Compensation Benefits are plaintiffs
Oppenheimer and Jacob’s sole and exclusive remedy and plaintiff’s Complaints and all claims
made therein as against North Merrick Fire Department, North Merrick Fire District, and Paul
Wilders must be dismissed. Ryan at 709.
WHEREFORE, it is respectfully requested that the within motion be granted in its entirety
and that an Order be issued dismissing plaintiffs’ Complaint and all causes of action therein as
against North Merrick Fire Department, North Merrick Fire District, and Paul WilderS and for
such other and further relief as the Court deems just, necessary and proper.
DATED: New York, New York
March 1, 2024
Adam Oustatcher__
Adam Oustatcher, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
_________________________________________________X
ANDREW OPPENHEIMER, Index No.: 607514/2022
Plaintiff,
WORD COUNT
-against- CERTIFICATION
NORTH MERRICK FIRE DEPARTMENT, NORTH
MERRICK FIRE DISTRICT, MERRICK FIRE Action #1
DEPARTMENT, BELLMORE FIRE DEPARTMENT,
BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD,
THR NEW YORK STATE VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., NASSAU COUNTY VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., and PAUL WILDERS,
Defendants.
_________________________________________________X
VINU JACOB,
Index No. 607516/2022
Plaintiff,
-against- Action #2
NORTH MERRICK FIRE DEPARTMENT, NORTH
MERRICK FIRE DISTRICT, MERRICK FIRE
DEPARTMENT, BELLMORE FIRE DEPARTMENT,
BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD,
THE NEW YORK STATE VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., NASSAU COUNTY VOLUNTEER FIREMEN’S
PARADE AND DRILL TEAM CAPTAINS ASSOCIATION,
INC., and PAUL WILDERS,
Defendants
_________________________________________________X
STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )
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I, Adam Oustatcher, an attorney duly admitted to practice law before the Courts of the State
of New York, hereby certify, pursuant to 22 NYCRR Section 202.8-b, that:
Defendants NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE
DISTRICT, and PAUL WILDERS’s Affirmation in Support contains 2,297words, excluding the
caption and signature block, in compliance with the word county limit prescribed by 22 NYCRR
§202.8-b.
DATED: New York, New York
March 1, 2024
Adam Oustatcher__
Adam Oustatcher, Esq.
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Preview
FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU _________________________________________________X ANDREW OPPENHEIMER, Index No.: 607514/2022 Plaintiff, AFFIRMATION IN -against- SUPPORT NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, MERRICK FIRE Action #1 DEPARTMENT, BELLMORE FIRE DEPARTMENT, BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD, THR NEW YORK STATE VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., NASSAU COUNTY VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., and PAUL WILDERS, Defendants. _________________________________________________X VINU JACOB, Index No. 607516/2022 Plaintiff, -against- Action #2 NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, MERRICK FIRE DEPARTMENT, BELLMORE FIRE DEPARTMENT, BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD, THE NEW YORK STATE VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., NASSAU COUNTY VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., and PAUL WILDERS, Defendants. _________________________________________________X Adam Oustatcher, an attorney duly admitted to practice law before the Courts of the State of New York affirms, under the penalties of perjury the following: 1. I am associated with the law firm of Hannum Feretic Prendergast & Merlino, LLC, 1 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 attorneys for defendants NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, and PAUL WILDERS relative to the above-referenced matters. As such, I am fully familiar with the facts and circumstances as set forth herein. 2. This affirmation is submitted in support of the within motion of defendants NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, and PAUL WILDERS requesting that this Court allow your moving defendants to amend their Answer to assert the affirmative defense of New York’s Volunteer Ambulance Workers Benefits Law §19 and, upon said amendment, grant summary judgment dismissing plaintiffs’ Complaints in their entirety as against North Merrick Fire Department, North Merrick Fire District, and Paul Wilders. PRELIMINARY STATEMENT 3. This personal injury lawsuit arises from an accident that allegedly occurred on July 10, 2021 at approximately 1:30 p.m. at the Four Towns Firefighting Training Center, located at 1640 Merrick Road, Merrick, New York, whereby plaintiffs Andrew Oppenheimer and Vinu Jacob were allegedly injured while working in their respective capacities as volunteer emergency medical technicians for the North Bellmore Fire District at an event known as the Nassau County Drill Competition, when a North Merrick Fire Department hose tender truck driven by North Merrick Fire Department volunteer firefighter Paul Wilders struck the ambulance in which the plaintiffs were seated. 4. Because plaintiffs were injured while acting in their respective capacities as volunteer ambulance workers and because the moving defendants were acting under governmental or statutory authority in furtherance of the duties or activities in relation to which plaintiff’s alleged injuries occurred, pursuant to New York’s Volunteer Ambulance Workers Benefits Law §19, Worker’s Compensation is plaintiffs’ sole remedy and plaintiffs are barred from prosecuting the 2 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 subject claims as against your moving defendants. PROCEDURAL HISTORY 5. On or about July 23, 2021, plaintiff Andrew Oppenheimer served a Notice of Claim relative to his alleged July 10, 2021 accident, a copy of which is annexed hereto as Exhibit “A”. 6. On or about September 21, 2021, plaintiff Vinu Jacob served a Notice of Claim relative to his alleged July 10, 2021 accident, a copy of which is annexed hereto as Exhibit “B”. 7. On September 17, 2021, plaintiff Oppenheimer appeared for his General Municipal Law §50-h hearing. A copy of the transcript to plaintiff Oppenheimer’s General Municipal Law §50-h hearing transcript is annexed hereto as Exhibit “C”. 8. On December 15, 2021, plaintiff Jacob appeared for his General Municipal Law §50-h hearing. A copy of the transcript to plaintiff Jacob’s General Municipal Law §50-h hearing transcript is annexed hereto as Exhibit “D”. 9. On or about June 9, 2022, plaintiff Oppenheimer served his Summons and Complaint in the instant matter, copies of which are annexed hereto as Exhibit “E”. 10. On or about June 9, 2022, plaintiff Jacob served his Summons and Complaint in the instant matter, copies of which are annexed hereto as Exhibit “F”. 11. On August 3, 2022, the Town of Hempstead served its Answer in the Oppenheimer lawsuit, a copy of which is annexed hereto as Exhibit “G”. 12. On August 3, 2022, the Town of Hempstead served its Answer in the Jacob lawsuit, a copy of which is annexed hereto as Exhibit “H”. 13. On August 16, 2022, the North Merrick Fire Department, North Merrick Fire District, and Paul Wilders interposed their Answer in the Oppenheimer lawsuit, a copy of which is annexed hereto as Exhibit “I”. 3 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 14. On August 17, 2022, the North Merrick Fire Department, North Merrick Fire District, and Paul Wilders interposed their Answer in the Jacob lawsuit, a copy of which is annexed hereto as Exhibit “J”. 15. On August 25, 2022, the Merrick Fire Protection District s/h/a Merrick Fire Department, Bellmore Fire Department, and Bellmore Fire District served their Answer in the Oppenheimer lawsuit, a copy of which is annexed hereto as Exhibit “K”. 16. On August 25, 2022, the Merrick Fire Protection District s/h/a Merrick Fire Department, Bellmore Fire Department, and Bellmore Fire District served their Answer in the Jacob lawsuit, a copy of which is annexed hereto as Exhibit “L”. 17. On July 28, 2023, the Honorable Sarika Kapoor So-Ordered the consolidation of the subject lawsuits, a copy of which is annexed hereto as Exhibit “M”. 18. A copy of plaintiff Oppenheimer’s Bill of Particulars as to your moving defendants is annexed hereto as Exhibit “N”. 19. A copy of plaintiff Jacob’s Bill of Particulars as against your moving defendants is annexed hereto as Exhibit “O”. 20. On January 8, 2024, plaintiff Oppenheimer appeared for his deposition, a copy of the transcript to which is annexed hereto as Exhibit “P”. 21. On January 26, 2022, plaintiff Jacob appeared for his deposition, a copy of the transcript to which is annexed hereto as Exhibit “Q”. 22. The plaintiffs have not yet filed their Note of Issues. 23. Accordingly, the aspect of this motion seeking summary judgment dismissal of plaintiffs’ Complaints is proper. 4 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 STATEMENT OF FACTS 24. Both plaintiffs allege that they were working in their respective capacities as volunteer emergency medical technicians for the North Bellmore Fire District at the Four Towns Firefighting Training Center during a competition known as the Nassau County Drill Competition, at the time of their accident. See Exhibit “A”, para. 3; Exhibit “B”, para. 3; Exhibit “N”, para. 5; Exhibit “O”, para. 5. 25. Both plaintiffs testified at their respective General Municipal Law §50-h hearings and depositions, that they were inside the rear of a North Bellmore Fire District ambulance acting in their capacity as volunteer emergency medical technicians for the North Bellmore Fire District at the Four Towns Firefighting Training Center when an impact occurred causing their alleged accident and injuries. Exhibit “C”, p. 6-7, 26; Exhibit “D”, p. 4, 22-24; Exhibit “P”, p. 21-22, 62- 70; Exhibit “Q”, p. 22, 38. 26. Attached as Exhibit “R” is the affidavit of Paul Wilders. 27. Mr. Wilders, in his capacity as a member of the North Merrick Fire Department was operating a vehicle owned by the North Merrick Fire Department at a training event known as the Nassau County Drill Competition when the subject vehicle impacted the ambulance in which the plaintiffs were situated. See Exhibit “R”. LEGAL ARGUMENT THE MOVING DEFENDANTS SHOULD BE GRANTED LEAVE TO AMEND THEIR ANSWER TO ASSERT THE AFFIRMATIVE DEFENSE OF NEW YORK’S VOLUNTEER AMBULANCE WORKERS BENEFITS LAW SECTION 19 28. CPLR 3025(b) sets forth the criteria for supplementing or amending pleadings, providing as follows: 5 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.” 29. Under CPLR 3025(c), leave to amend and supplement a pleading is appropriate where the amendment is to conform the pleading to the proof, and reads, as follows: “Amendment to conform the evidence. The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances.” 30. The Second Department holds that leave to amend a bill of particulars is ordinarily to be freely given in the absence of prejudice or surprise. Ito v. 324 East 9th Street Corp., 49 AD3d 816 (2d Dept. 2008); Loadhold v. Rams Beer & Soda, Inc., 273 AD2d 446 (2d Dept. 2000). 31. The Town of Hempstead and Merrick Fire Protection District s/h/a Merick Fire Department, Bellmore Fire Department, and Bellmore Fire District asserted the defense of Volunteer Benefits Law Section 19 in their respective Answers. See Exhibit “G”, para. 242, Exhibit “K”, para., 28, Exhibit “H”, para. 242, Exhibit “L”, para. 28. 32. Because there is no element of surprise or prejudice, your moving defendants move to amend their Answers to assert the affirmative defense of Volunteer Benefits Law §19. CPLR 3025; Ito at 817; Loadhold at 446-47. SUMMARY JUDGMENT DISMISSAL OF PLAINTIFFS’ COMPLAINT AND ALL CRO-CLAIMS AS AGAINST THE MOVING DEFENDANTS SHOULD BE GRANTED BY APPLICATION OF NEW YORK’S VOLUNTEER AMBULANCE WORKERS BENEFITS LAW SECTION 19 33. New York’s Volunteer Ambulance Workers Benefits Law §19 provides as follows: “The benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker, or his spouse, parents, dependents, next of kin, executor or administrator, or anyone otherwise entitled to recover damages, at common law or otherwise, 6 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 for or on account of an injury to a volunteer ambulance worker in line of duty or death resulting from an injury to a volunteer ambulance worker in line of duty, as against (1) the political subdivision or volunteer ambulance company liable for the payment of such benefits, (2) the political subdivision regularly served by the ambulance company of which the volunteer ambulance worker is a member, whether or not pursuant to a contract for ambulance services, even though any such political subdivision is not liable for the payment of such benefits in the circumstances, and (3) any person or company acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted; provided, however, that the benefits provided by this chapter shall not be the exclusive remedy as against persons who, in the furtherance of the same duties or activities, are not similarly barred from recourse against the volunteer ambulance worker, or his executor or administrator.” 34. The application of New York’s Volunteer Ambulance Workers Benefits Law §19, necessitates the following four-step inquiry: (1) is the plaintiff a volunteer ambulance worker, or his spouse, parents, dependents, next of kin, executor or administrator, or anyone otherwise entitled to recover damages, at common law or otherwise: (2) did the volunteer ambulance worker sustain an injury in the line of duty; (3) is the defendant an entity or person recognized by subsections 1, 2, or 3 of New York’s Volunteer Ambulance Workers Benefits Law Section 19; and, (4) if the defendant is a person acting under governmental or statutory authority in furtherance of the duties or activities in relation to which any such injury resulted, is that defendant similarly barred from recourse against the volunteer ambulance worker, or his executor or administrator. 35. If the answer to each of these questions is “Yes”, the plaintiff is barred from bringing a personal injury lawsuit against such protected entity or person. 36. The plaintiffs’ pleadings and testimony establish that both plaintiffs were working in their capacities as volunteer ambulance workers and sustained line of duty injuries. Volunteer Ambulance Workers' Benefit Law §3(1)(3). 7 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 37. The North Merrick Fire Department and North Merrick Fire District, are fire districts and fire department acting under governmental or statutory authority in furtherance of their duties pursuant to New York Town Law §170 and New York Town Law §174(7)(“A fire district is a political subdivision of the state and a district corporation within the meaning of section three of the general corporation law”), and Paul Wilders is a volunteer firefighter acting under governmental or statutory authority in furtherance of his duties as per General Municipal Law §200, thereby satisfying the third prong of the inquiry. 38. Lastly, if the positions were reversed and the plaintiffs, while working as volunteer ambulance workers, injured Paul Wilders while he was working as a volunteer firefighter, Paul Wilders would be barred from seeking recourse against the plaintiffs pursuant to Volunteer Firefighters' Benefit Law §19, thereby satisfying the fourth prong of the analysis. 39. The Appellate Division, Second Department addressed the application of Volunteer Ambulance Workers' Benefit Law §19 to a personal injury lawsuit in Ryan v. Town of Riverhead, 117 AD3d 707 (2d Dept. 2014). 40. In Ryan, a vehicle driven by a volunteer emergency medical technician swerved off the road to avoid a dump truck, colliding with a tree on the side of the road, thereby killing two other volunteer emergency medical technicians in the rear of the ambulance. Ryan at 708. 41. The lower court granted the summary judgment motion seeking dismissal of the Complaint by application of Volunteer Ambulance Workers' Benefit Law §19 as against the volunteer emergency medical technician who was driving the ambulance, but denied the Town of Riverhead’s motion for summary judgment on the grounds that The Town of Riverhead was not a political subdivision with the meaning of Volunteer Ambulance Workers' Benefit Law §19, because the Town of Riverhead’s liability was predicted on the ownership of the subject 8 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 ambulance, not upon the Town of Riverhead’s position as an employer. Ryan v. Town of Riverhead, 2013 WL 247500 (Sup.Ct., Suffolk Co. 2013). 42. The Second Department reversed the lower court and dismissed plaintiffs’ Complaints as against the Town of Riverhead, holding that: “(plaintiffs’) causes of action as asserted against the Town are barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19.” Ryan at 709 (internal citation omitted). 43. Because your moving defendants are entitled to the protections of Volunteer Ambulance Workers' Benefit Law §19, Workers Compensation Benefits are plaintiffs Oppenheimer and Jacob’s sole and exclusive remedy and plaintiff’s Complaints and all claims made therein as against North Merrick Fire Department, North Merrick Fire District, and Paul Wilders must be dismissed. Ryan at 709. WHEREFORE, it is respectfully requested that the within motion be granted in its entirety and that an Order be issued dismissing plaintiffs’ Complaint and all causes of action therein as against North Merrick Fire Department, North Merrick Fire District, and Paul WilderS and for such other and further relief as the Court deems just, necessary and proper. DATED: New York, New York March 1, 2024 Adam Oustatcher__ Adam Oustatcher, Esq. 9 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU _________________________________________________X ANDREW OPPENHEIMER, Index No.: 607514/2022 Plaintiff, WORD COUNT -against- CERTIFICATION NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, MERRICK FIRE Action #1 DEPARTMENT, BELLMORE FIRE DEPARTMENT, BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD, THR NEW YORK STATE VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., NASSAU COUNTY VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., and PAUL WILDERS, Defendants. _________________________________________________X VINU JACOB, Index No. 607516/2022 Plaintiff, -against- Action #2 NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, MERRICK FIRE DEPARTMENT, BELLMORE FIRE DEPARTMENT, BELLMORE FIRE DISTRICT, TOWN OF HEMPSTEAD, THE NEW YORK STATE VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., NASSAU COUNTY VOLUNTEER FIREMEN’S PARADE AND DRILL TEAM CAPTAINS ASSOCIATION, INC., and PAUL WILDERS, Defendants _________________________________________________X STATE OF NEW YORK ) ) ss: COUNTY OF NASSAU ) 10 of 11 FILED: NASSAU COUNTY CLERK 03/01/2024 06:05 PM INDEX NO. 607514/2022 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 03/01/2024 I, Adam Oustatcher, an attorney duly admitted to practice law before the Courts of the State of New York, hereby certify, pursuant to 22 NYCRR Section 202.8-b, that: Defendants NORTH MERRICK FIRE DEPARTMENT, NORTH MERRICK FIRE DISTRICT, and PAUL WILDERS’s Affirmation in Support contains 2,297words, excluding the caption and signature block, in compliance with the word county limit prescribed by 22 NYCRR §202.8-b. DATED: New York, New York March 1, 2024 Adam Oustatcher__ Adam Oustatcher, Esq. 11 of 11