Opinion
# 2016-044-504 Claim No. None Motion No. M-87186
02-11-2016
A.W. v. THE STATE OF NEW YORK
DISABILITY RIGHTS NEW YORK BY: Stefen Russell Short, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Court denied movant's motion for permission to late file claim asserting cause of action for damages allegedly suffered as a result of the unauthorized disclosure of his protected medical and personal information.
Case information
| UID: | 2016-044-504 |
| Claimant(s): | A.W. |
| Claimant short name: | A.W. |
| Footnote (claimant name) : | The Court has sua sponte amended the caption to reflect a fictitious name for movant to protect the confidentiality afforded under Mental Hygiene Law Article 33. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-87186 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | DISABILITY RIGHTS NEW YORK BY: Stefen Russell Short, Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant moves for permission to file a late claim to recover for damages allegedly suffered as a result of the unauthorized disclosure of his protected medical and personal information. Defendant opposes the motion. Movant replies.
A motion seeking permission to file a late claim must be filed within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). In his proposed claim, movant alleges causes of action for both breach of contract and negligence based upon the disclosure of his protected information on March 3, 2014. The statute of limitations for causes of action for breach of contract and negligence are six years and three years, respectively (CPLR 213 [2], 214 [5]). Accordingly, this motion served on July 24, 2015 is timely (see e.g. Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Movant asserts that the delay in filing a claim was justified because he was waiting for defendant's Office of Investigations and Internal Affairs (OIIA) of the Office for People With Developmental Disabilities (OPWDD) to conduct and complete its investigation of the matter so that the parties could possibly resolve the issue prior to commencing legal action. Movant's ignorance of the requirements of the Court of Claims Act and the fact that the OIIA investigation was still pending are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]), particularly in light of the lack of any evidence that defendant led claimant to believe that the investigation had to be completed prior to proceeding in the Court of Claims. Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. In light of the OIIA Investigation and for the purposes of this motion, defendant candidly and appropriately admits that it had some notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice. Accordingly, these the factors of notice, an opportunity to investigate, and the lack of substantial prejudice all weigh in favor of movant.
Affirmation of Assistant Attorney General (AAG) Aaron Marcus, dated Oct. 8, 2015, in Opposition to Motion, ¶ 10.
Another factor to be considered is whether claimant has any other available remedy. As defendant notes, movant could commence an action in Supreme Court directly against the employee who disclosed his private information. This fact weighs against movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
In his proposed claim, movant alleges that he has received support and services funded by OPWDD since 1996. The services included, among other things, residential placement at Broome Developmental Center (BDC). Movant asserts that during the course of his residence at BDC, his clinical treatment team designed a plan whereby he could move from BDC into an integrated community setting. He then moved to an apartment in Port Dickinson, New York. Movant alleges that on March 3, 2014, Cassarah Jones shared certain information concerning movant through the use of social media by placing a posting on her Facebook page. The posting contained movant's name and physical description, his address - which was stated to be within walking distance of an elementary school and two public parks - as well as a statement that movant had been convicted of raping and sexually molesting several children and women. The statement indicated that movant was not required to be registered as a sex offender because he had been institutionalized for mental health reasons. The posting also stated that movant was "sexually aroused by anger and very aggressive . . . [and was] one of many [people] being released [into] neighborhoods . . . 'quietly' . . . so the community [would] not know." In her Facebook posting, Jones "tagged" Casey Holtslander, an OPWDD employee who had provided movant services and had access to his protected information while he resided at BDC. Holtslander made a comment on Jones' posting in which she thanked Jones for posting the information because she (Holtslander) worked where movant had been residing and "technically can't say this stuff [and] everyone needs to know what a piece of shit he is." Movant alleges that as a result of the disclosure, community members visited his apartment unannounced, questioned him about his background, and accused him of raping and molesting children and women. Comments were also made in response to Jones' initial Facebook posting which stated that pedophiles should be shot rather than being allowed to live in their neighborhoods. One person commented that "[p]eople like [movant] will be met at my property line with my 12 gauge." Movant states that he has suffered severe emotional distress from having been threatened, harassed, and forced to move from his apartment.
BDC is a regional office of OPWDD (Letter of AAG Marcus dated Oct. 20, 2015, at 1).
Unsworn Affidavit of Stefen Russell Short, Esq., dated July 23, 2015, in Support of Motion, Exhibit B; Proposed Claim, ¶ 19. The Court will treat Attorney Short's "affidavit" as an affirmation under the penalty of perjury pursuant to CPLR 2106.
By tagging Holtslander, Jones created a link to Holtslander's Facebook Profile (https://www.facebook.com/help/124970597582337), which apparently listed her occupation "as a 'glorified babysitter' at BDC" (Proposed Claim, ¶ 25).
Proposed Claim, ¶ 23.
Defendant does not deny that Holtslander disclosed movant's protected information, as she admitted that she did so during the course of the OIIA investigation. The OIIA investigative report is identified as Exhibit I to movant's motion papers but was not attached to them. Instead, movant submitted it to the Court and opposing counsel separately in a sealed envelope labeled "Under Seal - Do Not Publish." Because the OIIA investigative report pertains to the unauthorized release of information designated as confidential pursuant to Mental Hygiene Law § 33.13, the Chief Clerk is directed to seal Exhibit I in its entirety.
Proposed Claim ¶ 36.
Movant's first proposed cause of action alleges a violation of Public Health Law § 2801-d based upon a breach of contract. Public Health Law § 2801-d provides in pertinent part that:
[a]ny residential health care facility that deprives any patient of said facility of any right or benefit, as hereinafter defined, shall be liable to said patient for injuries suffered as a result of said deprivation . . . For purposes of this section a "right or benefit" of a patient of a residential health care facility shall mean any right or benefit created or established for the well-being of the patient by the terms of any contract . . . . For the purposes of this section, "injury" shall include but not be limited to, physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient.
Movant contends that by presenting him with a document entitled "Individual Rights" (the Individual Rights Document), defendant offered to provide him with the stated rights and by signing the document, he accepted defendant's offer. Movant further contends that his agreement to reside at BDC in exchange for defendant's promises in the Individual Rights Document (specifically the promise of confidentiality), and defendant's receipt of Medicaid reimbursement for providing movant's health-related services while at BDC, provides the necessary consideration for the Individual Rights Document to become a contract. Movant asserts that through Holtslander's disclosure of his protected health information, defendant breached the Individual Rights Document. He further argues that because BDC is an Intermediate Care Facility (ICF) and a Residential Health Care Facility (RHCF) includes an ICF, the breach is actionable pursuant to Public Health Law § 2801-d.
Conversely, defendant argues that the Individual Rights Document executed by movant and representatives of BDC does not constitute a written contract. Defendant also contends that because BDC is a regional office of OPWDD, it does not fall under the jurisdiction of the Department of Health and is not subject to Public Health Law § 2801-d.
Although movant asserts that BDC is an ICF and is therefore included within a RHCF, he has cited no support for this proposition. Public Health Law § 2800 provides that
the department of health shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services . . . serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition or for the rendering of health-related service shall be subject to the provisions of this article.
Notably, Public Health Law § 2801 (1) excludes "an institution, sanitarium or other facility engaged principally in providing services for the prevention, diagnosis or treatment of mental disability and which is subject to the powers of visitation, examination, inspection and investigation of the department of mental hygiene" from the definition of hospital. Courts have specifically held that the cause of action provided by Public Health Law § 2801-d was intended to apply to nursing homes and other facilities such as assisted living facilities operated by nursing homes, rather than to facilities operated or regulated by OPWDD for the treatment of the mentally disabled (Burkhart v People, Inc., 129 AD3d 1475, 1477 [4th Dept 2015]; Randone v State of New York, 30 Misc 3d 335 [Ct Cl 2010]). As defendant correctly notes, BDC is a regional office of OPWDD which was created pursuant to Mental Hygiene § 13.17 (b), subject to the jurisdiction of that Office, and provides treatment for the mentally disabled. It is neither a nursing home nor an assisted living facility, and does not fall under the jurisdiction of the Department of Health. The Court finds that BDC is not subject to the provisions of Public Health Law § 2801-d, and the proposed cause of action for breach of contract pursuant to this statute accordingly lacks the appearance of merit.
Even if Public Health Law § 2801-d was applicable to BDC, movant has not set forth the necessary elements to establish a breach of contract thereunder. The rights set forth in the Individual Rights Document included, among other things, the right to confidentiality regarding information contained in movant's records pursuant to Mental Hygiene Law Article 33. However, movant's contention that the Individual Rights Document is a contract is not persuasive. Even if the rights contained therein were considered an offer and movant accepted it, there is clearly no consideration. The Individual Rights Document does not obligate movant to do anything. Clearly, there is no benefit to defendant as the promisor nor any detriment to movant as the promisee and this lack of consideration is fatal to the formation of a contract (Kowalchuk v Stroup, 61 AD3d 118 [1st Dept 2009]; Von Bing v Mangione, 309 AD2d 1038 [3d Dept 2003]). Because there is no contract, there could be no actionable breach of contract.
In his second proposed cause of action, movant argues that by disclosing the confidential information, Holtslander violated the Health Insurance Portability and Accountability Act (HIPAA) (45 CFR 164.502). Conversely, defendant asserts that a violation under HIPAA does not create a private cause of action.
As an initial matter, "[t]he [HIPAA] Privacy Rule generally provides that a covered entity may not use or disclose an individual's protected health information to third parties without a valid authorization, except as otherwise permitted or mandated under the Rule (45 CFR 164.508 [a])" (Arons v Jutkowitz, 9 NY3d 393, 413 [2007]). It is undisputed in this case that Holtslander's disclosure was not authorized and therefore constitutes a violation of HIPAA. However, as defendant correctly notes, HIPAA does not create a private right of action for any violation of its provisions (see Romanello v Intesa Sanpaolo S.p.A., 97 AD3d 449, 455 [1st Dept 2012]) affd as modified, 22 NY3d 881 [2013]; Jurado v Kalache, 29 Misc 3d 1005, 1009 [Sup Ct Westchester County 2010]; see also Webb v Smart Document Solutions, LLC, 499 F3d 1078, 1081 [9th Cir 2007]; Acara v Banks, 470 F3d 569, 571 [5th Cir 2006]). The Court finds that the proposed second cause of action for negligence based upon a violation of HIPAA lacks the appearance of merit. The factor of merit as it pertains to this cause of action weighs against movant.
With respect to his third proposed cause of action, movant argues that Holtslander's disclosure of the protected information also constituted a violation of Mental Hygiene Law § 33.13. Defendant counters that Holtslander's conduct did not fall within the scope of her employment and thus cannot give rise to vicarious liability.
With exceptions not relevant to the present circumstances, Mental Hygiene Law § 33.13 (c) provides that "information about patients or clients . . . including the identification of patients or clients, and clinical records or clinical information tending to identify patients or clients . . . shall not be a public record and shall not be released . . . to any person . . . outside of the offices." Holtslander's disclosure of movant's private health information clearly violated Mental Hygiene Law § 33.13 (c). The violation of this statute has been recognized as providing a private right of action (see Godinez v Siena Coll., 288 AD2d 659, 662-663 [3d Dept 2001], lv dismissed and denied 97 NY2d 722 [2002]).
However, it is well-settled that "[u]nder the doctrine of respondeat superior, an employer may be vicariously liable for the [intentional or unintentional] tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). "An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment" (Pinto v Tenenbaum, 105 AD3d 930, 931 [2d Dept 2013], lv denied 25 NY3d 913 [2015]; see Burlarley v Wal-Mart Stores, Inc., 75 AD3d 955 [3d Dept 2010]). Actions taken by an employee for wholly personal reasons do not fall within the scope of employment (see N.X., 97 NY2d at 251).
In this case and contrary to movant's allegation, there is no evidence that Holtslander's disclosure occurred while she was working in her official capacity, or that the disclosure was authorized by BDC or OPWDD in any manner. Moreover, Holtslander's response to Jones' initial Facebook posting that she (Holtslander) "can't say this stuff [and] everyone needs to know what a piece of shit he is," is a clear expression of her own personal belief rather than that of her employer. The Court finds, as a matter of law, that Holtslander's disclosure was not in furtherance of defendant's business of providing services to people with developmental disabilities and therefore was outside the scope of her employment. Accordingly, defendant cannot be vicariously liable for Holtslander's violation of Mental Hygiene Law § 33.13 (c). The factor of merit therefore weighs against claimant with respect to his third proposed cause of action.
Proposed Claim, ¶ 23; see also Affirmation of AAG Aaron Marcus, dated Oct. 8, 2015, in Opposition to Motion, Exhibit 5.
Although the inquiry of whether an employee's action took place within the scope of employment is generally a factual question, it may be resolved as a matter of law when the facts are not in dispute (Burlarley, 75 AD3d at 956).
Movant contends that the violations of both HIPAA and the Mental Hygiene Law constitute negligence per se and thus support the proposed fourth and fifth causes of action for negligent infliction of emotional distress. Conversely, defendant asserts that the release of confidential information in this case - whether a violation of HIPAA or Mental Hygiene Law § 33.13 (c) - did not unreasonably endanger movant's physical safety or constitute any of the other limited instances which support a cause of action for negligent infliction of emotional distress.
In order to assert a cause of action for negligent infliction of emotional distress based upon the unauthorized disclosure of his protected information, movant is "required to show a breach of duty owed to [him] which unreasonably endangered [his] physical safety, or caused [him] to fear for [his] own safety" (Graber v Bachman, 27 AD3d 986, 987 [3d Dept 2006]). However, as set forth previously herein, Holtslander's disclosure was not within the scope of her employment and therefore cannot give rise to vicarious liability on the part of defendant. The Court finds that both the fourth and fifth causes of action also lack the appearance of merit.
The Court notes that a cause of action for negligent infliction of emotional distress may also be properly pleaded in instances where defendant transmitted misinformation concerning a death or defendant negligently mishandled a corpse (see Dobisky v Rand, 248 AD2d 903 [3d Dept 1998]), allegations not present in this case.
In any event, the allegations - that movant was harassed, accused of raping and molesting children and women, and questioned about his background as well as comments posted on Facebook that in essence indicated that people in circumstances like movant's should be shot rather than being allowed to live in their neighborhoods - are insufficient to support an inference that his physical safety was unreasonably endangered at any time.
In conclusion, Public Health Law § 2801-d is not applicable to BDC, and thus no cause of action for breach of contract exists pursuant to that statute. Because there is no private right of action for a violation of HIPAA, the proposed second cause of action lacks merit as well. Further, Holtslander's conduct in disclosing movant's protected information was not within the scope of her employment and consequently defendant cannot be held liable under the doctrine of respondeat superior. Accordingly, the proposed causes of action for violation of Mental Hygiene Law § 33.13 (c) and negligent infliction of emotional distress also lack the appearance of merit. Three of the six statutory factors weigh in favor of movant. However, "where the excuse offered for the delay is inadequate and the proposed claim is of questionable merit" (Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006] [internal quotation marks omitted]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Accordingly, movant's motion for late claim relief is denied in its entirety.
In Doe v Guthrie Clinic, Ltd. (22 NY3d 480, 482-483 [2014]), a nurse disclosed the plaintiff's private health information (that he was being treated for a sexually transmitted disease) to her sister-in-law, the plaintiff's girlfriend. The Court found that because the nurse was not acting within the scope of her employment, the doctrine of respondeat superior did not apply and the defendant was not liable for the disclosure (id. at 484-485). The Court did hold that in situations where "the employee is acting outside the scope of employment, a direct cause of action against the [employer] for its own conduct be it negligent hiring, supervision or other negligence, may still be maintained" (id. at 485). However, movant has made no such allegations in the proposed claim.
February 11, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed on July 24, 2015; Affirmation of Stefen Russell Short, Esq., dated July 23, 2015, and attached exhibits; Memorandum of Law dated July 23, 2015. 2) Affirmation in Opposition of Aaron J. Marcus, AAG, dated October 8, 2015, and attached exhibits. 3) AAG Marcus' letter to the Court dated October 20, 2015. 4) Movant's Reply Memorandum of Law dated November 25, 2015.