New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2008-038-615, Claim No. 114768, Motion No. M-75041


Defendant’s motion to dismiss claim for damages from Dept. of Health’s failure to notify claimant of possible exposure to hepatitis C dismissed. State’s conduct was governmental and discretionary, and claimant did not demonstrate a special relationship

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries sustained when defendant allegedly failed to notify claimant that she was at risk for exposure to blood-borne infections as a result of improper use of syringes by her physician.[1] The claim alleges that the State Department of Health conducted an investigation of Dr. Harvey Finkelstein and his pain management practice, Pain Care Medicine of Long Island, PLLC, in late 2004 and early 2005, and that defendant notified some of Dr. Finkelstein’s patients of their potential exposure in May 2005 and others in November 2007. Claimant, who was a patient of Dr. Finkelstein during the period of time that was investigated, was not among those notified and she did not learn of her potential exposure until November 2007 when the media began to report on Dr. Finkelstein’s improper use of syringes. Claimant underwent testing in November 2007, and she tested positive for the hepatitis C virus (HCV). Claimant alleges that defendant was negligent and that it failed to “enforce” the powers granted to it by various provisions of the Public Health Law. She asserts that by failing to inform claimant of her possible exposure to the HCV, defendant left her unaware of her risk of contracting hepatitis C and thereby prevented her from obtaining medical treatment for a period of almost three years. Defendant moves to dismiss the claim on the ground of governmental immunity. Claimants oppose the motion. Although Court of Claims Act § 8 waives the State’s immunity from suits that are grounded in the State’s status as the sovereign, that section does not operate as a complete waiver of the State’s immunity from liability (see Weiss v Fote, 7 NY2d 579, 585 [1960]). In assessing whether the State is entitled to immunity, it must be determined at the threshold whether the State was performing a proprietary or governmental function (see generally Miller v State of New York, 62 NY2d 506 [1984]). While the State does not enjoy immunity from liability arising from acts that are proprietary in nature, it may be immune when it acts in a governmental capacity (id. at 511). Even when the State acts in a governmental capacity, it will not be immune from liability for harm arising from the negligent performance of a ministerial act (see Tango v Tulevech, 61 NY2d 34, 40 [1983]). When the State’s conduct within its governmental capacity is discretionary in nature, the State will have immunity from liability for negligent acts, unless the injured party can demonstrate the existence of a “special relationship” between the injured party and the State that gives rise to a duty running from the State to the injured party (see

Pelaez v Seide
, 2 NY3d 186, 198-199 [2004], quoting Lauer v City of New York, 95 NY2d 95, 99 [2000]).

In support of its motion to dismiss the claim, defendant implicitly contends that the State was performing a governmental function that involved discretionary actions, and expressly argues that there was no special relationship between claimant and defendant. Claimant does not argue or demonstrate a special relationship that would give rise to a duty flowing from the Department of Health to claimant. Rather, claimant argues that immunity does not attach in this claim because the State’s conduct in this situation was proprietary, not governmental, and that once the Department of Health knew that Dr. Finkelstein had utilized improper syringe practices, the conduct of notifying Dr. Finkelstein’s patients was ministerial, not discretionary. Claimant contends that each of these reasons supports a determination that defendant is not entitled to immunity from liability.

Turning to claimant’s first argument, classic governmental functions are those undertaken for the general safety and well-being of the public (see Balsam v Delma Eng’g Corp., 90 NY2d 966, 968 [1997]), while proprietary functions are those traditionally performed by private entities, such as landlords (see generally Miller v State of New York, supra). “To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, [courts] must examine ‘ “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” ’ ” (Balsam v Delma Eng’g Corp., supra at 967-968, quoting Miller v State of New York, supra at 513). The conduct at issue in this claim is succinctly stated in the pleading: once it was determined that Dr. Finkelstein might have exposed his patients to blood-borne infections, “[t]he New York State Department of Health was negligent in failing to take all steps necessary to obtain a full and complete list of Dr. Finkelstein’s patients and/or take appropriate steps to apprise all of his additional patients, that had not already been notified, of the possibility that they had been exposed to and/or had contracted hepatitis C” (Claim, ¶ 4). The conduct at issue – the investigation of Dr. Finkelstein’s patient roster and notification to individuals of possible exposure to viral infection – is manifestly governmental (see generally Public Health Law §§ 201, 206). Thus, claimant’s characterization of defendant’s conduct as proprietary is without force.

In the alternative, claimant contends that defendant failed to perform a ministerial duty, i.e., that once defendant’s investigation revealed that Dr. Finkelstein had put his patients at risk of contracting viral diseases, it was a mere ministerial act to inform Dr. Finkelstein’s patients of their exposure. However, “a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (Tango v Tulevech, supra at 41; see also Bell v State of New York, 140 Misc 2d 778, 780 [Ct Cl 1988] [“Ministerial activities generally involve no more than record keeping, filing of documents or information retrieval”]), while discretionary conduct “involve[s] the exercise of reasoned judgment which could typically produce different acceptable results” (Tango v Tulevech, supra at 41). Here, claimant has proffered no statute, rule, policy, or other standard that requires a compulsory result. Indeed, the allegations of the claim itself and claimant’s exhibits in opposition to defendant’s motion reveal that defendant notified certain patients at different times (see Claim ¶¶ 3, 6), that it did so while in the process of obtaining patient records from Dr. Finkelstein (see Ferenzo Affirmation, Exhibit 1,, “State: Key factors delayed patient notification” [Dec. 3, 2007]), and based upon consideration of whether some patients were at higher risk for contracting HCV and whether broader notification would cause widespread panic (see e.g. Ferenzo Affirmation, Exhibit 1,, “Patients Were Not Told of Misuse of Syringes” [Nov. 16, 2007]). That defendant has been criticized for failing to use different methods to obtain those records merely underscores the discretionary nature of defendant’s conduct. Defendant’s conduct bears the hallmarks of discretionary conduct, and thus, it “may not result in the [defendant]’s liability even when the conduct is negligent” (Lauer v City of New York, supra at 99).

Claimant’s reliance on Haddock v City of New York (75 NY2d 478 [1990]) for the proposition that defendant’s conduct was ministerial and not discretionary is misplaced. In that case, the City of New York was held liable for its failure to investigate the criminal background of a Parks Department employee who raped a child in a City park. Immunity did not attach in that case not because the Court characterized the City’s conduct as ministerial, but because the City wholly failed to exercise any judgment or discretion thereby “violat[ing] its own internal rules and policies” (id. at 485). Here, claimant has not pointed to any statute, rule or policy that existed with respect to notification of patients, and thus, Haddock does not provide a basis for finding a lack of immunity in this case.

As the alleged tortious conduct in this claim arose from a governmental function involving the exercise of discretion, liability may still lie if claimant can establish that a “special relationship” existed between her and the State that created a duty that was breached (see Pelaez v Seide, supra at 198-199, quoting Lauer v City of New York, supra at 99). “A special relationship can be formed in three ways: (1) when the [governmental entity] violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the [governmental entity] assumes positive direction and control in the face of a known, blatant and dangerous safety violation” (id. at 199-200; see generally Abraham v City of New York, 39 AD3d 21, 25-28 [2d Dept 2007], lv denied 10 NY3d 707 [2008]). It is the claimant’s burden to establish the existence of a special relationship (see Pelaez v Seide, supra at 199). As defendant correctly and thoroughly contends, and as apparently conceded by claimant,[2] the allegations in the claim do not assert facts that would support a finding of a special relationship.

First, claimant has failed to allege that the State has violated a statutory duty enacted to benefit a specific class of persons as she has not alleged a violation of a statute that authorizes a private right of action (see Pelaez v Seide, supra at 200; Abraham v City of New York, supra at 25). A private right of action may be “implied when (1) the [claimant] is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme” (Pelaez v Seide, supra at 200). The failure to plead any of these factors from which a private right of action may be implied is fatal to a claim of special relationship (id.). Other than alleging that the State has violated a number of general statutes governing the powers of the Commissioner of Health to protect the public health and to investigate and disseminate information relating to communicable diseases, including HCV, claimant has failed to allege the violation of a statute that authorizes a private right of action.

Second, claimant failed to allege facts sufficient to demonstrate that the State voluntarily assumed a duty that generated a justifiable reliance by claimant. In order to prove the voluntary assumption of a duty with justifiable reliance thereon, claimant must establish “(1) an assumption by a [governmental entity], through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a [governmental entity’s] agents that inaction could lead to harm; (3) some form of direct contact between the [governmental entity’s] agents and the injured party; and (4) that party’s justifiable reliance on the [governmental entity’s] affirmative undertaking” (id. at 202, citing Cuffy v City of New York, 69 NY2d 255, 260 [1987]). The failure to meet any one of the aforementioned elements defeats a claim of special relationship (see Laratro v City of New York, 8 NY3d 79 [2006] [plaintiff’s failure to meet third and fourth elements fatal to claim of special relationship]). The pleading does not set forth any facts that would support a favorable finding on the first, third and fourth of these factors. Indeed, all of these factors are contraindicated by the fact that the claim is based on the State’s alleged failure to timely contact claimant about the potential for infection (accord Abraham v City of New York, supra) .

Third, claimant failed to allege that the State assumed positive direction and control in face of a known, blatant and dangerous safety violation. A finding of a special relationship under the criteria set forth in Pelaez requires a governmental entity to have actual knowledge of a blatant violation of a safety violation while providing “affirmative assurances of safety” on which the injured party relies, inducing the party to encounter the dangerous condition which would have otherwise been avoided (id. at 28). The failure to act in the face of a dangerous situation – as alleged in this claim – is insufficient to establish a special relationship (id.). Claimant has failed to plead any facts that would support this criteria, nor could she, as the allegations of the claim rest on the alleged failure of the State to communicate with claimant.

There is some facial appeal in claimant’s contention that defendant’s motion should not be granted before claimant has had the opportunity to conduct discovery on the issue of defendant’s conduct after it learned of Dr. Finkelstein’s poor practices, as discovery might produce evidence of defendant’s negligence. However, as indicated above, defendant’s immunity is a question of law that does not rest upon evidence of negligence, and thus, the lack of an opportunity to conduct discovery is not material to the instant motion.

In sum, defendant has demonstrated that it is entitled to immunity from liability for its alleged negligence, and claimant has not demonstrated otherwise. Accordingly, it is

ORDERED, that Motion No. M-75041 is GRANTED, and Claim No. 114768 is DISMISSED.

September 30, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, dated May 28, 2008;

(2) Affirmation of Michele M. Walls, AAG, dated May 28, 2008, with Exhibits A-D;

(3) Defendant’s Memorandum of Law in Support of Motion to Dismiss for Failure to State

a Cause of Action, dated May 28, 2008;

(4) Affirmation in Opposition to Motion to Dismiss of Andre L. Ferenzo, Esq., with Exhibits 1-3.

[1]. Claimant Richard Lewis asserts a derivative claim. All references to claimant in this decision shall refer to claimant Susan Lewis, unless otherwise indicated.
[2]. Claimant contends that “the possibility exists that the Claimant might be capable of establishing a ‘special relationship’ were same necessary in order to defeat the instant motion” (Ferenzo Affirmation, ¶ 65), but claimant’s papers offer no argument on that point.