New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2001-010-023, Claim No. 100854, Motion Nos. M-62891, CM-63088


Defendant's motion for summary judgment is granted. Claimant fails to meet the two prong test for maintaining a cause of action for negligence resulting in AIDS Phobia.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 14, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on defendant's motion for summary judgment and claimant's cross-motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Cross-Motion and Attorney's Supporting Affirmation and Exhibits.......................2

Attorney's Reply Affirmation and Exhibit...............................................................3

Filed Papers: Claim, Answer

Claim No. 100854 alleges that on May 25 and May 26, 1999, claimant and her husband, an inmate at Sing Sing Correctional Facility, engaged in sexual intercourse under the Family Reunion Program, and that on May 27, 1999, claimant received a letter from the facility informing her that her husband had AIDS. On the basis of receipt of this letter,[1] claimant brings this "AIDS Phobia" claim. Neither claimant, nor her husband, have tested positive for HIV.

Preliminarily, defendant's motion for summary judgment was not filed within this Court's rule of no later than 45 days after the filing of the Note of Issue. However, as of the return date of this motion, the claim had not yet been scheduled for trial; accordingly the Court shall exercise its discretion in addressing both the motion and cross-motion for summary judgment (see, Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778 [not an abuse of discretion for Court to hear summary judgment motion filed beyond Court rule of no later than 60 days after filing of the Note of Issue]).

To establish a claim for AIDS Phobia, claimant must demonstrate: 1) the actual or probable presence of HIV when the alleged transmission occurred and 2) that there was some injury, impact or other plausible mode of transmission whereby HIV contamination could, with reasonable likelihood, enter claimant's bloodstream (Schott v St. Charles Hosp., 250 AD2d 587, 588; Montalbano v Tri-Mac Enterprises of Port Jefferson, 236 AD2d 374, 375). "Requiring proof of actual exposure *** will *** insure that there is a genuine basis for the [claimant's] fear of developing the disease, that the fear is not based on public misconceptions about the disease, and that such claims are treated consistently" (Brown v New York City Health & Hosp. Corp., 225 AD2d 36, 45). "If a [claimant] cannot satisfy either of the foregoing prongs, [her] claim is by definition not genuine, and [her] fear is too irrational, remote, or speculative to sustain [her] cause of action" (Montalbano v Tri-Mac Enterprises of Port Jefferson, supra at 375).

It is undisputed that claimant's husband has never tested positive for HIV antibodies (Claim ¶ 8) and there is no allegation that claimant has tested positive. Thus, claimant was not exposed to the virus during the Family Reunion Program. Accordingly, claimant has failed to meet the two prong test for maintaining a cause of action for negligence resulting in AIDS Phobia and the claim warrants dismissal as a matter of law (see, Schott v St. Charles Hosp., supra at 558 [likelihood of HIV contamination was extremely remote; accordingly claim was not genuine and claimant's fear was too irrational and speculative to sustain her claim absent a positive HIV finding]; Kaufman v Physical Measurements Inc., 207 AD2d 595, 596 [recovery for emotional distress denied as overly speculative and remote in absence of proof of likelihood of contracting AIDS]).

Accordingly, defendant's motion for summary judgment dismissing the claim is GRANTED and claimant's cross-motion is DENIED.

March 14, 2001
White Plains, New York

Judge of the Court of Claims

[1] It is noted that the letter is dated Mary 25, 1995 (Defendant's Ex. E; Claimant's Ex. B).