New York State Court of Claims

New York State Court of Claims



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
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved for leave to file a late claim pursuant to Court of Claims Act § 10(6). Defendant opposes that application, and has cross-moved to dismiss the Claim filed and served while the motion was pending. The following papers have been submitted to the Court for review:
1. Notice of Motion, dated June 30, 2003;

2. Affidavit of Kim Triplett, sworn to June 30, 2003, in support of the motion, with exhibits attached;

3. Verified Claim, sworn to June 30, 2003, filed July 1, 2003, with affidavit of service upon the Attorney General on July 2, 2003;

4. Notice of Cross-Motion, dated August 19, 2003;

5. Affirmation of Paul Volcy, Esq., affirmed August 19, 2003, affidavits of Bobby L. Triplett, also known as Robert L. Triplett, sworn to August 14, 2003, and Joseph Tan, M.D., sworn to August 19, 2003, in opposition to the motion and in support of the cross-motion, with exhibits attached;

6. Reply affidavit of Kim Triplett, sworn to August 27, 2003;

7. Affidavit of Ellis Tobin, M.D., sworn to August 28, 2003.

On review the Court will deny Claimant's motion without prejudice, and grant Defendant's cross-motion to dismiss the Claim as untimely.

Claimant is the estranged spouse of Robert L. Triplett. From November 2, 1999, until approximately May 10, 2002, her husband was incarcerated, first at the Rensselaer County Jail and Albany County Jail, then later at the Gowanda Correctional Facility and Collins Correctional Facility. During 2001 Claimant began periodic conjugal visits with her husband under the Department of Correctional Services' Family Reunion Program ("FRP") at Collins Correctional Facility. Claimant has represented that those visits occurred every four to six weeks prior to her husband's release in May of 2002, although prison records (Tan Affidavit, Exhibit C) reflect only five such FRP visits, all between March 21, 2001 and January 23, 2002. Following Mr. Triplett's parole on May 10, 2002, Claimant and her husband resumed cohabitation. They subsequently separated on or about September 3, 2002. Mr. Triplett has now relocated to another state, possibly in violation of the terms of his parole, although it appears that the State has some ability to communicate with him.

At the heart of these matters is Claimant's assertion that Mr. Triplett became infected with hepatitis B at some point between November of 1999 and May of 2000, and subsequently transmitted that virus to her through sexual contact during their conjugal visits, or the brief period of cohabitation that followed her husband's release on parole. Mr. Triplett had twice been tested for hepatitis while incarcerated: the first, at Gowanda Correctional Facility in May of 2000; and the second, at Collins Correctional Facility in January of 2001. It is Claimant's position that in conducting and evaluating those tests Defendant's medical staff owed a duty of care not only to her husband, but to her as well, and were negligent in several alternative respects: in failing to advise them of a positive indication for hepatitis B in one part of the testing conducted in May of 2000; in subsequently relying upon an inappropriate test to determine whether that positive indication was a "false positive" result; and in failing to warn her regarding the possibility of her husband's infection, immunize her to protect against hepatitis B, or cancel their FRP visits.

Claimant has averred that following her husband's release from prison, he underwent a physical examination by a family physician, who informed both of them in June of 2002 that Mr. Triplett had become infected with hepatitis B. Over the next several months they took precautions in their sexual contact to reduce her risk of exposure to that virus. All such contact ended in early September 2002, when Claimant and her husband separated. During that same month a second physician allegedly tested Mr. Triplett, and also advised both of them that the results were positive for hepatitis B. On February 5, 2003, Claimant underwent testing to determine whether she had become infected. She first learned that she was hepatitis B positive on May 22, 2003.

The remaining submissions reflect a conflicting series of largely unsubstantiated and often conclusory allegations. Mr. Triplett has denied being infected with either hepatitis B or hepatitis C. While he has acknowledged that he underwent testing shortly after his parole from prison, it is his position that his test results were negative. He also challenged Claimant's description of the purpose for that test, stating that he had been concerned that he may have contracted hepatitis from her, after she had revealed to him in the course of their conjugal visits that she was hepatitis C positive. Despite their clear dispute regarding the purpose and results of the post-release hepatitis testing, neither of them has submitted an affidavit or medical records from the physician or physicians who evaluated Mr. Triplett.

The affidavits of two expert physicians, Joseph Tan, M.D. and Ellis Tobin, M.D., do little to clarify the key issue of whether Mr. Triplett has hepatitis B. Dr. Tan, the current Medical Director for Collins Correctional Facility, has opined that Mr. Triplett's May 2000 laboratory report provided inconsistent readings that may have indicated a false positive result in one of several hepatitis B testings, thereby necessitating an additional laboratory test. However, Dr. Tan was not the physician who ordered that test, and the facility's medical records reflect that the immediate reason for the January 2001 testing was Mr. Triplett's report to the prison medical staff on December 30, 2000, that Claimant had informed him that she had become infected with hepatitis C. Regardless of the motivation for that test, the January 19, 2001 report was clearly negative with respect to all testings for hepatitis. Dr. Tan also stated that the January 2001 "follow-up" test would have been a "Serodia-tp" confirmation test, as a matter of policy within the Department of Correctional Services. Again, however, the Court notes that those tests had been ordered by an earlier medical director at Collins Correctional Facility, and appear to have been conducted in response to Mr. Triplett's report in December 2000, concerning Claimant's hepatitis, and not as a follow-up test to confirm the May 2000 results. Further, there is no indication within the medical records or the January 19, 2001 report to support Dr. Tan's assertion that a Serodia-tp test had been conducted. Rather, the report simply reflects that multiple tests were performed, specifically to detect various forms of hepatitis, all with negative results.

Dr. Tobin, in contrast, has stated that it "appears" from the positive surface antigen result in the May 2000 laboratory report that Mr. Triplett had become infected with hepatitis B, notwithstanding the negative results of the other tests performed at that time, and the negative results in the January 2001 testing. Dr. Tobin also disputed Dr. Tan's assertion that a Serodia-tp test would clarify ambiguities in the May 2000 report, stating that such a procedure actually is used to diagnose syphilis, and not hepatitis. Additionally, Dr. Tobin offered that the inconsistent surface antigen result should have caused prison officials to either immunize Claimant, or warn her of the potential for infection, prior to the commencement of FRP visits. Dr. Tobin also noted that the lack of post-release medical records for Mr. Triplett had impaired his ability to address the issue.

The Court will first address Defendant's cross-motion, since a determination that the Claim had been timely filed and served would obviate the need to consider the initial motion for leave to file a late claim. Court of Claims Act § 10(3) requires that a person seeking to recover against the State for negligence or other unintentional tort must file and serve a claim, or preserve his or her right to so act through the service of a notice of intention to file a claim, within ninety days of the accrual of that claim. Here, any failure to diagnose, warn or restrict conjugal visits would have occurred prior to Mr. Triplett's release in May of 2002, more than a year prior to the respective filing and service of the Claim on July 1 and 2, 2003. Thus, if accrual is measured from the dates of the alleged misconduct on the part of Defendant, the Claim must be deemed untimely.

Claimant has urged that she only learned that she had become infected on May 22, 2003, and that the accrual of her causes of action should be measured from that date. In that regard, it appears that Claimant has attempted to rely upon CPLR 214-c, which provides an alternative discovery-based measure for accrual for certain causes of action arising from the latent effects of exposure to substances that lead to injury. Those provisions have been held applicable to infection resulting from sexual contact (see Plaza v Estate of Wisser, 211 AD2d 111 [transmission of HIV virus during intimate relations]). However, accrual under CPLR 214-c(2) is not simply measured from the date of discovery of the injury, but rather from that date "...or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." Here, Claimant may not have learned of her infection until late May of 2003, but in the exercise of reasonable diligence she clearly should have been able to discover any hepatitis B infection that had resulted from the FRP visits or immediate post-parole contact with her husband long before that date. Claimant is a nurse, and purports to have knowledge of hepatitis. Throughout the period in issue she was under a physician's care for her own hepatitis. Upon her own allegations she would have known of her exposure to hepatitis B by early June of 2002. Accepting Dr. Tan's unchallenged representation that the infection is subject to an incubation period of between forty-five days and six months, and averages between two and three months, Claimant could readily have undergone testing by no later than the late summer or early fall of 2002. Given the complete absence of an explanation for her failure to undergo testing at that time, Claimant cannot be deemed to have acted with reasonable diligence. Further, it is puzzling that Claimant would not have learned the results of her February 2003 test for more than three and one-half months, when Mr. Triplett's January 2001 tests took only ten days to be processed. Lastly, although not raised by Defendant, the Court notes that most if not all of the underlying allegations herein involve conduct substantially related to the rendition of medical care to Claimant's husband by medical infirmary staff under the direction of a physician, and thus sound in medical malpractice (see Bleiler v Bodnar, 65 NY2d 65, 67). Such causes of action are specifically excluded from the alternative accrual allowances provided toxic exposure claims (see CPLR 214-c[5]).

In light of the above the Court rejects Claimant's effort to measure accrual from May 22, 2003, and finds that the Claim is untimely.

The Court will next address the Claimant's motion for leave to file and serve a late Claim. Court of Claims Act § 10(3) requires that a personal injury claim based upon negligence be commenced within ninety days of accrual, unless a written notice of intention to file a claim is served upon the Attorney General within that same ninety-day period, in which case the claimant is afforded up to two years from accrual to file that claim. Relief from the failure to take timely action is authorized under Court of Claims Act § 10(6). The statute sets forth six factors among those to be considered, although such determinations rest within the broad discretion of the reviewing court, and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981). Those listed factors consist of the following: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file and serve a timely claim or serve a notice of intention has resulted in substantial prejudice to the State; and whether the Claimant has any other available remedy.

Of the six factors, the appearance of merit has been characterized as the most decisive, since it would be futile to permit a meritless claim to proceed (see Dippolito v State of New York, 192 Misc 2d 395, 396-397; Jolley v State of New York, 106 Misc 2d 550, 551). To meet that burden a movant must establish that the proposed claim is not patently groundless, frivolous or legally defective, and that from a review of the entire record there is reasonable cause to believe that a valid claim exists (see Dippolito v State of New York, at 396-397; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12). Here, even under that relatively low threshold, Claimant has failed to satisfy the Court that she possesses a colorable claim. Not even her own medical expert has affirmed with any degree of certainty that Mr. Triplett contracted hepatitis B in prison. Further, Dr. Tobin never opined that Defendant's medical staff committed malpractice with respect to either Claimant or her husband, a factor critical to an assessment of merit in a claim of this type (see Jolley v State of New York, supra). Of the two test reports presented to this Court, the first included a single inconsistent reading in what otherwise were negative results, and the latter is uniform in reporting that Claimant's husband had not become infected. In his affidavit Mr. Triplett has denied either a hepatitis B or hepatitis C infection, and has denied being advised that he had tested positive for hepatitis in his post-parole testing. In sum, while Claimant certainly has challenged the adequacy of her husband's testings while incarcerated, and has disputed both the purpose and results of his post-release testing, she has failed to submit affirmative proof that her husband is hepatitis B positive.

In this Court's view the absence of factual support and opinion evidence regarding Mr. Triplett's medical testings is of greater significance in light of the difficult question of duty that also is presented. Claimant asserts that even absent a doctor/patient relationship with the infirmary staff, the prison's medical providers owed her a duty to immunize her from hepatitis B, or warn of risks of infection. Courts have shown reluctance to expand such duties of care by medical professionals to nonpatients (compare Tenuto v Lederle Labs., 90 NY2d 606 [duty to warn recognized where treatment itself created danger to infant patient's parents, who were directly involved in the medical care of their child]; McNulty v City of New York, 100 NY2d 227 [no duty to warn friend who accompanied adult patient to hospital of danger of infection, where danger did not arise from treatment rendered]). Thus far Claimant has failed to demonstrate a basis upon which Defendant's alleged failure to diagnose her husband's infection would allow for the recognition of a duty of care to her directly.

Three factors, notice, opportunity to investigate and prejudice, are interrelated, and will be addressed jointly. Undisputedly, until Claimant filed and served her motion Defendant would not have had knowledge of her infection, or any potential liability resulting from her participation in the FRP program. Defendant is now hindered in its ability to investigate the Claim, and for that reason prejudiced in its ability to defend. Claimant's cause of action is premised upon becoming infected during an FRP visit – the last of which occurred on January 23, 2002 – or a four-week period between mid-May and early June of that year. The delay in her testing and filing has impaired Defendant's ability to explore whether Claimant could instead have become infected at some other time, or by some means other than contact with her husband. Moreover, while both parties appear to have gained access to Mr. Triplett's prison medical records, Defendant does not have access to the records of the two physicians who allegedly examined him during the summer of 2002, or the records of the physicians who have treated Claimant over the last three years. The absence of medical records has rendered it more difficult for all concerned, including Claimant's own medical expert, to resolve the critical question of whether Mr. Triplett even is infected, as well as the State's ability to determine the point at which Claimant had contracted hepatitis B.

The question of excuse also weighs against a grant of relief. Understanding that the date of accrual itself is unsettled, Claimant's failure to promptly take action to undergo blood testing and file a claim promptly after the latest point of accrual, in early June of 2002, remains unexplained. As noted earlier, it is quite puzzling that a person with medical training and a professed knowledge of hepatitis, under active treatment for another strain of that same infection, would wait some eight months to first undergo testing, and another three and one-half months to learn the results. Dr. Tan's affidavit, and the records of her husband's testing, support that claimant could have undergone her own testing months before she did, and could have obtained the results of that test within a matter of a few weeks. Claimant has failed to offer any explanation for those delays, which ordinarily should be supported by expert medical evidence in any event (see Matter of Lodati v City of New York, 303 AD2d 406, 407).

One factor, the lack of alternative remedy, does appear to favor a grant of relief. Based upon Claimant's allegations any possibility for recovery would likely result solely from a claim against Defendant. That consideration, however, cannot offset the several factors weighing against the requested relief.

The Court's denial of leave at this time is without prejudice to a later application, supported by a more complete submission of medical records, as well as some explanation of the reasons for Claimant's own delay in determining she had become infected.

Based upon the above, it is

ORDERED, that Claimant's motion is denied without prejudice. Defendant's cross-motion is granted, and the Claim filed on July 1, 2003, is dismissed.

December 8, 2003
Buffalo, New York

Judge of the Court of Claims