New York State Court of Claims

New York State Court of Claims

CARTIER v. THE STATE OF NEW YORK, #2009-030-509, Claim No. 113515, Motion No. M-76110


In claim alleging various causes of action such as negligent failures to provide safe work place, to protect against assault/battery by fellow inmate, failure to follow regulations, and negligent infliction of emotional distress under AIDS-phobia theory, claimant motion for summary judgment on liability denied. Did not meet burden on motion. Claim verified by attorney therefore could not be substituted for an affidavit by someone with knowledge; none of the deposition transcripts are notarized; none of the documents are certified or referenced in an affidavit by a person with knowledge including photocopied regulations. Even if proof in admissible form had been submitted, negligence and contributory negligence not clear

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:
Third-party defendant’s attorney:

Signature date:
February 24, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for partial summary


1,2,3 Notice of Motion; Affirmation in Support of Motion by Gary Divis, Attorney for claimant, Memorandum of Law and attached exhibits

  1. Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General
  1. Responsive Memo of Law by Gary Divis, Attorney for Claimant
6,7 Filed papers: Claim, Answer

Andre Cartier alleges in his claim that while he was an inmate in the custody of the New York State Department of Correctional Services [DOCS] at Sing Sing, he was negligently exposed to HIV by state personnel during his clerical work assignment at the facility’s infirmary. More specifically, on April 4, 2006 Mr. Cartier, who allegedly had no medical training at the time, was ordered by Correction Officer Marcy Brown to assist medical staff in returning a disorderly inmate to his bed. In the process, the inmate, Charles Sturdivant, who suffered from HIV, threw blood at claimant that landed in his mouth. Thereafter, Mr. Cartier was given prophylactic medications, suffered side effects from these, as well as mental anguish resulting from his fear of contracting AIDS. The claim recites that Mr. Cartier seeks recovery for “common law negligence, failure to maintain a safe working place and conditions, breach of ministerial duty, battery, intentional and negligent infliction of emotional distress, and denial of mental health treatment.” [Claim No. 113515, ¶2]. These seven (7) causes of action are stated in separately numbered paragraphs, but for the emotional distress causes of action which are joined as fifth and sixth causes of action. [See ibid.].

Claimant moves for partial summary judgment on the entire issue of liability, or alternatively moves for partial summary judgment limiting the factual issues to be determined at the liability trial now scheduled for March 17, 2009. Claimant has submitted his attorney’s affirmation and memorandum of law, along with his own deposition, that of his DOCS treating physician, Dr. Mikulas Halco, and the deposition of Correction Officer Brown, as well as documents including, among other documents, portions of Mr. Sturdivant’s medical record, the pleadings, photocopies of a portion of the DOCS health services policy manual dated August 9, 1991, a portion of inmate disciplinary regulations, a DOCS directive that post-dates the incident, and claimant’s grievance documents concerning this incident. Other depositions attached include those of Patricia Conklin, RN, and Philip Williams, PA. None of the depositions have been signed and notarized. None of the documents are certified, or referred to in an affidavit by a person with knowledge as genuine or - in the case of regulations, policies or directives - applicable.

It is axiomatic that the State owed claimant a duty of providing a reasonably safe work environment while claimant worked at his job assignment in the infirmary. While not an insurer, the State nonetheless owed claimant a duty to adequately train and supervise him in the performance of his job assignment, to follow its own regulations and policies, to keep claimant free from foreseeable assaults or attacks by fellow inmates, and to give him adequate medical or psychiatric care. Injuries proximately caused by a breach of such duties are compensable.

Under current law, in order to establish liability for negligent infliction of emotional distress[1] under an AIDS-phobia theory, a claimant who has not tested positive for HIV must establish actual exposure to HIV/AIDS through the defendant’s negligence, and a medically accepted channel for the disease’s transmission in order that the fear of contracting the disease have a reasoned rather than an irrational basis. See Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1, 6-9 (2008);[2] Siegrist v State of New York, 55 AD3d 717, 718 (2d Dept 2008);[3] see also Brown v New York City Health & Hosps. Corp., 225 AD2d 36, 45 (2d Dept 1996). [4] A claim for damages for negligent infliction of emotional distress cannot be arbitrarily restricted to a set time period based upon a negative HIV test result. Ornstein v New York City Health & Hosps. Corp., supra.
Summary Judgment
More significant than what factual predicates must be shown to establish the causes of action claimant originally asserted in his claim, or those that he appears to be moving on here, is the fact that the motion is flawed because it is not properly supported in the first place. Claimant has not established entitlement to judgment as a matter of law sufficient to shift the burden to defendant to show that there are triable issues of fact warranting a plenary trial. Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

The Court’s function is “issue finding, rather than issue determination . . .” Matter of Suffolk County Dept. of Social Services v James M., 83 NY2d 178, 182 (1994); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957). In reviewing the papers submitted on a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion, here, the defendant. Robinson v Strong Memorial Hospital, 98 AD2d 976 (4th Dept 1983). Denial of the motion is required “. . . ‘regardless of the sufficiency of the opposing papers’ . . . ” [Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993), quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986)] when movant has not made a prima facie showing utilizing the requisite evidence establishing entitlement to judgment as a matter of law.

“It is settled that negligence cases by their very nature do not lend themselves to summary dismissal ‘since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination’ (Ugarriza v Schmieder, 46 NY2d 471. . . ; see also, Andre v Pomeroy, 35 NY2d 361, 364-365... ).” McCummings v New York City Transit Authority, 81 NY2d 923, 926, (1993) rearg denied 82 NY2d 706 (1993), cert denied 510 US 991 (1993).

The use of an attorney’s affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, may be adequate to sustain a movant’s initial burden in some cases. Alvarez v Prospect Hospital, supra.[5] Here, however, while the pleading is verified by Mr. Cartier’s attorney as allowed by Civil Practice Law and Rules §3020(d), it is not the type of document[6] that should be relied on in support of a summary judgment motion. It is not an affidavit by a person with knowledge or a verified pleading by the claimant: a far more meaningful verification for these purposes.

Moreover, none of the depositions attached as exhibits have been signed and notarized. No affidavits by people with knowledge have been appended nor has any affidavit by a medical or psychiatric expert with regard to any cause of action for medical malpractice been included. Only counsel’s conclusory statements in four (4) numbered paragraphs - and even these are not specifically addressed to what issues are urged should be determined on the proof submitted - have been set forth, with a reference, in list form, to a voluminous single exhibit which includes these unsigned depositions, uncertified documents, and internal memoranda not tied in to any arguments. [See Affirmation in Support of Motion, ¶¶1-4]. The memorandum of law contains further conclusory statements, referencing more particularly, however, where in the exhibit a fact is purportedly established by the appended unsworn testimony or uncertified record. These references, however, assuming they were directed to proof in admissible form, would only go so far as to show that Mr. Sturdivant suffered from AIDS on April 4, 2006 when this incident occurred, and also suggest that claimant was “exposed” within the meaning of the AIDS phobia version of negligent infliction of emotional distress. The State’s negligence, however, again assuming proof in admissible form were actually attached, is not so clear, nor is any issue of claimant’s culpability concluded. That claimant was ordered to intervene in accordance with a direct order by a correction officer in supposed contravention of health services policy is not established without a witness saying that the policy concerning what an inmate working in the health unit may be directed to do was applicable for example, nor do uncertified internal memoranda establish the reasonableness of actions taken at the time.

Based on the foregoing, claimant has not sustained his initial burden on the motion and it is in all respects denied.

Trial on the issue of liability will go forward as scheduled on March 17, 2009. If in the interim the parties should reach an agreement as to any stipulated facts same should be set forth in writing and submitted.

February 24, 2009
White Plains, New York

Judge of the Court of Claims

[1]. The aspect of the claim asserting intentional infliction of emotional distress does not state a viable cause of action. The State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, “. . . public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State . . . (citation omitted),” De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496,498 (2d Dept 1984).

[2]. In the context of determining the extent of damages which could be claimed, the Court of Appeals abrogated that portion of the holding in Brown v New York City Health & Hosps. Corp., infra which appeared to restrict a plaintiff’s recovery for emotional distress as a matter of law to a six (6) month period from the time of exposure and/or a negative HIV test. In Ornstein, claimant was a nurse who had been exposed to HIV when stuck by a needle utilized by an afflicted patient. She consistently tested negative for HIV when tested every three months for a period of two years, and undertook prophylactic treatment. The Court said: “There is no question in this case that defendants owed plaintiff a duty of care and that she came forward with proof that fulfilled the ‘actual exposure’ requirement, thereby satisfying the indicia of genuineness requirement. Thus, the parties agree that plaintiff’s negligent infliction of emotional distress claim warranted a jury trial. The disagreement centers on the extent of damages that plaintiff was entitled to request at trial. . . . [L]imitation of all categories of damages based on the statistical probability of testing positive for HIV within a particular time frame does not account for the fact that a plaintiff exposed to HIV may suffer injuries that are distinct from the fear of contracting the virus. In this case, in response to defendants’ motion to dismiss, plaintiff offered medical proof that she continued to suffer from post-traumatic stress disorder, a recognized psychiatric condition requiring treatment with medication and therapy, even after her concern that she had contracted the virus was alleviated. Plaintiff testified that she lost income because she was never able to return to per diem hospital work after the incident due to her fear of similar future exposure incidents. In addition, while her HIV status was uncertain, she was unable to engage in direct patient care but had to confine her duties to office work. She stated that, after it was determined that she had not contracted the virus, she continued to suffer from post-traumatic stress disorder and that this condition was a contributing factor in her decision to permanently change the nature of her employment from direct patient care to teaching. If it credited this evidence, a rational jury could find that plaintiff’s psychiatric condition and resulting loss of income were directly related to the exposure incident, warranting monetary recovery.”
[3].Shortly after claimant’s surgery at defendant’s hospital, her surgeon told her that blood from a previous patient was found in the ventilator used during her surgery. The previous patient was in a coma, and ultimately died, thus consent to HIV testing could not be had. Although the claimant was told that her risk of contracting any disease from the blood was minimal given the location of the blood in the instrument, it was nonetheless recommended to her that she undergo HIV testing every three (3) months for one (1) year. She did so, testing negatively on each occasion. Defendant’s cross-motion for summary judgment dismissing the claim based on claimant’s failure to offer any evidence that she was exposed to HIV was granted.

[4]. “ In determining the reasonableness of a plaintiff's fear of developing AIDS, courts have considered one or more of three factors: (1) the channel of transmission of the disease, (2) whether HIV was present when the transmission occurred, and (3) the results of HIV-antibody tests. A positive HIV-antibody test, of course, is sufficient prima facie proof that the plaintiff’s fear of developing AIDS is reasonable. We are concerned here, however, with a case where the plaintiff has not tested seropositive. We conclude that, in order to maintain a cause of action for damages due to the fear of contracting AIDS, a plaintiff who has not tested seropositive must offer proof of ‘actual exposure’, that is, proof of both a scientifically accepted method of transmission of the virus (in this case a needle puncture) and that the source of the allegedly transmitted blood or fluid was in fact HIV positive (in this case the unfortunate infant). Requiring proof of actual exposure in this manner will, we believe, insure that there is a genuine basis for the plaintiff's fear of developing the disease, that the fear is not based on public misconceptions about the disease, and that such claims are treated consistently. Moreover, we emphasize that ‘[t]he existence of the channel for infection makes the threat of infection much more of a real possibility to be feared and far more than a speculative worry. Liability in the absence of a channel could provoke a flood of ill-justified litigation. Of course, it is the channel for infection, not actual HIV transmission or infection, which must be proven’ . . .(citation omitted).” The Brown court then went on to limit the period during which a fear would be reasonable to six (6) months after exposure, as a negative HIV-antibody test was found to be 95% accurate within that time frame.
“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted).”
Civil Practice Law and Rules §105(u) indicates that “. . . [a] ‘verified pleading’ may be utilized as an affidavit whenever the latter is required.”