New York State Court of Claims

New York State Court of Claims

TATTOOS BY DESIGN v. THE STATE OF NEW YORK, #2008-015-097, Claim No. 115289, Motion No. M-75161


Claim arising out of alleged defamatory statement on the website of the Department of Health was dismissed on immunity grounds.

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:
David Gerald Jay, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent Sprotbery, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 4, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for dismissal of the claim pursuant to CPLR 3211. Claimants, Nichole K. Hudson and Tattoos By Design, Inc., doing business as "Hardcore Tattoo," allegedly sustained damages as a result of the May 6, 2008 publication of a defamatory press release posted on the official website of the New York State Department of Health (DOH). It is alleged in the claim that the DOH "knowingly published false assertions that John Portik, a tattoo artist whose unsanitary techniques may have caused his subjects to develop hepatitis B, hepatitis C or HIV, had worked for Hardcore Tattoo in 2004-2005" (defendant's Exhibit A, claim ¶ 5).

Press releases for the years 2007 and 2008 are included on the DOH official website together with information regarding various diseases and health issues affecting communities throughout the State. The press release at issue states the following:
Niagara, Erie and State Health Departments Warn of Possible Bloodborne Infection Risk from Niagara Falls Tattoo Artist

BUFFALO, N.Y. (May 6, 2008) – People who received tattoos from John Portik III of Niagara Falls should be tested for bloodborne diseases, announced the State, Niagara County and Erie County health departments today. A public health investigation has identified eight people who developed skin infections after receiving tattoos by Mr. Portik.

Mr. Portik has been tattooing approximately the past seven years in Niagara and Erie counties. Because of the skin infections, the Niagara and Erie county health departments issued cease-and-desist orders to prevent Mr. Portik from further tattooing. He also was fined and has surrendered his tattooing equipment to the Niagara County Health Department for violating the cease and desist orders.

Health officials do not know whether Mr. Portik used proper infection control techniques to prevent transmission of bloodborne infections, such as hepatitis B, hepatitis C, and HIV. There is no information that any of Mr. Portik's clients became infected with these diseases. However, because the health departments cannot be sure of the risk, if any, for transmission of these infections, they are recommending as a precautionary measure that any person who received a tattoo from Mr. Portik since approximately January 2001 be tested for all three infections.

Portik's clients who are seeking testing should contact their health care provider. If they do not have a health care provider or do not have health care insurance, they should call the Niagara County Health Department at 716-439-7470, or the Erie County Health Department at 716-858-2929, Monday to Friday from 9:00 a.m. to 4:00 p.m. for testing options. For information concerning this investigation, other than scheduling an appointment for testing, concerned members of the public may contact a call center at 1-800-808-1987.

Mr. Portik performed tattoos at his home and in clients' homes. According to Mr. Portik, he was also employed for a short time at two former Niagara Falls tattoo studios known as Monsters Ink and Murder Ink. Mr. Portik also reported working in Erie County during 2004 and/or 2005 as an independent contractor for Hardcore Tattoo. Additionally, Mr. Portik reportedly performed tattoos at several home parties while associated with Hardcore Tattoo.
The press release also provided addresses for websites sponsored by the Center For Disease Control, the DOH and Erie and Niagara counties where additional information on risks associated with tattooing could be obtained. A disclaimer linked to the press release states that while the DOH makes every effort to assure the accuracy of information "it does not guarantee or warrant that the information . . . is complete, accurate or up-to-date." The disclaimer makes clear that "[t]his web site is intended solely for the purpose of electronically providing the public with general health-related information and convenient access to data resources."

In support of its motion for dismissal, defendant contends it is immune from suit because the statements made in the DOH press release are protected by either an absolute or a qualified privilege. As this motion is one under CPLR 3211 (a) (7)[1] the focus is upon whether the claim states a cause of action rather than the ultimate determination of the facts (Stukuls v State of New York, 42 NY2d 272, 275 [1977]). While the applicability of an absolute privilege may properly form the basis for a motion under CPLR 3211 [a] [7] (see Stukuls v State of New York, supra), a qualified privilege is a matter to be asserted by affirmative defense (Stanwick v A.R.A. Servs., 88 AD2d 767, 768 [1982], lv dismissed 57 NY2d 603 [1982], citing Ostrowe v Lee, 256 NY 36 [1931]; Garriga v Townsend, 285 App Div 199 [1954]; cf. Holland v Fulbert, Inc., 49 AD2d 86 [1975]). Thus, only if it is determined that DOH was cloaked with an absolute privilege may defendant's motion dismissing the claim be granted.

Two criteria must be met before an absolute privilege applies. First, the official must be a "principal executive of State or local government or . . . [otherwise] entrusted by law with administrative or executive policy-making responsibilities of considerable dimension" (Stukuls v State of New York, 42 NY2d at 278). Second, the allegedly defamatory statements must have been made during the performance of an essential part of the speaker's public duties (Clark v McGee, 49 NY2d 613, 620 [1980]).

An absolute privilege "exists to protect those who bear the greatest burdens of government or those to whose official functioning it is essential that they be insulated from the harassment and financial hazards that may accompany suits for damages by the victims of even malicious libels or slanders" (Stukuls v State of New York, 42 NY2d at 278). The privilege thus serves to "ensure that public officials will be free to speak their minds openly and bluntly as is required for the proper performance of their duties, without subjecting themselves to the possibility of vexatious and burdensome lawsuits" (Clark v McGee, 49 NY2d 613 at 618). Although the privilege is based on strong notions of public policy, countervailing considerations such as the right of an individual to defend his or her character or reputation require that the privilege be narrowly confined to the type of situation in which the protection is necessary (Id. at 618).

The DOH is a branch of the State government headed by the Commissioner who is appointed by the Governor (Public Health Law §§ 200, 204). The powers and duties statutorily vested in the Commissioner are extensive. Among them are the duty to "take cognizance of the interests of health and life of the people of the state, and of all matters pertaining thereto. . ." (Public Health Law § 206 [1] [a]); exercise general supervision over local boards of health and health officers (Public Health Law § 206 [1] [b]); exercise general supervision and control of the medical treatment of patients in state institutions, public health centers and clinics (Public Health Law § 206 [1] [c]); investigate the causes of disease, epidemics and other conditions upon the public health (Public Health Law § 206 [1] [d]); obtain and collect various statistical data (Public Health Law § 206 [1] [e]); enforce the public health law, the sanitory code and the provisions of the medical assistance program (Public Health Law § 206 [1] [f]); cause to be made scientific studies and research to reduce morbidity and improve the quality of medical care (Public Health Law § 206 [1] [j]); and establish and operate adult and child immunization programs (Public Health Law § 206 [1] [l]). The Commissioner also has the power to issue subpoenas to compel the attendance of witnesses to testify in any matter before him (Public Health Law § 206 [4] [a]), modify an order, regulation, by-law or ordinance of a local board of health (Public Health Law § 206 [4] [b]), and assess penalties (Public Health Law § 206 [4] [c] [d]). He is also authorized to deputize others to perform an act in his stead (Public Health Law § 206 [8]).

The duties of the DOH are similarly broad and include, inter alia, the duty to supervise the activities of local boards of health, supervise the reporting and control of disease, promote education in the prevention and control of disease, promote or provide diagnostic and therapeutic services for maternal and child health, communicable diseases, cancer and other conditions affecting the public health, license and regulate the manufacture, distribution and use of narcotics, maintain and operate state hospitals and facilities, etc. (Public Health Law 201 [a] [c] [g] [h] [j] [k]).

Public Health Law § 220 establishes within the DOH a Public Health Council comprised of the Commissioner and fourteen members appointed by the Governor. Among the powers of the Council are the power to implement, amend and repeal sanitary regulations concerning "any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York" (Public Health Law § 225 [4] [5a]). As pertinent here, the sanitary code contains a specific provision for the handling of reports of communicable diseases which requires local health offices to report such incidents to the DOH (10 NYCRR §§ 2.6; 2.16).

The foregoing establishes that both the Commissioner and the DOH are entrusted by law with administrative and policy-making responsibilities of considerable dimension and import. Although the press release at issue may not be directly attributable to the Commissioner himself, "[i]t has been held that the absolute privilege of the executive head of department extends to those of subordinate rank who exercise delegated powers" (Ward Telecom. & Computer Servs. v State of New York, 42 NY2d 289, 292 [1977]). In analogous circumstances the privilege of absolute immunity has been applied, for example, to shield the State from suit for statements made in a report prepared by the Office of the State Inspector General (Firth v State of New York, 12 AD3d 907 [2004]) and arising out of the investigation, prosecution and disclosure of the activities of a claimant by an Assistant Attorney General (Gautsche v State of New York, 67 AD2d 167 [1979]; see also Ruda v State of New York, 279 AD2d 463 [2001] [State immune from suit for statements made by a Deputy Commissioner for Enforcement of the New York State Department of Taxation and Finance]; Schell v Dowling, 240 AD2d 721 [1997] [Commissioner of the Nassau County Department of Health was immune from suit for allegedly defamatory statements relating to the handling of a tuberculosis incident by the former director of the Communicable Disease Control Unit]).

Given the content of the subject press release and the forum in which it was published, there is no doubt that the statements contained therein were related to an essential part of the duties of DOH (see Clark v McGee, 49 NY2d at 620). The press release at issue in this case provided warning to those persons who may have received tattoos from a particular individual that skin infections had been reported and that "because the health departments cannot be sure of the risk, if any, for transmission of [bloodborne diseases] they are recommending as a precautionary measure that any person who received a tattoo from Mr. Portik since approximately January 2001 be tested for all three infections." As the publication was directly related to the fulfillment of the duties of the Commissioner and DOH, an absolute privilege applies to shield the defendant from liability.

This conclusion is well supported by the policy considerations which underlie application of the privilege. The DOH must be free to report to the public on important health issues "without fear of reprisal by civil suit for damages" (see Lombardo v Stoke, 18 NY2d 394, 400 [1966]). The public interest in the receipt and dissemination of such information therefore takes precedence over the claimant's right to prosecute an action alleging damage to his or her individual reputation (Id. at 400).

Based on the foregoing, defendant's motion to dismiss the claim is granted, and the claim is dismissed.

December 4, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 25, 2008;
  2. Affirmation of Kent B. Sprotbery dated June 25, 2008 with exhibits;
  3. Memorandum of Law of Kent B. Sprotbery dated June 25, 2008;
  4. Memorandum of Law of David Gerald Jay dated August 19, 2008;
  5. Affidavit of Nichole K. Hudson sworn to August 11, 2008;
  6. Affidavit of Frank Burkhart sworn to August 11, 2008;
  7. Reply affirmation of Kent B. Sprotbery dated September 15, 2008.

[1]. Although the defendant did not specify the subsection of CPLR 3211 upon which its motion is based, by process of elimination it will be assumed herein that the motion is one pursuant to CPLR 3211 (a) (7).