Defendant's first affirmative defense should be dismissed. The alleged unauthorized disclosures were included in the proposed claim as additional causes of action. Defendant did not take issue with the inclusion of these additional dates at the time Claimant moved to file a late claim. The Court finds Defendant's untimeliness argument is without merit. As to Defendant's second affirmative defense, it has been held that alleging a failure to state a cause of action is harmless surplusage and a motion to strike is unnecessary.
Defendant, by its motion to dismiss also argues that the April 6, 2007 and June 18, 2007 causes of action should be dismissed because the claim fails to specify where these causes of action arose, who disclosed the information, or the nature of the unauthorized disclosure. Although not alleged with the specificity an attorney may have included, the information provided allows the State to properly investigate its potential liability. The State's cross-motion to dismiss is hereby denied.
|Claimant short name:||A.F.|
|Footnote (claimant name) :||The Court has changed the name of the Claimant sua sponte to protect Claimant's privacy due to the sensitive subject matter of the claim.|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||A. F.
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Thomas Trace, Esquire
|Third-party defendant's attorney:|
|Signature date:||June 28, 2010|
|See also (multicaptioned case)|
Claimant moves to strike Defendant's affirmative defenses pursuant to CPLR 3211 (b)and Defendant cross-moves for the dismissal of the second cause of action pursuant to CPLR 3211 (a) (2) (8).
The procedural history of this matter is relevant to the resolution of these motions. A Notice of Intention to File a Claim was served on the Defendant on February 14, 2007, alleging a violation of Public Health Law § 2782, disclosure of confidential medical information. That Notice of Intention alleged an accrual date of November 2, 2006, and requested damages in the amount of $5,000 which is the maximum amount set by statute for a single disclosure. Based upon this disclosure, a claim was filed on May 4, 2007. That claim was dismissed as untimely,(2) as the Notice of Intention to File a Claim was 14 days late. In opposition to that motion to dismiss, Claimant alleged the disclosure was a continuing wrong and specified April 6, 2007 and June 18, 2007, as additional dates of unauthorized disclosure of confidential information. It was determined by this Court in that Decision and Order for dismissal of that claim, that Court of Claims Act § 10 (3) applies to an action seeking penalties pursuant to Public Health Law § 2783 (1) (b) and that each alleged violation of this statute is separate and distinct.
Claimant then moved for and was granted permission to file a late claim.(3) As required for such a motion, Claimant attached a proposed claim to the motion papers which stated that the claim accrued on November 2, 2006. It further read:
9. By reason of the foregoing, Claimant was damaged in the amount of $15,000.00 (Fifteen Thousand Dollars), for the "pain and suffering" that resulted from the release of confidential medical information in violation of (Public Health Law § 2782  [b]), by the Nurse Administrator of Gouverneur Corr. Facility, an employee of the State of New York, while in the course of performing his/her "official duties as an employee, on or about November 6, 2006, April 6, 2007, and June 18, 2007, each instance of "disclosure" is a "separate" cause of action.
And claimant demands judgement (sic) against the defendant for said amount of $5,000.00 per disclosure, for a total of $15,000.00 (Fifteen Thousand Dollars).
The instant claim, which is not identical to the proposed claim submitted with Claimant's late claim application, was filed on January 25, 2010, and an answer was filed on March 4, 2010, with the following affirmative defenses:
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. This Court lacks subject matter jurisdiction of the claim and personal jurisdiction over the Defendant, the State of New York, as to new allegations which were not contained in the Motion for Permission to File a Late Claim granted on December 9, 2009 (Motion No. M-76946). The Motion for Permission to File a Late Claim concerned a medical memorandum dated November 9, 2005 disclosed to the Attorney General on approximately November 2, 2006. The new allegations raised in Paragraph 2 of the present Claim concern other incidents on April 6, 2007 and June 18, 2007 and records filed with the U. S. District Court, Western District of New York in relation to Fox v. Poole, 06 CV-0148. These allegations are untimely in that neither a claim nor a notice of intention concerning these new allegations was served within the ninety (90) days of the accrual of these claims as required by Court of Claims Act §§ 10 and 11.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. That the claim fails to state a cause of action against the Defendant, the State of New York, in that the memorandum was provided to the Attorney General's Office in order to defend a legal action as permitted by law and 7 NYCRR § 7.5 (b) (7).
The Court will first address Claimant's motion to dismiss Defendant's first affirmative defense and Defendant's motion to dismiss the April 6, 2007 and June 18, 2007, causes of action together as they are interrelated.
On a motion to dismiss an affirmative defense, the Court must accept as true the allegations of the defense and draw all inferences in favor of the defense (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 citing Grunder v Recckio, 138 AD2d 923). A defense should only be dismissed if no defense is stated or it has no merit (CPLR 3211 [b]).
Claimant asserts in his motion that the causes of action arising from April 6, 2007 and June 18, 2007 were set forth in his proposed claim filed with the Court and served upon Defendant on July 8, 2009 and are properly before the Court and raised against Defendant. Defendant argues in support of its cross-motion to dismiss that the late claim motion and the Court's Decision and Order granting permission to file a late claim did not involve causes of action for those two dates. Defendant also argues that these causes of action are therefore untimely because they were not contained in a timely served notice of intention.
Although the alleged unauthorized disclosures on April 6, 2007 and June 18, 2007 were not prominently argued by Claimant or acknowledged by the Court in its Decision and Order, these were set forth in the proposed claim as additional causes of action. Defendant did not take issue with the inclusion of these additional dates at that time. Although the claim Claimant actually filed is not identical to the proposed claim submitted with his late claim application, the filed claim is not substantively different despite more prominently setting forth the April and June dates of the alleged unauthorized disclosure. Nonetheless these dates were part of the proposed claim Claimant was given permission to file (cf. Matter of O'Shea v State of New York, 36 AD3d 706; Barbera v State of New York, 64 AD2d 786). As a result, the Court finds Defendant's untimeliness argument is without merit based upon the Court's granting Claimant permission to file the proposed late claim. Accordingly, Defendant's first affirmative defense should be dismissed.
As to Defendant's second affirmative defense, it has been held that alleging a failure to state a cause of action is harmless surplusage and a motion to strike is unnecessary (Pump v Anchor Motor Freight, Inc., 138 AD2d 849).
Defendant, by its motion to dismiss also argues that the April 6, 2007 and June 18, 2007 causes of action should be dismissed in accordance with Court of Claims Act § 11 (b), because the claim fails to specify where these causes of action arose, who disclosed the information, or the nature of the unauthorized disclosure.
Court of Claims Act § 11 (b) provides that:
The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained...
To meet the jurisdictional requirements of § 11 (b), a claim needs to be detailed enough to enable the State to investigate and promptly ascertain the existence and extent of its liability (Sega v State of New York, 246 AD2d 753). The State is not required to ferret out or assemble the information that should be alleged in the claim (Lepkowski v State of New York, 1 NY3d 201).
Here the pro se Claimant has alleged that on three separate and specified dates confidential information was disclosed by a nurse administrator at Gouverneur Correctional Facility to an attorney in Buffalo, New York who then filed Claimant's medical records with the United States District Court, Western District of New York, as part of a § 1983 cause of action. Although not alleged with the specificity an attorney may have included, the information provided allows the State to properly investigate its potential liability. The State's cross-motion to dismiss is hereby DENIED.
Therefore, Claimant's motion is GRANTED in part and Defendant's cross-motion is DENIED.
June 28, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding these motions:
1) Notice of Motion.
2) Affidavit of A.F., in support, sworn to March 7, 2010, with exhibit attached thereto.
3) Notice of Cross-Motion.
4) Affirmation of Thomas Trace, Esquire, Senior Attorney, in support of cross-motion and in opposition to Claimant's motion with exhibits attached thereto.
2. A.F. v State of New York, Ct Cl, Fitzpatrick, J., Claim No. 113660, Motion No. M-73706, [UID # 2007-018-587].
3. A. F. v State of New York, Ct Cl, Fitzpatrick, J., Cl. No. None, M-76946, filed January 13, 2010 [UID # 2009-018-058].