New York State Court of Claims

New York State Court of Claims

AF v. STATE OF NEW YORK, #2007-018-587, Claim No. 113660, Motion No. M-73706


Synopsis


Claim is dismissed pursuant to Court of Claims Act § 10(3).

Case Information

UID:
2007-018-587
Claimant(s):
A. F.
1 1.The Court has sua sponte changed the claimant’s name to protect the claimant’s privacy due to the sensitive nature of the claim.
Claimant short name:
AF
Footnote (claimant name) :
The Court has sua sponte changed the claimant’s name to protect the claimant’s privacy due to the sensitive nature of the claim.
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113660
Motion number(s):
M-73706
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
A. F. Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 19, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings this pre-answer motion seeking dismissal of the claim. Claimantopposes the motion.

The claim alleges that Defendant improperly released Claimant’s medical information as part of discovery in a federal court action (Fox v Poole, et al, # 06-CV-0148) without a “valid authorization” signed by claimant. Claimant alleges that the improper disclosure occurred and the action accrued on November 2, 2006. Claimant seeks a $5,000 penalty for the improper disclosure under Public Health Law § 2783(1)(b).

Defendant alleges that since Claimant’s claim accrued on November 2, 2006, he had until January 31, 2007, to either serve a notice of intention or file and serve a claim in accordance with Court of Claims Act § 10(3). Claimant served a notice of intention in this matter, which was properly mailed on February 12, 2007, and received by the Assistant Attorney General on February 14, 2007. Defendant argues that the notice of intention was 14 days late and, therefore, did not extend the time for Claimant to file and serve a claim.

Claimant, in response, argues that the unauthorized disclosure of his medical information pursuant to Public Health Law § 2782 is “continuous” in that it occurred again on April 6, 2007, and June 18, 2007, during the course of discovery in the federal court action. He argues that these acts of disclosure are so interrelated that they cannot be separated for purposes of applying time limitations. Alternatively, Claimant argues that Defendant was, in any event, given timely notice of the facts underlying his claim when he filed a grievance with Gouverneur Correctional Facility complaining about the unauthorized disclosure of his medical information.

The claim seeks damages for the violation of a statutory duty under Public Health Law

§ 2783(1)(b). Public Health Law § 2783(1)(b) provides for the imposition of a penalty for each occurrence of the disclosure or compulsion to disclose confidential HIV-related information.

Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries as a result of the negligence or unintentional tort of an officer or employee of the State shall be “filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.” (Court of Claims Act §10[3]).

The question is whether the cause of action asserted would be considered negligence, an unintentional tort, or something else. Court of Claims Act § 10(4) provides that:

[a] claim for breach of contract, express or implied, and any other

claim not otherwise provided for by this section, over which jurisdiction

has been conferred upon the court of claims
, shall be filed and served

upon the attorney general within six months after the accrual of such

claim, unless the claimant shall within such time serve upon the attorney

general a written notice of intention to file a claim therefor, in which event

the claim shall be filed and served upon the attorney general within two

years after such accrual. (Court of Claims Act § 10(4) [emphasis added]).


Claimant’s claim seeks a penalty created by statute. Under the CPLR such a cause of action is typically governed by the three-year statute of limitations (see CPLR 214[2]), at least to the extent that liability exists only pursuant to the statute (Gaidon v Guardian Life Insurance Co. of America, 96 NY2d 201, 208). If a common law remedy exists, a cause of action seeking a statutory remedy would be governed by the statute of limitations applicable to the common law cause of action (Id.; Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 220-221). The Court of Claims Act has no provision specific to a statutory cause of action.

With no specific guidance by the Court of Claims Act or decisional law as uncovered by this Court, the Court has found the Court of Appeals decision in Gaidon, 96 NY2d at 201, instructive. In that case the Court of Appeals held that under the CPLR the three-year statute of limitations under 214(2) applies only to cases which present a statutory cause of action which may be akin to a common law cause of action but which would not actually exist without the statute (Id. at 209). Statutory causes of action which merely codify existing common law liability are not governed by CPLR 214(2) but by the statute of limitations applicable to the action under common law (Id.).

A closer review of Claimant’s claim reveals that he is seeking a penalty for the release of his confidential medical information by a nurse administrator at Gouverneur Correctional Facility.[2] Clearly at common law there is a recognized cause of action for breach of the fiduciary duty of confidentiality inherent in the doctor-patient relationship (see Tighe v Ginsberg, 146 AD2d 268; MacDonald v Clinger, 84 AD2d 482). This cause of action sounds in negligence and would fall under the statute of limitations for personal injury (CPLR 214[5]; Tighe, 146 AD2d at 272). CPLR 4504 extends the privilege of confidential information beyond a physician including registered professional nurses and licensed practical nurses precluding the disclosure of any information acquired in attending the patient in a professional capacity (CPLR 4504[a]). Although this statute does not create a private cause of action for the breach, it defines the “scope of the actionable duty of confidentiality which arises between certain health care providers ....and their patients.” (Doe v Community Health Plan-Kaiser Corp., 268 AD2d 183, 187). The duty of confidentiality is not altered by the prison setting. Thus, it would seem, based upon the limited information surrounding the disclosure presented by Claimant’s claim, that a common law cause of action for breach of confidentiality may also exist in this instance. Such a cause of action is an unintentional tort and under the Court of Claims Act § 10(3) subject to the 90-day limitation within which to file and serve a claim or serve a notice of intention. Under the guidance of Gaidon, 96 NY2d at 201, this Court finds that for an action seeking a penalty pursuant to Public Health Law § 2783(1)(b), § 10(3) of the Court of Claims Act governs. As a result, Claimant had until January 31, 2007, to timely serve his notice of intention, which he failed to do.

Despite Claimant’s arguments, this is not a case of a continuing wrong, as each disclosure is separately actionable under Public Health Law § 2783(1)(b). Nor does Defendant’s notice of the facts underlying the claim through the grievance procedures negate the untimely service of the claim. Such a defect is jurisdictional and cannot be corrected, forgiven or waived by the Court (Hodge v State of New York, 213 AD2d 766, 767; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607; Grande v State of New York, 160 Misc 2d 383, 385). The Court cannot ignore the late filing and service of the claim.

Based upon the foregoing, Defendant’s motion is GRANTED. The claim is DISMISSED.




December 19, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


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


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


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto...............................2

Notice of Motion in opposition of A. F., and affidavit sworn to July 15, 2007,
with attachments.....................................................................................3


[2]. Presumably Defendant allegedly released confidential HIV-related information, although the court has nothing before it at this time to confirm this, yet is constrained to view Claimant’s documents liberally and permit Claimant any favorable inference for purposes of this motion to dismiss.