New York State Court of Claims

New York State Court of Claims

R.M. v. STATE OF NEW YORK, #2002-018-118, Claim No. NONE, Motion No. M-63494


Case Information

R.M., T.S., Individually and T.S., as Mother and Natural Guardian of A.M., an Infant The Court has sua sponte amended the caption to remove the names of movants in order to protect their privacy.
Claimant short name:
Footnote (claimant name) :
The Court has sua sponte amended the caption to remove the names of movants in order to protect their privacy.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: GORDON J. CUFFY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 25, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings this application for late claim relief. Defendant opposes the request. The

Court has considered the following documents in determining the motion:

Notice of Motion............................................................................................1

Affidavit of R.M. in support...........................................................................2

Affidavit of Thomas J. Potter, Esquire, in support, with

Exhibit A attached thereto...................................................................3

Proposed Claim...............................................................................................4

Affirmation of Gordon J. Cuffy, Esquire, Assistant Attorney General

in Opposition with all exhibits attached thereto................................5

Reply Affidavit of Thomas J. Potter, Esquire.................................................6 A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with Section 11 of the Court of Claims Act, before an action asserting a like claim against a citizen of the State would be barred under the provisions of article two of the CPLR. (Court of Claims Act §10(6)) Movant's late claim application is timely. (Court of Claims Act §10(6); CPLR 214(5), 214-a )

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act §10(6), and any other relevant factors. The presence or absence of any one factor is not determinative. (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965) Instead it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

Movant, R. M. asserts three excuses for the failure to timely file and serve a claim. First, he asserts that he was not aware that he was HIV positive until seven months after taking the test at the State University of New York Health Science Center (hereinafter SUNY); second, he did not realize that there was a filing requirement; and third, he was unsure whether a cause of action existed against the hospital. Ignorance of the law is not an acceptable excuse. (Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540) Movant's lack of knowledge that the State had received the test results and failed to timely relay the information is an acceptable excuse. (Compare, Davis v State of New York, 84 Misc 2d 597, rev'd on other grounds 54 AD2d 126) However, even after receiving the results in January, 2001, four months passed before a motion was filed. Movants have no acceptable excuse for this additional delay. Accordingly, the Court finds that this factor weighs against granting the application.

Whether the State had notice, an opportunity to investigate the facts underlying the proposed claim, and whether the State would suffer prejudice if the application was granted, will be considered together. Movants assert that the State had notice of movant, R. M.'s test results as of June 21, 2000, and knew or should have known that the results were not communicated to this movant until January 2001. Movants further assert that no prejudice will result if the application is granted because less than a year has passed since the accrual of the claim, a period of time in which the hospital could be expected to keep records and continuously retain employees, agents, and/or officers. Although reliance on the same misfeasance which gives rise to the claim to establish notice is typically insufficient (Compare, Rosado v State of New York, unpublished decision of McNamara, J., Ct Cl, filed June 22, 1998, Cl No. none, Motion No. M-5721), here defendant has not challenged these assertions; and as a result, the Court will find that these factors weigh in favor of movant. (L.F. O'Connell Assoc. Inc., v State of New York, 176 Misc 2d 697)

Whether the claim appears to be meritorious is the most essential factor. Unlike a party who has timely filed a claim, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious. (See, Nyberg v State of New York, 154 Misc 2d 199) Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record there is cause to believe that a valid cause of action exists. (Santana v New York State Thruway Authority, 92 Misc 2d 1, 11)

The basis for this proposed claim is that movant, R. M. had a test for HIV performed at SUNY on May 29, 2000, prior to his discharge from the hospital following treatment for an abscess. As part of the discharge summary, R. M. was directed to follow up with the treating physician, Dr. Matthews, within one week. Apparently Mr. M. never met with this doctor and never received any notification of the results of the HIV test from the hospital. During this time, Mr. M. continued to have sexual relations with movant, T. S., who was pregnant. Ms. S. has now tested positive for HIV as has the parties' infant, movant, A. M., who was born December 22, 2000. Mr. M. asserts that as a result of not receiving the HIV positive test results until January 2001, he continued to have sexual relations with Ms. S., resulting in both Ms. S. and their infant son testing positive for HIV. He also asserts that he has suffered emotional distress as a consequence.

A cause of action for failure to disclose important health information may sound in medical malpractice or ordinary negligence. (Gilmore v Memorial Sloan Kettering Cancer Center, 159 Misc 2d 953; McKinney v Bellevue Hosp., 183 AD2d 563; Caracci v State of New York, 203 AD2d 842) Where the failure to disclose arises within the context of a physician- patient relationship, a medical malpractice action may exist. (Gilmore v Memorial Sloan Kettering Cancer Center, supra; McKinney v Bellevue Hosp., supra; Caracci v State of New York, supra) Outside the physician-patient relationship, such non-disclosure may be actionable where there is a duty to provide correct information, knowledge that the information is desired for a serious purpose, knowledge that the information or lack thereof will be relied upon, and knowledge that false or erroneous information will cause injury. (Eiseman v State of New York, 70 NY2d 175, 187; McKinney v Bellevue Hosp., supra ) The person relying on the information must have the right to rely on it. (Eiseman v State of New York, supra; McKinney v Bellevue Hosp., supra) In the proposed claim, movants do not suggest that the failure to report the results of the HIV test arose within a physician-patient relationship; the proposed claim asserts an action in ordinary negligence.

Clearly, by taking movant, R. M.'s blood sample for testing, the State had a duty to notify him of the correct results and knew or should have known that the testing results were desired for a serious purpose. There appears to be no reason why the State knew or should have known that its silence would be relied upon as a negative result. Mr. M.'s periodic casual contact, through his employment as a hospital security guard, with the doctors who had previously treated him without the doctors informing him of his HIV status, does not equate with a negative test result or make his reliance reasonable. Unlike in the case of Caracci v State of New York, 203 AD2d 842, relied upon by the movants, the Carracci claimant had no reason to suspect that in her file was an x-ray report indicating further testing was needed of an abnormal mass in her chest. She was not awaiting test results. The Caracci claimant was in effect given a "clean bill of health" after visiting the health center twice for physical examinations. Her reliance on their silence was reasonable. The facts here do not support the same reliance. Mr. M.'s November 11, 2000 visit to the hospital might support his reliance on their continued silence as a negative result, yet there is insufficient information before the Court to find that is a reasonable possibility.

There is also no indication that the State knew that the failure to advise Mr. M. of the test results would cause injury to him. The only injury Mr. M. alleges he suffered is emotional distress derived from learning that Ms. S. and the infant were HIV positive. Rather than a direct injury to him from the State's negligence, his emotional damage was derivative of Ms. S.'s and the infant's injuries. No other damages are alleged.

Where a party suffers physical injury as the result of the negligence of another, it is well established that there can be recovery for both the physical injury and the related mental and emotional suffering proximately caused by the wrongful conduct. (Howard v Lecher, 42 NY2d 109, 111) Emotional injuries may be recoverable without physical injury where the injured party was subjected to the fear of physical injury as a result of the defendant's negligence. (Battalla v State of New York, 10 NY2d 237) Even without fear of potential physical injury, there may be recovery for emotional harm caused directly by the negligence of another as long as the psychic injury was "genuine, substantial and proximately caused by the defendant's conduct." (Howard v Lecher, supra at 111-112; Johnson v State of New York, 37 NY2d 378, 383-384; see also, Topor v State of New York, 176 Misc 2d 177) Historically there was no recovery permitted for emotional injuries suffered as a result of physical injuries sustained by a third party, in effect consequential emotional harm. (Tebbutt v Virostek, 65 NY2d 931; Kennedy v McKesson Co., 58 NY2d 500; Becker v Schwartz, 46 NY2d 401; Vaccaro v Squibb Corp, 52 NY2d 809; Howard v Lecher, supra; Tobin v Grossman, 24 NY2d 609) Beginning with the Court of Appeals decision in Bovsun v Sanperi, 61 NY2d 219, recovery for consequential emotional injuries was allowed where the plaintiff was in the "zone of danger." The "zone of danger" rule provides that

"[w]here a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family - assuming, of course, that it is established that the defendant's conduct was a substantial factor bringing about such injury or death." (Bovsun v Sanperi, supra at 230-231) The facts, as provided in the supporting documents, do not set forth a cause of action for derivative emotional injury or for direct emotional injury. Mr. M. has not shown that there is reasonable cause to believe he has a valid cause of action.

Next, the question arises as to whether the State owed a duty of care to movants, T. S. and A. M., arising from its testing Mr. M. for HIV. Based upon the information before this Court, the State had no such duty. There is no duty of disclosure to third parties unless under the common law there was some reason to know that they were relying on the test results or there is some other statutory obligation. (Compare, Hecht v Kaplan, 221 AD2d 100, 104; Ellis v Peter, 211 AD2d 353, lv dismissed 86 NY2d 885; Rebollal v Payne, 145 AD2d 617; Moreta v New York City Health and Hosp. Corp., 238 AD2d 149; Sorgente v Richmond Memorial Hosp., 142 Misc 2d 870) There is no statutory obligation here. Although, pursuant to Public Health Law §2134 and §2782, Ms. S. was a person who may have also benefitted from prompt notification of the results, her right to independent notification is dependent upon Mr. M. authorizing the release of the test results to her. Without his authorization, the State has no obligation to inform Ms. S. of Mr. M.'s HIV status; and in fact, would be unable to do so without some notice as to Mr. M.'s sexual contacts.[1] There is also no allegation that the State knew or had reason to know that Ms. S. was relying on the test results it was to provide to Mr. M. or that the hospital was advised of Ms. S.'s relationship with Mr. M. or of her pregnancy. Ms. S. and Mr. M. are not married. (Compare, Ellis v Peter, 211 AD2d 353, supra; Sorgente v Richmond Memorial Hosp., 142 Misc 2d 870, supra) Even assuming a duty could be found to exist, there is no allegation from anyone with knowledge of the facts to suggest that Ms. S. and the infant did not contract HIV between March (the month Ms. S. conceived the infant, A.M.) and June 21, 2000 (the date movants claim the test results were received by the defendant), during which time T. S. continued to have unprotected sexual relations with movant, R. M.

As a result of the foregoing, the Court finds that movants have not shown that there is reason to believe that they have a valid claim.

The final factor to be considered is whether movants have any other available remedy. Movants state that they have no other remedy. Based upon the information before the Court, this very well may be the case, and defendant does not dispute this allegation. Thus the Court will find that this factor weighs in favor of movants.

Upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES movants' application without prejudice.

February 25, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Although New York State Sanitary Code (10 NYCRR 2.27) imposes upon an attending physician a duty to notify members of the household of a person infected with a communicable disease upon knowledge of such infection, there is no indication here that a physician was involved in testing or obtaining Mr. M.'s HIV test results, and HIV is not listed as one of the communicable diseases requiring such action on the part of a physician pursuant to 10 NYCRR 2.1.