Opinion
# 2018-015-151 Motion No. M-92153
08-23-2018
D.W. v. THE STATE OF NEW YORK
D.W., Pro Se Honorable Barbara D. Underwood, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General
Synopsis
Motion for late claim relief was granted with regard to the proposed cause of action for the unlawful disclosure of confidential HIV information but denied with respect to the proposed cause of action for negligent infliction of emotional distress.
Case information
| UID: | 2018-015-151 |
| Claimant(s): | D.W. |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | The caption has been amended to protect movant's identity. |
| 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-92153 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | D.W., Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 23, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, a pro se inmate, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim seeking damages for the unlawful disclosure of information related to his treatment for the human immunodeficiency virus (HIV).
In his proposed claim, movant alleges that on July 21, 2016 Physician's Assistant Nesmith revealed to inmates and correction officers in the clinic area of Great Meadow Correctional Facility information sufficient to inform them of the fact he had HIV. Specifically, movant alleges that after P.A. Nesmith privately queried him regarding his medications, one of which was to treat his HIV. He then left the room, returned moments later and, while standing in the hallway outside the open evaluation room door, asked the movant " 'What prescriptions you take again, HIV and [w]hat else?' " (movant's Exhibit 1, proposed claim, ¶ 6). Movant alleges that this statement revealed his HIV status to those present and therefore violated Public Health Law §§ 2780, 2782, 2783 and 7 NYCRR §§ 7.2 (g), 7.5 (b). Movant also seeks damages for the negligent infliction of emotional distress, alleging he suffered discrimination, stigma, intolerance, ostracism, . . . severe embarrassment, as well as major depression, anxiety and suicidal thoughts (id. at ¶¶ 10 and 11).
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." While claimant characterizes the instant claim as one for "negligent disclosure" (movant's Exhibit 1, proposed claim, ¶ 9), a claim for the improper release of confidential HIV-related information under Public Health Law article 27-F is a statutory cause of action not requiring proof of negligence to prevail.
Article 27-F of the Public Health Law was enacted in 1988 to protect the confidentiality rights of those infected with HIV. Public Health Law § 2782 prohibits the disclosure of "confidential HIV related information" except in limited circumstances and § 2783 authorizes the imposition of criminal and civil penalties for certain violations. Citing the legislative history of the article 27-F, the Court in Doe v Roe (190 AD2d 463 [4th Dept 1993], lv dismissed 82 NY2d 846 [1993]), concluded that the Legislature intended to create a private cause of action to remedy violations of the article (id. at 471; see also Matter of V. v State of New York, 150 Misc 2d 156 [Ct Cl,1991]; Nolley v County of Erie, 802 F Supp 898 [WD NY 1992]), and cases in this Court have resulted in the imposition of penalties for violations of the statute (see e.g. S.S. v State of New York, UID No. 2006-018-497 [Ct Cl, Fitzpatrick, J., 2006]; Tatta v State of New York, 20 AD3d 825 [3d Dept 2005], lv denied 5 NY3d 716 [2005]). Unlike an action for breach of a physician's fiduciary duty not to disclose confidential personal information, which sounds in tort (see Burton v Matteliano, 81 AD3d 1272, 1274 [4th Dept 2011], rearg denied 83 AD3d 1603 [4th Dept 2011], lv denied 17 NY3d 703 [2011]; MacDonald v Clinger, 84 AD2d 482 [4th Dept 1982]), an action for the imposition of a civil penalty under Public Health Law § 2782 is a creature of statute subject to the three-year statute of limitations set forth in CPLR 214 (2) (see Doe v Belmare, 31 Misc 3d 904 [Sup Ct, Kings County, 2011]). To the extent the proposed claim seeks compensatory damages for the emotional harm caused by the State's alleged violation of the statute, the cause of action is one for negligent infliction of emotional distress, which is a tort controlled by the three-year statute of limitations applicable to personal injury claims (CPLR 214 [5]). The instant motion is therefore timely, having been filed and served within three years of the date the proposed causes of action accrued.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The excuse advanced by movant for failing to timely serve and file the claim is that the lack of privacy in the law library made it impossible to use typewriters without further disclosure of confidential information. However, movant fails to explain how he managed to successfully type the instant motion without compromising his privacy or when, during the last two years since the claim accrued, these circumstances changed. The Court does not find claimant's excuse for failing to timely file the claim reasonable.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant indicates that he filed a grievance to which medical personnel responded. Although movant does not indicate the date of his grievance or the responses thereto, the State does not claim it lacked notice or the ability to investigate. In fact, the State has indicated in response to the motion that it "takes no position on the motion" (affirmation of A. Rotondi, ¶ 3). As a result, these factors weigh in favor of the movant.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Fernandez v State of New York, 43 Misc 3d 1221 [A] [Ct Cl, 2014]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]). Prison inmates have a right to privacy " 'to the extent consistent with providing adequate medical care to [him] and with the safety and good order of the facility' " (Tatta v State of New York, 51 AD3d 1295 [3d Dept 2008], lv denied 11 NY3d 703 [2006], quoting 9 NYCRR 7651.26 [a] [7]). Public Health Law § 2782 (1) states, in pertinent part, the following: "No person who obtains confidential HIV related information in the course of providing any health or social service or pursuant to a release of confidential HIV related information may disclose or be compelled to disclose such information" except in limited circumstances which do not appear to apply here. "Confidential HIV related information" is defined to include " any information, in the possession of a person who provides one or more health or social services . . . which identifies or reasonably could identify an individual as having one or more of such conditions . . ." (Public Health Law § 2780 [7]). Here, movant alleges that P.A. Nesmith orally disclosed his HIV status in an area of the medical clinic occupied by other inmates and correction officers. This information, if true, constitutes "confidential HIV related information" on which a claim under Public Health Law § 2782 may be based (cf. Dawud H. v State of New York, 122 AD3d 1412 [4th Dept 2014]; see also 7 NYCRR 7.5). Consequently, the proposed claim alleging a violation of Public Health Law § 2782 has the appearance of merit.
To recover on a claim for negligent infliction of emotional distress, the circumstances must provide some indicia of reliability (Ornstein v New York City Health & Hosps. Corp., 10 NY3d 1 [2008]). As a matter of policy, therefore, liability for negligent infliction of emotional distress is limited to circumstances in which a breach of duty owed directly to the claimant results in psychological trauma accompanied by "residual physical manifestations" (Johnson v State of New York, 37 NY2d 378, 381 [1975]; citing, inter alia, Battalla v State of New York, 10 NY2d 237 [1961]; see also Justice v State of New York, 66 AD3d 1182 [3d Dept 2009]) or the circumstances are such that there exists a "guarantee that the claim is not spurious" (id. at 382). Such guarantees of genuineness have been found to exist in only limited circumstances, such as the negligent transmission of a death notification or the mishandling of a corpse (id.; see also Shipley v City of New York, 80 AD3d 171 [2d Dept 2010]; Estate of LaMore v Sumner, 46 AD3d 1262 [3d Dept 2007]; Massaro v O'Shea Funeral Home, 292 AD2d 349 [2d Dept 2002]). Movant here alleges no physical manifestations of injury as the result of the State's alleged breach of duty and the circumstances alleged are not the type that permit an inference of injury in the absence of physical manifestations (see Tatta v State of New York, supra; S.S. v State of New Yrk, UID No. 2006-018-497 [Ct Cl, Fitzpatrick, J., Jan. 5, 2006]; Johnson v State of New York, UID No. 2006-016-002 [Ct Cl, Marin, J., Jan. 25, 2006]; Hughes v State of New York, UID No. 2012-049-053 [ Ct Cl, Weinstein, J., Oct. 12, 2012]). Consequently, the proposed claim for negligent infliction of emotional distress lacks merit as a matter of law.
Lastly, there does not appear to be an alterative remedy to vindicate movant's interests.
Balancing the factors necessary for consideration on a late claim application, the Court concludes that granting movant's application for leave to serve and file a late claim would be an appropriate exercise of discretion with respect to his proposed cause of action under Public Health Law article 27-F. The Court finds to the contrary with respect to the proposed cause of action for negligent infliction of emotional distress.
Accordingly, movant's motion for late claim relief is granted with respect to his proposed cause of action under Public Health Law 27-F but denied with respect to his proposed cause of action for negligent infliction of emotional distress. Movant is directed to file and serve his claim in accordance with this Decision and Order and Court of Claims Act § 11 and § 11-a within 45 days of the date this Decision and Order is filed.
August 23, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, dated March 23, 2018;
2. Affidavit in support, sworn to March 23, 2018 with Exhibits 1 and 2;
3. Affirmation in response, dated May 9, 2018.