New York State Court of Claims

New York State Court of Claims

T. S. v. STATE OF NEW YORK, #2003-018-211, Claim No. NONE, Motion No. M-65294


Late claim application denied after balancing all factors in Court of Claims Act §10 (6) .

Case Information

T. S. The Court has sua sponte amended the caption to protect the rights of the individual involved.
Claimant short name:
T. S.
Footnote (claimant name) :
The Court has sua sponte amended the caption to protect the rights of the individual involved.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
DelDUCHETTO & POTTER, LLPBy: Ernest DelDuchetto, Esquire
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:
April 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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

Movant brought a prior motion seeking late claim relief individually and on behalf of her infant son, along with the infant's father (hereinafter Mr. M.....[.]), which was denied without prejudice......[.] The supporting documents submitted with that application were provided solely by Mr. M. and the Court did not hear directly from this movant.

The proposed claim seeks damages for ordinary negligence and medical malpractice,eeee[e]

asserts that the State failed to inform Mr. M. of the results of a human immunodeficiency virus (hereinafter HIV) test for which his blood was drawn on May 29, 2000 at SUNY Health Science Center (hereinafter University Hospital) in Syracuse. The results of that test, available on June 21, 2000, indicated that he was HIV positive, but these results were not communicated to Mr. M. He learned of the results seven months later. As a "direct and proximate result" of the failure of the State to notify Mr. M. of the test results, movant was "unknowingly exposed to HIV by sexual contact" with Mr. M. Movant has tested positive for HIV (Proposed claim ¶ 6, 7 & 8).

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 §11 of the Court of Claims Act, at any time 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]).

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 in her application addresses the two factors which the Court found in its earlier decision did not weigh in favor of permitting a late claim, namely: an inadequate excuse for not timely filing and the absence of a meritorious cause of action. As this is a new application, the Court will consider all of the factors set forth in the statute.

As her excuse for not timely filing, movant asserts that she was not aware of the filing requirements, and contacted an attorney after the 90 days had already expired. Ignorance of the law is not an acceptable excuse (Matter of E. K. (Anonymous) v State of New York, 235 AD2d 540). 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, or whether the State would suffer prejudice if the application was granted, these factors, being interrelated, will be considered together. Movant does not address these factors, relying on the Court's determination that these factors weighed in favor of granting the prior application. However, that determination resulted because the defendant did not deny or dispute the assertions that the State had notice, an opportunity to investigate and would suffer no prejudice. Here, defendant raises issue with the State's notice of the facts underlying movant's proposed claim because the State had no relationship with movant. According to defendant, movant's basis for liability stems from an alleged negligent act or omission to a "non-party" and the State now asserts prejudice by that fact. Movant does not dispute the State's assertions. Although the State presumably has medical records relating to Mr. M.'s HIV testing, it does not appear that the State had any notice of the facts underlying movant's claim until receipt of her first late claim application. The Court finds that these factors weigh against granting movant's application.

The next factor, 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 (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11).

The basis for movant's claim is that Mr. M. had blood drawn on May 29, 2000 at University Hospital for an HIV test, at the suggestion of his treating physician, prior to his discharge from the hospital. As part of the discharge instructions, Mr. M. was directed to follow- up with the treating physician, Dr. Matthews, within one week. Mr. M. never met with this doctor and never received any notification of the results of the HIV test from the hospital. Mr. M. continued to have sexual relations with movant, who was pregnant, from the date of the test until after the birth of the infant. After having the baby on December 22, 2000, movant was notified in January 2001 that she had tested positive for HIV. The infant also tested positive for HIV. To support her position that if the State had notified Mr. M. timely in June 2000 she could have avoided contracting the disease, movant submits test results from a routine HIV test she had performed in July 2000 which was negative. Movant asserts that because the State was negligent in failing to inform Mr. M. of the results of his HIV test, she continued to engage in unprotected sex with him. The State's negligence in failing to inform Mr. M. of his test results proximately caused her to contract HIV.

Movant does not claim the State owes her a duty independently but asserts that the duty owed to Mr. M. should encompass her as a person foreseeably at risk of injury. To support her position that she has a viable cause of action, she refers the Court to two cases. The first case, Tenuto v Lederle Labs, 90 NY2d 606, arose when Mr. Tenuto brought his five-month-old infant daughter to the pediatrician for her second dose of an oral poliomyelitis vaccine. The pediatrician failed to warn the parents of the risk of contracting polio from their contact with the infant's saliva or bowel excretions. Within 30 days after his daughter received the vaccine, Mr. Tenuto began to show symptoms of paralytic poliomyelitis, and he is now a paraplegic. Mr. Tenuto and his wife, derivatively, sued the doctor and the pharmaceutical company that manufactured the vaccine. The Court of Appeals reviewed precedential criteria where a physician's duty was extended beyond the patient to a third party. First, a duty has been extended when a physician, in performing the duty to the patient "knew or reasonably should have known," that certain third parties were relying on the service being provided to the patient (Tenuto v Lederle Labs, 90 NY2d at 612; Eiseman v State of New York, 70 NY2d 175, 188). The duty has also been extended where a special relationship was present, arising when the patient has an infectious or contagious disease which places the immediate family at risk of contracting the same condition. The physician's duty in those cases has been extended to instruct and advise the family of the risks (Tenuto v Lederle Labs, 90 NY2d at 612-613). Finally the duty has been extended where the service performed on behalf of the patient "necessarily implicates protection of household members or other identified persons foreseeably at risk because of a relationship with the patient, whom the doctor knows or should know may suffer harm by relying on prudent performance of that medical service"(Tenuto v Lederle Labs, 90 NY2d at 613 ). The Court of Appeals, in reversing both lower courts, found that the duty of the pediatrician in this case extended to the father. The Court held that the father fell within "a determinate and identified class-immediate family members-whose relationships to the person acted upon have traditionally been recognized as a means of extending and yet limiting the scope of liability for injuries caused by a party's negligent acts or omissions"(Tenuto v Lederle Labs, 90 NY2d at 614). The Court further noted that the reasons for finding that a special relationship existed between the parents and the pediatrician was particularly persuasive since it was the parents who contracted with the physician for services and who, to the knowledge of the physician, were the primary caretakers of the infant.

Movant also relies upon Wojcik v Aluminum Co. of America, 18 Misc 2d 740. In the Wojcik case the plaintiff, through his employment, periodically had x-rays and a physical examination. The employer would then notify the employee of any problems or "irregularities" that were found. As a result of these periodic examinations and x-rays, plaintiff alleged that he refrained from being evaluated by any other physicians. It was later discovered that the plaintiff was developing tuberculosis and was never advised. Plaintiff continued to work and reside with his family resulting in his wife also contracting the disease. Plaintiff and his wife sued his employer. On a motion to dismiss the wife's cause of action, the Court found that she had stated a viable cause of action. The Court held that it was reasonably foreseeable by the defendant that plaintiff's wife would contract the disease, and in this case the "defendant's negligent conduct toward the plaintiff husband under the circumstances was negligence to the plaintiff wife"(Wojcik v Aluminum Co. Of America, 18 Misc 2d at 746).

Defendant, in opposition, distinguishes the current case from the case law cited asserting movant is not in the determinable class of persons which would warrant an extension of the duty, i.e, movant is not married to Mr. M. and there is no special relationship. Defendant further argues that the Wojcik case, supra, is in conflict with the law in this State as reflected in Ellis v Peter, 211 AD2d 353, lv dismissed 86 NY2d 885. In Ellis, the wife sued her husband's physician on the ground that he breached a duty of reasonable care by failing to warn her about her husband's contagious condition. The Court in Ellis held that extending the physician's duty to his patient's wife would result in "no demarcation of the point where the duty would end" and declined to extend the duty in that case.

Movant's counsel argues that no privity is required between defendant and movant, that under these circumstances movant can benefit from the breach of the duty to Mr. M. for her proximately caused injuries (DelDuchetto Reply Affirmation, ¶¶6, 7 and 8). In fact, the affidavit from the physician in support of movant's application speaks to a deviation from the standard of care by not informing Mr. M. of the results of his HIV test.

Despite movant's position it is axiomatic that in order to present a viable cause of action for negligence or medical malpractice, there must be a duty running from the defendant to the movant (Pulka v Edelman, 40 NY2d 781, 782; Prosser on Torts §30 at 143 [4th ed.]). Without a duty there can be no liability (Madden v Creative Servs., 84 NY2d 738, 746; Eiseman v State of New York, 70 NY2d at 187). Movant cannot establish a cause of action based solely upon a breach of a duty owed to someone else. Without a duty owing to her, there can be no liability, even for conduct resulting in foreseeable harm (See, Cohen v Cabrini Med. Ctr., 94 NY2d 639, 642; Pulka v Edelman, 40 NY2d at 785). "Courts resolve legal duty questions by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty" (Tenuto v Lederle Labs, 90 NY2d at 612). Whether a duty exists is a question of law, not fact (Tenuto v Lederle Labs, 90 NY2d at 612).

It is clear that here there is no duty to movant because there was no physician-patient relationship between her and Mr. M.'s physician. In the absence of a physician-patient relationship there can be no medical malpractice cause of action. Nonetheless, there still can be liability in ordinary negligence.

Movant seeks to impose liability upon the State for her contracting HIV, as a third party to the physician-patient relationship of Mr. M with his physician. The cases movant relies upon to support her claim, involves the imposition of liability because of the physician's failure to directly notify the third party of the doctor's patient's condition, (See for example, Tenuto v Lederle Labs, 90 NY2d at 606; McNulty v City of New York, 295 AD2d 42; Wojcik v Aluminum Co. of America, 18 Misc 2d 740; see also Ellis v Peter, 211 AD2d 353). Movant's position, is different; she argues no direct duty of notification, but rather that the failure to notify the patient, Mr. M., caused her injuries. This difference in position is significant since the legislature of this State has already determined that a physician cannot be held liable for the failure to directly notify a patient's sexual partner of exposure to HIV (Public Health Law §2783[3][a]).

This Court has found no cases in this State upholding movant's position; however, some other jurisdictions have extended a physician's liability to a third party under a similar theory. In Estate of Amos v Vanderbilt University, 62 SW3d 133, the husband of a patient who was infected with HIV from a blood transfusion received during her surgery, sued the hospital for negligent failure to warn the patient that she was at risk for contracting HIV. At the time the patient received the blood transfusion, she was not married; however, the Court held that it was reasonably foreseeable that the patient would one day marry and have a family and her future husband and daughter were within the class of identifiable third persons at risk for exposure to HIV. The duty imposed was one to warn the patient so that she could take adequate precautions to prevent transmission of the disease to her husband and child. In the Amos case, the Tennessee Supreme Court relied upon Bradshaw v Daniel, 854 SW2d 865, 870, which imposed upon a physician a duty to a non-patient third party where the physician's negligence caused reasonably foreseeable injuries to the third party, a family member. However, here in Estate of Amos, the Tennessee Supreme Court extended the duty even further than in Bradshaw v Daniel, supra, noting that the zone of danger is much larger and goes beyond the immediate family when the risk involves transmission of a deadly communicable disease. (See also, Reisner v Regents of Univ. of Cal., 31 Cal App 4th 1195 [which found a physician owed a duty to a patient's boyfriend to warn patient of her HIV status, even when the doctor did not know of the boyfriend]; DiMarco v Lynch Homes-Chester County, Inc., 525 Pa 558, 583 A2d 422 [physician for blood technician who contracted hepatitis from a patient owed a duty of care to the technician's sexual partner for the advice given to the technician to refrain from sexual relations for six weeks when abstention should have been for 26 weeks]). (Compare, Hawkins v Pizarro, 713 So 2d 1036, [patient was incorrectly advised she had tested negative for hepatitis C, husband whom she met after the mis-diagnosis contracted hepatitis C and sued the patient's doctor, court held that physician owes duty to identified third parties and since husband was not known to doctor at the time, no liability could be imposed]; Lemon v Stewart, 111 Md App 511, 527-528, [members of patient's extended family sued doctor for failure to advise patient of HIV positive status, court held that extended family were not in the class of persons known to be at substantial risk of contracting virus and no duty extended to them, however may extend to sexual or needle-sharing partner]).

In this State, most cases in which a physician's duty is extended beyond the patient involve close family members. In McNulty v City of New York, 295 AD2d 42, the First Department, in reversing the lower court's grant of summary judgment to defendant, extended the duty outside the familial relationship to a friend of the physician's patient. In McNulty the patient suffered from a highly contagious form of meningitis, and the friend who brought the patient to the hospital advised the doctor and nursing staff that she had been in close contact with the patient, only to be advised by the doctors that she did not need to treat with a prophylactic course of antibiotics. The friend sued the doctors and the First Department found that a question of fact existed as to whether the doctors rendered the advice indicated, and if they did, the Court held that a duty would run from the doctors to the friend (McNulty v City of New York, 295 AD2d at 46-48). (See also, Doe v Smith, 184 Misc 2d 186 [where court found physician owed duty to hospital technician who contracted HIV and tuberculosis from a syringe containing a pus specimen the doctor extracted from the patient. Court held duty owed to properly package a needle used in a medical procedure to those individuals to whom the needle is directed or who must transport it]).

The case law in this State in which a physician's duty has been extended to a third party consistently contains a nexus between those parties; specifically an awareness, actual or constructive, on the part of the physician that the service being provided to the patient implicates or affects other known individuals and some reliance by the party on the physician's services (See, Cohen v Cabrini Med. Ctr., 94 NY2d 639; Tenuto v Lederle Labs, 90 NY2d 606; Eiseman v State of New York, 70 NY2d 175; McNulty v City of New York, 295 AD2d 42; Miller v Rivard, 180 AD2d 331; Wojcik v Aluminum Co. of America, supra). The courts of this state are restrained in extending a duty and are careful to not expose a defendant to liability for remote and limitless plaintiffs. What the Courts have consistently refused to do is impose a duty to the general public (See, Tenuto v Lederle Labs, 90 NY2d 606; Purdy v Public Administ. of Co. of Westchester, 72 NY2d 1,9; Eiseman v State of New York, supra at 188).

Applying the established principles for extending a physician's duty as set forth in Tenuto v Lederle Labs and revisited in Cohen v Cabrini Med. Ctr, to this case, there is no assertion that the defendant had any knowledge that Mr. M. was engaged in an on-going sexual relationship. All of Mr. M.'s paperwork indicated he was "single" and he never even listed movant as an emergency contact (see, Cuffy opposing affirmation for motion M-65294, Exhibit 2). In fact, for emergency contacts Mr. M. lists none. Nor is any assertion made that movant had any involvement with the defendant; and in fact, it seems she didn't even know that Mr. M was tested for HIV, and thus was not relying on the appropriate transmission of the results. (See, for instance, T.S. affidavit Exhibit C, paragraph 4, "I have since learned that on May 29, 2000, the father of my child, [Mr. M.] was administered an HIV test at University Hospital." [Emphasis added].) There was no direct misrepresentation to movant and there was no reason defendant would have had any notice that Mr. M. was involved in an on-going sexual relationship. A doctor's general awareness of the risk of transmission of the virus to others through sexual contact, needle sharing, or other high risk behavior encompasses the risk to the general public for which this State is loathe to impose a duty of care (See, the affidavit of Dr. Richard Klein, paragraph 5, submitted in support of claimant's motion which suggests that a primary purpose for reporting the results of an HIV test is to "prevent the patient from transferring the virus to family or other members of the public"[emphasis added]). This is not a case where the physician's actions exposed the risk of injury (See for example, Tenuto v Lederle Labs, 90 NY2d 606; McNulty v City of New York, 295 AD2d 42; Miller v Rivard, 180 AD2d 331; Doe v Smith, 184 Misc 2d 186).

Opening the door to a physician's liability to a third party for failure to notify the patient of his or her potentially communicable condition where there is absolutely no contact between the physician and the third party, no notice that this particular third party is at significant risk or relying on the physician's proper performance of the medical service could potentially open the "floodgates" of liability to every person the patient could expose to the condition. Since the rationale for such an extension of liability could not logically be limited to any particular disease or condition, for more easily communicable diseases, i.e., those for which there is airborne transmission, the physician's potential liability could be endless (See, Ellis v Peter, supra at 356). Such a possibility, this Court is unwilling to unleash despite the most unfortunate circumstances presented here.

Moreover, the legislature of this State has precluded a physician's liability for the failure to directly advise or notify family members or other known individuals of their risk of infection with HIV (Public Health Law § 2783[3][a]). Permitting liability under the circumstances presented here, would allow the third party to recover indirectly for what the legislature has precluded directly.

Based upon the foregoing, this Court finds that the defendant owed no duty to movant; and as a result, no potentially meritorious claim has been proposed.

The final factor to be considered is whether movant has any other available remedy. Movant may have a cause of action against Mr. M. (See, Tischler v Dimenna, 160 Misc 2d 525). Upon balancing all of the factors in the Court of Claims Act §10(6), this Court DENIES

movant's application.

April 9, 2003
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affirmation of Ernest DelDuchetto, Esquire, in support with

exhibits attached thereto..............................................................2

Affirmation in opposition of Gordon J. Cuffy, Esquire,

Assistant Attorney General, in opposition with exhibits

attached thereto.............................................................................3

Reply Affirmation of Ernest DelDuchetto, Esquire..................................4

Affidavit of Richard Klein, M.D., ............................................................5


Because of the nature of the allegations, the court has removed the names of all the parties involved to protect their privacy.


See, R. M., T. S., Individually and T. S., as Mother and Natural Guardian of A.M., an Infant, v State of New York, Ct Cl, unpublished decision of J. Fitzpatrick, filed March 28, 2002, UID #2002-018-118, Cl. No. None, Motion No. M-63494. Unpublished decisions of the Court of Claims are available on the internet at


It appears that a medical malpractice cause of action is contemplated as well as ordinary negligence given movant's submission of a physician's affidavit indicating a deviation from the standard of care and the inclusion of a certificate of merit pursuant to CPLR 3012-a.