New York State Court of Claims

New York State Court of Claims

FUSCO v. STATE OF NEW YORK, #2002-031-029, Claim No. 104572, Motion No. M-64943


Establishing fund for future medical monitoring of Claimants requires further discovery and expert scientific and medical proof linking alleged exposure to toxic material and alleged injuries. Defendant's motion denied in part and granted in part.

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:
New York State Attorney General
Third-party defendant's attorney:

Signature date:
August 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Defendant:
1. Defendant's Notice of Motion, filed March 25, 2002;
2. Affidavit of Kathleen A. Burr, Esq., sworn to March 22, 2002, with attached exhibits;
3. Defendant's memorandum of law, dated March 22, 2002;
4. Affidavit of Paul J. Hirsch, Esq., sworn to April 9, 2002, with attached exhibit;

5. Claimants' memorandum of law, dated April 9, 2002, with attached exhibit;

6. Affidavit of Kathleen A. Burr, Esq., sworn to April 16, 2002, with attached exhibit;
7. Defendant's memorandum of law, dated April 16, 2002. Upon the foregoing papers and upon oral argument from counsel in this matter, the motion is granted in part and denied in part.

The Claim in this matter alleges negligence, nuisance, and trespass against the State in connection with the State Department of Environmental Conservation's oversight of the environmental remediation of a designated Superfund site. The site, the former Van Der Horst chrome-plating plant, is located in the city of Olean, New York. Claimants, who all reside in close proximity to the plant, allege injuries resulting from exposure to airborne substances created by remediation activities which occurred in 1999. It should be noted that this was the second phase of remediation at the site, the first having occurred in 1996. Claimants allege that Defendant or its agents negligently caused, among other things, chromium dust to be dispersed throughout the neighborhood, resulting in a myriad of negative manifestations ranging from declining property values to actual physical injuries allegedly incurred by Claimants.

This motion, which was well briefed and well argued by each side, involved only that portion of the claim in which the Claimants requested that, as part of damages against the State, the Court direct that a fund be established to monitor the future medical needs of each Claimant. Defendant seeks dismissal of the portion of the claim relating to medical monitoring. Defendant's initial position was to urge the Court to dismiss this portion of the claim, as the claim (except as to only one of the many Claimants) does not contain any allegations that there have been actual physical injuries sustained as a result of the alleged exposure. Without such physical injury, Defendant argues that New York law does not permit a medical monitoring fund to be established. Defendant argues in the alternative that, in any event, Claimants must permit discovery of their medical records if the establishment of such a fund is to remain an issue. Defendant requests that Claimants be compelled to provide medical authorizations permitting Defendant to obtain ten years of medical history for each Claimant.

As to this alternative relief, Claimants' counsel concedes that Claimants must permit Defendant to inquire into Claimants' medical histories and has agreed to provide the requested authorizations. With regard to the fund, however, Claimants' counsel points out that Claimants have alleged, in their recently served Bills of Particulars, various physical manifestations caused by their exposure to toxins from the negligently performed and supervised remediation. Counsel argues that, since these injuries have been alleged, it would be premature at this juncture to determine that Claimants will not be able to meet their admittedly heavy burden in demonstrating that the fund should be established. Claimants' counsel also argues that, procedurally, a motion of this nature is not appropriate, as the request for the fund is not a cause of action in itself but rather a species of damages. Claimants assert that the justification for such damages is a matter which must be demonstrated through expert testimony at trial.

Both counsel artfully presented the current state of the law in New York and set forth their respective positions as to whether this State requires the existence of a present injury resulting from the alleged toxic exposure before a court can consider the establishment of a medical monitoring fund. However, Defendant's counsel conceded at oral argument that the injuries alleged in the Bills of Particulars remove this issue from my consideration. The Claimants have alleged present physical injuries related to the toxic exposure. Further discovery, as well as expert input, is required before it can be determined whether or not the alleged injuries are causally related to the alleged exposure. For this reason, and upon the request of both counsel, it is hereby:

ORDERED, that Defendant's motion for dismissal of that portion of the Claim relating to the establishment of a fund to monitor the future medical needs of each Claimant is denied without prejudice to renew; and it is further

ORDERED, that Defendant's motion to compel Claimants to provide medical authorizations is granted. Claimants' counsel shall, within six weeks of the filed date of this order, provide Defendant's counsel with medical authorizations from each Claimant permitting disclosure of medical records from January 1, 1992 to date.

August 8, 2002
Rochester, New York

Judge of the Court of Claims