New York State Court of Claims

New York State Court of Claims

TOMASSO v. THE STATE OF NEW YORK, #2009-033-353, Claim No. 116228, Motion No. M-76395


Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1.The Court sua sponte amends the caption to read The State of New York as the only properly named Defendant, as claimants filed the claim in the Clerk’s Office with the New York State Department of Health as a named defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

James J. Lack
Claimant’s attorney:
The Law Firm of Alan W. Clark & Associates, LLCBy: Alan W. Clark, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Mary Y.J. Kim, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This is a claim by Leonardo M. Tomasso (hereinafter “claimant”) for injuries due to the alleged negligence of the defendant. The claim of Carmela Tomasso is derivative in nature. Claimant received epidural steroid injections from Dr. Harvey Finkelstein between March 2002 through and including August 2003. Dr. Finkelstein was a licensed physician in the State of New York during this period. Claimant alleges defendant conducted an investigation of Dr. Finkelstein’s practices and procedures for administering the types of injections claimant received. It was found the doctor was reusing syringes in vials used to treat multiple patients and transmitted Hepatitis C to several patients. Claimant was identified as an at-risk patient and contacted by defendant.

Defendant moves to dismiss the claim pursuant to CPLR 3211 and 3212[2]. Defendant agues claimant has failed to state a cause of action against defendant. Defendant posits its actions in regard to Dr. Finkelstein were governmental in nature involving discretionary judgment which is immune unless claimant can prove a special relationship between himself and defendant. Further, defendant argues claimant fails to prove any special relationship.

In opposition, claimant argues discovery has yet to be completed in this matter. It is claimant’s position that discovery may lead to his establishing that a special class of people exists to give rise to a special relationship between claimant and defendant.

The State of New York serves two functions. The first role casts defendant in a proprietary function and the other is that of a government function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (see Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511 - 512.

The State’s proprietary function subjects it to the same rules of liability as apply to a private citizen. On the other end of the continuum, is the State’s governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Hous. Auth., 92 NY2d 553, 557 - 558).

In Lewis v State of New York (Ct Cl, DeBow, J., Claim No. 114768, M-75041), the court thoroughly analyzed the exact situation before this Court. It was a matter involving this same situation with the same doctor. The only difference between the cases was the claimant. Lewis found defendant’s actions in investigating Dr. Finkelstein and alerting his patients were governmental in nature and thus immune. Judge DeBow found claimant failed to provide any evidence a special relationship existed between claimant and defendant.

As previously mentioned, this Court finds Lewis thoroughly analyzed the issues before this Court in the instant claim. The decision by Judge DeBow was well reasoned and, in this Court’s opinion, correct.

In the instant claim, claimant’s sole argument is to support he may have a special relationship with defendant. Specifically, a special class of people may have been created to give rise to a cause of action for claimant. However, a special relationship to a special class of people must be created by statute (Pelaez v Seide, 2 NY3d 186). In Pelaez at 200, the Court stated
To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. One may be fairly implied when (1) the plaintiff 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 (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633, 541 NE2d 18, 543 NYS2d 18 [1989]). If one of these prerequisites is lacking, the claim will fail.

Claimant does not allege any statutory duty defendant has violated.

Based upon the foregoing, defendant’s motion is granted and the claim is dismissed.

September 21, 2009
Hauppauge, New York

Judge of the Court of Claims

[2].The following papers were read and considered on defendant’s motion: Notice of Motion dated March 13, 2009 and filed March 17, 2009; Affirmation in Support of Mary Y.J. Kim, Esq. with annexed Exhibits A-D dated March 13, 2009 and filed March 17, 2009; Affirmation in Opposition of Alan W. Clark, Esq. with annexed Exhibits A-D dated May 6, 2009 and filed May 11, 2009; Reply Affirmation of Mary Y.J. Kim, Esq. dated June 5, 2009 and filed June 9, 2009.