New York State Court of Claims

New York State Court of Claims

FERRARI v. THE STATE OF NEW YORK, #2002-028-011, Claim No. 104107, Motion No. M-64278


Claim dismissed. Claimant consented by expressly & by operation of statute to for obtaining DNA sample for DNA Index Law therefore no claim for battery. Claim does not lie for negligent assault. Claimant is not entitled to choose method by which sample is obtained.

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):

Claimant's attorney:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2), (4), (5) and (7):

1) Notice of Motion and Affirmation of Assistant Attorney General Kathleen M. Resnick (Resnick Affirmation) filed November 9, 2001 with annexed Exhibits A-D;

2) Affidavit in Opposition of Raymond Ferrari (Ferrari Affidavit) filed

December 3, 2001.

Filed Papers: Claim, Verified Answer.

On April 10, 2001 Claimant filed the instant claim which sets forth ten causes of action[1] each flowing from the Defendant's attempts to obtain a DNA sample from Claimant and/or the collection of that sample pursuant to New York's DNA Index Law (Executive Law Article 49-B). At the time of the events alleged in the Claim, Claimant was at all times in the care and custody of the New York State Department of Correctional Services (DOCS).

The underlying facts are fairly straightforward. In 1994, the State of New York enacted the Commission on Forensic Science and Establishment of DNA Identification Index Law (Laws of 1994, ch.737; [DNA Index Law]), which authorized the creation of a DNA database of "designated offenders" convicted of murder, incest and other sex offenses ( DNA Index Law, § 995[7]). In 1999, the New York State Legislature expanded the definition of "designated offenders" to include attempted murder, kidnaping, arson, burglary and other violent felony offenses, as well as certain drug and larceny offenses and expanded its scope to require "designated offenders" incarcerated prior to the passage of the DNA Index Law who were still imprisoned to provide a DNA sample (DNA Index Law, § 995 [7]; see, Kellogg v. Travis, 188 Misc 2d 164 [rejecting claim that amendments were ex post facto laws]) . In an apparent preemptive strike, claimant filed an Inmate Grievance in November 1999 challenging the amendments to the DNA Index Law which would now require Claimant to provide a DNA sample (see, Resnick Affirmation, Exhibit A). The grievance was denied. Thereafter, on March 7, 2000, Claimant was given a direct order to submit a blood sample, which claimant refused, resulting in a misbehavior report being issued on March 8, 2000. At his Tier II disciplinary hearing, Claimant was found guilty of refusing a direct order and a penalty of thirty (30) days keeplock, together with loss of certain privileges was imposed; provided however, if Claimant provided the DNA sample the penalty was to be immediately terminated.[2] Before the expiration of his thirty day penalty, Claimant was transferred to Great Meadow Correctional Facility, where, on April 17, 2000 he was counseled regarding compliance with the DNA Index Law, at which time, Claimant advised the counselor he had filed a petition in Supreme Court[3] and that if " the Court did not grant a TRO by that date [April 29, 2000] I would surrender my blood" (Claim, ¶ 17; see also, Claim, ¶ 19 [making the same representation, in writing, to the Director of Security at Great Meadow CF] ). On April 20, 2000, Claimant was again advised of DOCS progressive discipline policy and under "threat of force and penalties" (Claim, ¶23), Claimant's blood was drawn for a DNA sample. This Claim ensued.

On this motion, the Court will construe the pleading liberally, accept the facts alleged as true (Carp v Marcus, 112 AD2d 546) and accord the Claimant the benefit of all favorable inferences which may be drawn from the pleading (see, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318). "The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

The Court will begin by addressing Defendant's argument that the instant claim should be dismissed pursuant to CPLR 3211(a)(4) because there is pending an appeal of the dismissal of Claimant's CPLR Article 78 proceeding (In the Matter of Ferrari v Goord, [SCt, Greene County], Index No. 00-282). Courts enjoy broad discretion when considering an application pursuant to CPLR 3211(a)(4) to dismiss an action or proceeding on the ground that another action or proceeding is pending between the same parties on the same cause of action (see, Whitney v Whitney, 57 NY2d 731, 732; see also, Brooklyn Union Gas Co. v State Board of Real Property Services, 246 AD2d 898). Where the legal theories are different, but the facts and relief sought are the same dismissal pursuant to 3211 is appropriate (Schaller v Vacco, 241 AD2d 663, 664). Defendant has appended the Petition and Decision (Resnick Affirmation, Exhibits A and B, respectively) which the Court has carefully reviewed. Although both actions spring from the same set of facts, Claimant is seeking money damages in this court for the manner in which his DNA sample allegedly was extracted (Ferrari Affidavit, ¶ 8[a] ), while he pursues injunctive and declaratory relief in Supreme Court (see, Resnick Affirmation, Exhibit A, ¶¶ 27 and 28 [enjoining DOCS from collecting a DNA sample] and ¶ 29 [declaring the DNA Indexing Law unconstitutional]). Therefore, the Court declines to dismiss the Claim pursuant to CPLR 3211(a)(4).

Before moving to address each cause of action, the Court will summarize the findings of the Supreme Court which resulted in the dismissal of Claimant's Article 78 proceeding. The Hon. John G. Connor held that the DNA Index Law in all respects was constitutional and did not constitute an ex post facto law. Moreover, the Court declined to disturb the imposition of discipline holding that Claimant admitted he refused the direct order when he refused to provide a DNA sample (Resnick Affirmation, Exhibit B, p.3)[4].

Claimant's causes of action alleging violations of the United States Constitution and the New York State Constitution (denominated as "FIFTH," "SIXTH," "SEVENTH," "EIGHTH," "NINTH," and "TENTH" in the Claim) must be dismissed. It is well established that claims alleging violations of an individual's rights under the United States Constitution are not subject to adjudication in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184; Zagarella v State of New York, 149 AD2d 503; Ferrer v State of New York, 172 Misc 2d 1, 5). Similarly, while the Court of Appeals has recognized a cause of action for constitutional tort in Brown v State of New York (89 NY2d 172, supra), such a remedy is not available for every alleged violation of the State Constitution. Rather, such a "narrow remedy" (id., at 192) may be implied if needed to ensure the particular constitutional provision's effectiveness and further its purpose (id., at 187). Inasmuch as the Claimant has availed himself, albeit unsuccessfully, of the Article 78 proceeding, and because of the existence of other remedies, the Court does not imply causes of action for alleged State Constitution violations (see, Martinez v City of Schenectady, 276 AD2d 993 affd 97 NY2d 78, 2001[confirming the "narrow remedy" established in Brown v State of New York (89 NY2d 172, supra); see also, Remley v State of New York, 174 Misc 2d 523; Zulu v State of New York, 2001 WL 880833 [NY Ct Cl], Patti, J. ).

Claimant also attempts to allege a cause of action for negligent assault. However, "there is, properly speaking, no such thing as a negligent assault" (Prosser & Keeton, Torts § 10, at 46 [5th ed]). New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently (Trott v. Merit Dept. Store, 106 AD2d 158, 160; Mazzaferro v Albany Motel Enterprises, Inc., 127 AD2d 374, 376; Sanchez by Hernandez v Wallkill Central School District, 221 AD2d 857; Wertzberger v City of New York, 254 AD2d 352). Accordingly, this cause of action is dismissed.

Claimant alleges, without any specificity, a violation of his doctor-patient confidentiality (Claim, ¶ 38). The Court can only presume the violation stems from the use of Claimant's DNA sample in accordance with the statute[5]. Assuming arguendo the existence of a physician -patient relationship, the unauthorized disclosure of certain medical information may, in certain circumstances, give rise to a viable cause of action, but a cause of action does not necessarily exist for "[b]reach of privacy or of confidentiality, absent allegations of a physician's culpable conduct in the purported improper access to medical records or disclosure thereof [citations omitted] "(Matter of V. v State of New York, 150 Misc 2d 156, 159). In order to be considered wrongful, and thus actionable, the disclosure must be without legal justification or excuse (MacDonald v Clinger, 84 AD2d 482, 487). In Rea v Pardo, 132 AD2d 442, the Court, in upholding the release of medical records by a doctor to his malpractice insurer in anticipation of a malpractice lawsuit, noted the law is replete with justifications for disclosure which are deemed to outweigh the patient's right of confidentiality (Id., at 445, 446 [contagion, incidences of cancer, child abuse, gunshot or stab wounds and burns, inter alia]). Accordingly, the DNA Index Law, which has passed constitutional muster (see, Kellogg v Travis, 188 Misc.2d 164; Yusov v Martinez, 2000 WL 1593387 [SDNY], Buchwald, J.), would provide legal justification for the release contemplated herein, thereby defeating the cause of action.

More to the point, and as Defendant correctly argues, there is no physician-patient relationship present upon which to base this cause of action. The physician-patient relationship is created when professional services are rendered and accepted for purposes of medical treatment (see, Miller v. Sullivan, 214 AD2d 822, see also, 84 NYJur 2d, Physicians, Surgeons, and Other Healers, § 134, at 93). There is, on this record, no set of facts which Claimant could prove which would establish his blood draw was for medical treatment.

Claimant alleges that his disciplinary confinement constitutes false imprisonment based upon a wrongful finding of guilt. To establish this cause of action, a claimant must show, inter alia, that the confinement was not otherwise privileged (see, Broughton v State of New York, 37 NY2d 451). Defendant argues that the confinement was privileged as it was the result of a proper disciplinary proceeding (Resnick Affirmation, ¶16). Defendant's argument finds support in Claimant's failure to allege any impropriety in the disciplinary process other than the finding of guilt, (see, Arteaga v State of New York, 72 NY2d 212, [immunity attaches when correction officials act entirely within their authority and in compliance with the applicable rules and regulations]), and in Claimant's unsuccessful effort to overturn his conviction in Supreme Court.[6] On this record, Claimant will not be permitted to relitigate the disciplinary hearing in this Court.

Claimant asserts he was assaulted when "a hypodermic needle penetrated claimant's skin and vein" (Claim, ¶30). The pleading does not assert excessive force was used to obtain his compliance but rather a fair reading of the Claim convinces the Court that the next step in the disciplinary process, and its attendant consequences (see, Resnick Affirmation, Exhibit D), were the threats and force to which Claimant was subjected. Notwithstanding Claimant's use of the word seized to describe how his DNA sample was drawn[7], the pleading fails to allege that the blood draw was nonconsensual. Defendant argues that an assault could not occur because DOCS personnel were acting in the discharge of public duty and DOCS personnel are permitted to take actions reasonably necessary to secure submission by an inmate (Resnick Affirmation, ¶14). The facts alleged, in the Court's view, are more akin to the intentional tort of battery which is the intentional physical contact with another person without that person's consent (Coopersmith v Gold, 172 AD2d 982; Mason v Cohn, 108 Misc 2d 674; PJI 3:3). Consent, whether express, implied in fact or implied in law, is a complete defense, Van Vooren v Cook, 273 App Div 88, 92. Turning to the blood draw on April 20, 2000, the pleading discloses that consent was obtained expressly, albeit reluctantly, from the Claimant (Claim, ¶¶ 2 and 4). This express consent is confirmed in Claimant's submissions to the Supreme Court and on which both parties rely (see, Resnick Affirmation, Exhibit A - "cuased [sic] me to allow my blood to be seized" [Supplemental Petition]; "if I refused" [Notice of Motion]; and "if I did not give blood today... - a Tier III ticket would be issued" [Ferrari Affidavit in Support of Motion]). In the Court's view, consent was also obtained by operation of Executive Law § 995-c(3) which requires a designated offender, such as Claimant to provide a DNA sample. Accordingly, Claimant can not prove at least one essential element of the tort alleged.

For the foregoing reasons, Defendant's motion to dismiss the Claim in its entirety is GRANTED and Claim Number 104107 shall be and hereby is dismissed in its entirety.

March 1, 2002
Albany, New York

Judge of the Court of Claims

[1] The ten causes of action are for assault, negligent assault, false imprisonment, violation of doctor-patient confidentiality, and the following Constitutional violations - search and seizure, right against self-incrimination, right to counsel, right against cruel and unusual punishment, due process and equal protection.
[2] DOCS has a directive/policy that provides for progressive discipline designed to educate and cajole inmates into providing the required DNA sample. Following the initial thirty day confinement, the next refusal warrants 365 days in SHU and loss of privileges for 12 months, provided, however that subsequent compliance terminates the penalty. Ultimately, DOCS is authorized to use force to obtain the DNA sample (see, Resnick Affirmation, Exhibit D).
[3] Claimant commenced an Article 78 proceeding challenging the constitutionality of the DNA Index Law and the discipline meted out to him for refusing a direct order (see, infra).
[4] Claimant's argument that he was only refusing a blood sample and that he would have provided a hair or saliva sample is without merit as a defense (see, In the Matter of Lunney v Goord, _AD2d_, 736 NYS2d 718 [statute which mandated that prisoners provide samples "appropriate for DNA testing" did not give inmate option to dictate type of sample to be taken, and therefore prison staff had authority to require a blood sample]).
[5] The DNA Index Law does contain a confidentiality provision (Executive Law § 995-d), but no allegation is made that its provisions were violated.
[6] As a general rule, an inmate is not entitled to recover damages for wrongful confinements imposed as the result of a disciplinary proceeding, even when it results in a conviction that is ultimately overturned (Melette v State of New York, 163 AD2d 703).
[7] Claimant also stated he surrendered his blood (Claim, ¶ 4).