Opinion
# 2015-029-030 Claim No. 125292 Motion No. M-86185 Motion No. M-86253
04-14-2015
PROIETTI v. THE STATE OF NEW YORK
MARIA PROIETTI "for all pro se claimants" ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Dian Kerr McCullough, Assistant Attorney General
Synopsis
The State is not liable to a teacher who allegedly was infected with the TB virus while working at a private school, despite the duty of the Department of Health to prevent the spread of communicable disease, a duty that runs to the public generally and may not be the basis of civil liability to an individual. Claimant could not show a special duty, fatal to her action, and even if a special duty had been shown the governmental activity in question was discretionary, not ministerial, and thus the State has absolute immunity.
Case information
| UID: | 2015-029-030 |
| Claimant(s): | MARIA PROIETTI, CLAUDIA PROIETTI AND VINCENT PROIETTI |
| Claimant short name: | PROIETTI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Although claimants also named the New York State Department of Health as a defendant, that body is an agency of the State of New York, without independent legal existence, and suits based on the conduct of employees of that department are properly brought only against the State of New York, which is the legal entity responsible for the actions of employees of its agencies. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125292 |
| Motion number(s): | M-86185, M-86253 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | MARIA PROIETTI "for all pro se claimants" |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 14, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
According to the allegations of the filed claim, Maria Proietti became infected with tuberculosis bacteria and "contracted latent Tuberculosis Infection" while employed as a teacher at Children's Village, a school operated by the Greenburgh Eleven UFSD. She alleges she became infected on or about April 1, 2013, that she became aware of her infection on September 16, 2014, and that her infection was caused when "her students, unaccompanied alien children (UAC) refugees from other countries consistently coughed on her in her small classroom." She seeks damages from the State of New York arising from physical and mental pain and suffering, anguish, inconvenience, and loss of her teaching career and modeling opportunities. The claim was filed November 21, 2014 and served November 24, 2014.
Defendant moves to dismiss on two "jurisdictional" grounds. First, defendant maintains that:
"the Claim must be dismissed in its entirety as the Defendants and Greenburg [sic] Eleven are two separate and distinct legal entities and the defendants do not have ownership, custody and control over the location where Maria Proietti allegedly contracted TB."
(McCullough aff. ¶ 9). Defendant also moves to dismiss on the ground that the claim was late filed, an issue the court need not reach.
Defense counsel's reference to "Greenburg Eleven" is to the entity that operates the school in Dobbs Ferry where claimant taught (the Greenburgh Eleven Educational Foundation, Inc.) a not-for-profit corporation that operates the school under the auspices of the Greenburgh Eleven UFSD on the grounds of Children's Village, also operated by a private not-for-profit corporation. Defendant maintains, without contradiction, that the school district and Children's Village are entities not operated by the State of New York, and that any alleged injury arising out of any breach of an employer/employee relationship, or arising from the ownership and operation of the school, does not involve the defendant.
The allegations of the pro se claim may be grouped into two broad categories: allegations that seemingly arise from the contention that the State of New York operates the school (failure to warn of the risk involved with teaching the children at the school, failure to train personnel at the school, failure to provide an environment "free from" tuberculosis) and allegations that appear to arise from duties imposed on the defendant by the Public Health Law and arising not from anything to do with the school but from the role of defendant's Department of Health in fulfilling the obligations that the law imposes with respect to communicable diseases.
Opposing the motion, claimant does not contend that the State of New York was her employer and that it breached some duty to her arising from that relationship, rather she contends that the Greenburgh Eleven UFSD is a public school and it is therefore under "the custody and control of the New York State Department of Health," with no explanation for this conclusion, since the uncontradicted evidence establishes that the school is operated by the local school district and is not under the "custody and control"of the state Department of Health. Claimant references the duties applicable to health officials to prevent the spread of communicable diseases (Public Health Law Article 21), notes that local health officials "shall guard against the introduction of such communicable diseases as are designated in the sanitary code [including tuberculosis], by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases" (PHL § 2100[2][a]), and concludes, from the fact that she contracted tuberculosis in the State of New York : "[a]ccordingly, the State of New York and the New York State Department of Health failed to perform their duties under federal, state and local laws, as well as their own internal protocols." (Proietti aff., ¶ 18). Claimant seems to argue that since the Department of Health is charged with the duty of limiting the spread of communicable diseases in New York, if a person can establish that she contracted such a disease in a public place within the state, then she has established that the state is somehow liable to her for damages because it has failed to achieve its statutory mandate, an astonishing position and one utterly without legal support, perhaps why claimant does not even attempt to present supportive argument or authority.
Claimant, Maria Proietti, appears pro se and purports to also appear "pro se" for her parents, a legal and logical non sequitur. "Pro se" means for one's self. A person cannot appear "pro se" for another person and since Maria Proietti is not an attorney, she may not represent anyone else, i.e. practice law. Accordingly, the only claim properly before the court is that of Maria Proietti.
The court assumes the truth of claimant's contention that she was exposed to the tuberculosis virus while teaching at the Greenburgh school and has subsequently tested positive.
It is clear that the State of New York "is not liable for the negligent performance of a governmental function unless there existed 'a special duty to the injured person, in contrast to a general duty owed to the public' " (McLean v City of New York, 12 NY3d 194, 199, 878 NY2d 238 [2009], quoting Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]). The duties that the law entrusts to the Department of Health in connection with the prevention of the spread of communicable diseases could be used as a textbook example of the type of duty owed to the general public that cannot be the basis of liability, in contrast to the situation where a governmental entity assumes a special duty with respect to a particular person or group of persons. It is clear that neither the Public Health Law not the State Sanitary Code (10 NYCRR Ch. 1) creates a private right of action on behalf of members of the public who are exposed to or contract a communicable disease. "The laws and regulations of this State pertaining to the control of reportable or communicable diseases were enacted to protect the public in general, and not a particular class of persons such as schoolchildren or teachers" (Abraham v City of New York, 39 AD3d 21, 25 [2d Dept 2007]). "[I]n the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation" (O'Connor v City of New York, 58 NY2d 184, 192 [1983]). No facts from which a special duty could be inferred are alleged in this case, in which claimant simply contends that she was a teacher at a public school in the State of New York and that she was infected with tuberculosis while teaching there.
Moreover, and regardless of the question of general vs. special duty, it is now clear that discretionary governmental action, such as what measures to take to combat the spread of infectious disease, both generally and in specific instances, may not be the basis of liability in negligence (Abraham v City of New York, supra). The Abraham decision held that an alleged negligent response to a known tuberculosis outbreak cannot be the basis of governmental liability because of the inherently discretionary nature of the activity. That conclusion is all the more stronger here, where defendant has established that no case of tuberculosis or suspected tuberculosis in the school in question, or in any school in Dobbs Ferry, was reported in 2013 or 2014 and the case is not based on the response to any known infection, because there was none. Claimant simply concludes that if someone becomes infected, the Department of Health has a fortiori not done its job and may be required to answer in a civil suit, a patently absurd proposition.
"To the contrary, the investigation of a possible outbreak of tuberculosis in a school calls for the exercise of discretion and judgment by city and department officials and cannot be characterized as ministerial (see 10 NYCRR 2.6 [a] [upon receiving report of a case of communicable disease, health officer required to "make such an investigation as the circumstances may require for the purpose of verifying the diagnosis, ascertaining the source of infection and discovering contacts and unreported cases"]; NY City Health Code [24 RCNY] § 11.47 [b] [Department may require testing of household and nonhousehold contacts of a case of active tuberculosis]). And the rule of governmental immunity is that, absent proof of a special relationship between the plaintiff and the municipality (see Kovit v Estate of Hallums, 4 NY3d 499, 506 [2005]), "when official action involves the exercise of discretion, the [municipality] is not liable for the injurious consequences of that action even if resulting from negligence or malice" (Tango v Tulevech, supra at 40; see Kelleher v Town of Southampton, 306 AD2d 247, 248 [2003])" (Abraham v City of New York, 39 AD3d 21, 24 [2d Dept 2007]).
Since the Abraham decision, the Court of Appeals has clarified that the State is immune against allegations of negligence in connection with discretionary governmental activity, that the appropriate analytical methodology is (1) to determine if a special relationship existed and (2) if that question is answered in the positive, to then determine if the alleged negligence arises out of the performance of a ministerial function not involving the exercise of discretion. Only if the answer to both questions is positive can the case proceed ( Metz v State of New York, 20 NY3d 175).
It is clear that claimant has no cause of action against the State on the alleged facts and that the case must be dismissed for failure to state a cause of action (CPLR 3211 [a] [7]), notwithstanding defendant's incorrect reference to the wrong subdivision of that statute (3211 [a] [2]). Defendant has demonstrated conclusively that it cannot, as a matter of law, be held liable to the claimant for the events described in the claim. Nevertheless, that does not translate into the conclusion that the court lacks subject matter jurisdiction over the claim. Claimant intended to, and did, file an action against the State of New York. The undisputed facts, as demonstrated in defendant's papers and not refuted by claimant, establish that there is no possibility that defendant may be held liable to claimant and that she therefore has no cause of action. She proceeded in the correct court; indeed, the Court of Claims is the only trial court with the jurisdiction to make the determination made herein, which relates to the merits of the claim. Nevertheless, the misguided reasoning of defense counsel is of no moment, it is the undisputed facts and law that are important and those facts dictate that this claim must be, and hereby is, dismissed for failure to state a cause of action.
Those same undisputed facts also mandate denial of claimant's application for permission to late file, without the court determining the underlying timeliness issue because it is irrelevant. There is no merit to the claim, no indication that defendant had any notice of any of the underlying facts until this motion was made and the court finds that defendant would sustain substantial prejudice, for no reason, if forced to waste valuable resources on this matter further.
For the foregoing reasons, M-86185 is granted and the claim is dismissed for failure to state a cause of action and M-86253 is denied.
April 14, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion (M-86185), Affirmation and Exhibits
Affirmation in Opposition and Exhibits
Notice of Motion (M-86253), Affidavit and Exhibits
Affirmation in Opposition and Exhibits