Opinion
Claim No. 137048
11-29-2022
M.V., Claimant, v. The STATE of New York, Defendant.
For Claimant: Mark David Shirian P.C., By: Mark Shirian, Esq., New York For Defendant: Letitia James, New York State Attorney General, By: Ellen Mendelson Esq., Assistant Attorney General
For Claimant: Mark David Shirian P.C., By: Mark Shirian, Esq., New York
For Defendant: Letitia James, New York State Attorney General, By: Ellen Mendelson Esq., Assistant Attorney General
David A. Weinstein, J. In the claim now before me, verified by counsel, claimant M.V. seeks damages against defendant State of New York for purported "severe emotional distress" that was allegedly caused when she learned that the New York State Department of Health (the "Department") Cancer Registry (the "Cancer Registry") had shared her name, address and 2020 breast cancer diagnosis with the New York Breast Cancer Study of the Roswell Park Comprehensive Cancer Center ("Roswell" or the "Cancer Center"), so that Roswell could contact M.V. to ask her if she would be willing to participate in a cancer research study (Claim ¶¶ 3-13). Claimant asserts that the sharing of such information violated her physician-patient privilege, and constituted intentional and negligent infliction of emotional distress.
According to the claim, M.V. first received notice that her information had been provided by the Cancer Registry to Roswell on July 12, 2021, when she received a letter from the Cancer Center asking her to take part in a breast cancer study (id. ¶¶ 13-15). Following receipt of this letter, claimant contacted Roswell and the Cancer Registry to tell staff that she did not want to participate (id. ). During her discussions with Cancer Registry staff, M.V. was advised that the Registry had previously mailed letters to her and her cardiologist inquiring if she wanted to opt out of having her information provided to the Cancer Center, although neither claimant nor her doctor had actually received such letters (id. ¶¶ 16-27). Claimant further asserts that the Cancer Registry's sharing of her name, address and cancer diagnosis with the Cancer Center was a violation of M.V.’s privacy because Roswell is "an unauthorized third-party" (id. ¶¶ 26-31).
Defendant now moves to dismiss the claim pursuant to CPLR 3211 and Court of Claims Act § 9, challenging the legal sufficiency of the pleading (Affirmation in Support of Ellen Mendelson, Esq., dated April 14, 2022 ["Mendelson Aff"] ¶¶ 2, 5, 23). Specifically, defendant argues that the physicians that treated claimant for cancer were statutorily required to report her cancer diagnosis and contact information to the Department's Cancer Registry, in accordance with section 2401 of the Public Health Law, for the purpose of monitoring cancer incidents, trends and patterns throughout New York, among other things (id. ¶¶ 7-9 at 3-4 ). Furthermore, defendant contends that such information is routinely shared with Roswell Park, to assist with conducting scientific research, and that such sharing is fully in accordance with statutory and regulatory authority (id. ¶ 10 at 5). To support these assertions, defendant offers the affidavit of Dr. Maria Schymura, the Department's Director of the Bureau of Cancer Epidemiology, Center for Community Health (Affidavit of Maria J. Schymura, Ph.D., sworn to on April 13, 2022 ["Schymura Aff"] ¶ 1). In this position, Dr. Schymura is responsible for overseeing the Cancer Registry, and promotes the use of its data for research in aid of cancer control efforts, which includes serving as the Commissioner of Health's designee for reviewing all research requests to use Cancer Registry patient information (id. ¶ 4).
Court of Claims Act § 9 sets forth the jurisdiction and powers of the Court of Claims, and presumably is cited here because defendant characterizes its motion as one challenging the Court's jurisdiction. (see Mendelson Aff ¶ 23). Whether that is a proper characterization of the motion is discussed infra at p 8.
Defendant's affirmation of counsel is mis-numbered, and paragraphs numbered 9 through 12 appear twice - first on page 4 and then again on page 5. Where necessary to clarify, the citation lists the page number as well as paragraph.
Dr. Schymura explains that pursuant to Public Health Law § 2401, all medical providers must notify the Cancer Registry of any patient with cancer or other malignant disease (Schymura Aff ¶ 6). The Registry then uses such information to process and report scientific findings concerning New Yorkers diagnosed with cancer (id. ). The Cancer Registry data is then used by programs within the Department, as well as advocacy groups, local governments, researchers and members of the public for public health planning, evaluation and research (id. ¶ 7). The information collected by the Registry is for statistical purposes only, and Dr. Schymura avers that the Registry has no physician-patient relationship with those patients who have had an abstract of their cancer medical record provided to the Department in accordance with section 2401 (id. ¶¶ 8-9).
Dr. Schymura notes that while the Cancer Registry is prohibited from divulging any patient information except as expressly authorized by the State's sanitary code under Title 10 of the New York Codes Rules and Regulations ("NYCRR"), Public Health Law § 2402 expressly permits the Commissioner of Health to disclose Cancer Registry patient information for the purpose of scientific studies and research (id. ¶¶ 10-11). Moreover, Schymura states that although the Department is not legally required to do so, before the Registry shares such information, it provides patients with an opportunity to exclude their information from use in cancer research efforts by sending opt-out letters to the patients and their physicians approximately six months after the patient's diagnosis (id. ¶¶ 12, 23).
In regard to the specifics of this case, Dr. Schymura attests that she reviewed the Cancer Registry's files concerning claimant, and determined that on March 11, 2021, the Registry received M.V.’s medical abstract information from St. Francis Hospital & Heart Center in Roslyn, New York, which also reported that claimant's managing physician was her cardiologist, Dr. Goldberg (id. ¶¶ 13-14, Ex C[1]-[2]). Upon receiving this information, the Registry sent a letter to Dr. Goldberg dated May 4, 2021, informing him that the Registry and Roswell were collaborating on a research study into the causes of breast cancer and factors that may influence breast cancer outcomes, and that claimant's medical history fit the study criteria (Schymura Aff ¶ 15, Ex C[3]). The letter further indicated that the Department wished to contact claimant to request her participation in the study, and asked Dr. Goldberg to apprise the agency of any reason why it should not reach out to claimant by filling out an enclosed form and returning it either by fax or mail (id. ). If Dr. Goldberg knew of no reason that the Department should not contact claimant, the letter advised, he was not required to respond to the correspondence (id. ).
Dr. Schymura states that the Department also sent a letter to claimant herself, dated June 3, 2021, advising her of the breast cancer study and providing her with an opportunity to decline participation (id. ¶ 16, Ex C[4]). This letter also explained that if the Cancer Registry did not receive her opt-out request within three weeks — which could be mailed or faxed to the Department — the Registry would then share claimant's contact information with the Cancer Center so it could contact her to see if she would be willing to assist in its breast cancer research (id. ).
According to Dr. Schymura, the Registry uses a database to track any research request letters that are returned in the mail as undeliverable (id. ¶ 17). If a physician's letter is returned, a "halt" flag is placed in the database with a comment to "Verify MD" along with the date the letter was returned (id. ) The patient's letter will then not be mailed until the treating physician's information is updated and a new letter is sent to this doctor (id. ). A similar process is used when a patient's letter is returned as undeliverable (id. ¶ 18). A "halt" flag is checked in the database with a comment to "Verify patient address," along with the date the letter was returned (id. ). Once this occurs, all correspondence to the patient is stopped, and his or her information is not released to the researcher (id. ). A new letter is sent if an updated address is found, but if no valid address is available, the patient is marked in the database as "Unable to Locate," and no patient information is released (id. ). In regard to Ms. V., Dr. Schymura states that neither the physician letter nor the patient letter were returned to DOH as undeliverable, and the database was not marked with any "halt" flags (Schymura Aff ¶ 19). Thus, claimant's information was shared with Roswell pursuant to the Cancer Registry's procedures and as expressly authorized by 10 NYCRR § 1.31 (id. ¶¶ 11, 19). The information was provided on July 8, 2021 through a secure file transfer that was e-mailed to the Cancer Center (id. ¶ 20). However, once claimant contacted the Cancer Registry on July 13, 2021, the Department added a "Do Not Contact" flag to her record, removed her from all future research inquiries, and notified Roswell to remove her personal identifying information from its files (id. ¶ 22).
This regulation provides for disclosure of confidential cancer information by the Cancer Registry. Once a medical provider reports the identity of any person diagnosed with cancer to the Registry pursuant to section 2401, the Registry may disclose a person's information "for the purpose of scientific studies and research when the State Commissioner of Health determines that substantial knowledge may be gained by such disclosure leading toward the reduction of morbidity and mortality" (10 NYCRR § 1.31 [a][1]). Upon receiving the patient information, "[t]he recipient shall limit the use of such information to the specific purpose for which such disclosure is made, shall not further disclose such information (except when the recipient is another cancer registry pursuant to laws applicable to such registry), and shall satisfy the State Commissioner of Health that the confidentiality of patient identity will be maintained" (id. ). Violations of this regulatory disclosure process may be criminally punished under Public Health Law § 229, and civil penalties are available under section 12 of the public Health Law (see id. § 1.31 [b]-[c]) — neither of which are at issue here.
Claimant opposes the State's motion to dismiss via affirmation of counsel, and argues that there are "issues relative to the duty that Defendant had towards the Claimant and any breaches of that duty" (Affirmation in Opposition of Mark D. Shirian, Esq., dated May 31, 2022 ["Shirian Aff"] ¶ 5). Specifically, claimant faults Dr. Schymura's affidavit for not providing any evidence as to how, when or by whom claimant's physician and patient letters were actually mailed (id. ¶¶ 37-44). Counsel further avers that "[c]laimant specifically denies that [either] she [or] her own physician received any letters from Defendant" (id. ¶ 38 at 6) . For this assertion, he cites the verified claim — which like the affirmation, is signed only by counsel (see id. , Ex A). No submission from claimant herself has been provided.
The page number is indicated, as the affirmation contains two paragraphs numbered 38.
Claimant's counsel further argues that the Department's Cancer Registry is subject to the rules governing physician-patient confidentiality (Shirian Aff ¶¶ 52-70). The entirety of his argument that a patient-physician relationship existed between claimant and defendant, State of New York, is as follows: "Claimant specifically alleges in her claim that upon information and belief, and pursuant to New York State Public Health Law, Article 24, Title 1, Section 240, a physician-patient relationship existed and exists between Claimant and Defendant" (id. ¶ 58). Although counsel provides no factual basis to support this conclusion, he asserts that discovery is necessary in the hope that he may be able to give some factual explanation for the contention that the State of New York served in some manner as his client's doctor (id. ¶¶ 70-73).
Finally, claimant's counsel requests that in the event this claim is dismissed that claimant be given leave to file an amended claim (id. ¶ 76). He does not intimate what such an amendment might entail.
In a reply affirmation from counsel, defendant notes that claimant has not provided any credible evidence to support the allegation — made solely by claimant's counsel without personal knowledge — that M.V. and her cardiologist never received the Cancer Registry's letters (Reply Affirmation of Ellen S. Mendelson, Esq., dated June 21, 2022 ["Reply Aff"] ¶ 3). The State also asserts that, as a matter of law, no physician-patient relationship could have existed between M.V. and the Department's Cancer Registry, as any information that may have been exchanged between these two parties was outside the context of any medical diagnosis, treatment, consultation or advice that a patient could have relied on, which is required to form a physician-patient relationship (Reply Aff ¶¶ 10-12).
Discussion
Defendant's submissions indicate that its motion to dismiss is premised on CPLR 3211, and although it does not cite a subpart, the supporting affidavit states that the claim should be dismissed for lack of subject matter jurisdiction, which would arise under CPLR 3211(a)(2). But the motion challenges the claim on the ground that the causes of action fail as a matter of law, and Dr. Schymura's affidavit shows that the material allegations made in support of them are not true, without indicating that the Court lacks jurisdiction to consider the merits of the claim in the first instance. The proper provision under which to consider such arguments is therefore CPLR 3211(a)(7), which concerns dismissal for failure to state a cause of action.
In a case, "[w]here the wrong ground is designated but other CPLR 3211(a) grounds apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice [which is not indicated here] " ( Miller v. Brunner , 164 A.D.3d 1228, 1230-1231, 84 N.Y.S.3d 264 [2d Dept. 2018] [internal quotation and citation omitted]; Plotch v. 435 East 85th Street Tenants Corp. , 187 A.D.3d 614, *23, 135 N.Y.S.3d 21 [1st Dept. 2020] [same]). I shall therefore treat the motion as one made under CPLR 3211(a)(7).
In counsel's opposing affirmation, claimant acknowledged that defendant's motion was made pursuant to CPLR 3211(a)(7) for failure to state a cause of action (Shirian Aff ¶ 37 at 6).
In deciding a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court can consider evidentiary material submitted by defendant in support of its motion to show "that a material fact as claimed by the [plaintiff] to be one [that] is not a fact at all and ... [that] no significant dispute exists" ( Mace v. Tunick , 153 A.D.3d 689, 690, 60 N.Y.S.3d 314 [2d Dept. 2017] ; see also Ahmed v. Consolidated Edison Co. of New York, Inc. , 59 Misc.3d 323, 325, 70 N.Y.S.3d 774 [Sup. Ct. Bronx County 2018] ["when evidentiary material [in support of dismissal] is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one").
For reasons set forth below, the claim on its face is deficient as a matter of law, and thus even before I consider the specific representations in the Schymura affidavit regarding the notice provided to M.V., it is apparent that it fails to state a claim. In addition, that affidavit conclusively demonstrates — and there is no cognizable evidence rebutting it by claimant — that the asserted absence of notice on which claimant's legal theory relies "is not a fact at all." As a result, the claim must be dismissed.
The Registry and the Roswell Cancer Center
The present claim, and the various theories of liability asserted therein, rely entirely on the allegation that the Department's Cancer Registry wrongfully released M.V.’s information to an "unauthorized third-party," the Roswell Cancer Center (Claim ¶¶ 26, 31). Since the statute makes clear that the transfer to Roswell for research purposes was authorized, there is no case here.
The degree to which Roswell Park should be considered a "third party" at all is subject to serious question. Public Health Law § 2420 provides that the Roswell Park Cancer Institute is "under the management and control of the [D]epartment [of Health]." At one time, this meant that Roswell was simply a part of DOH. In 1997, the Roswell Park Cancer Center Corporation was created as a public benefit corporation, to give Roswell "the flexibility required to accomplish its mission" (Public Authorities Law § 3551 ). The DOH Commissioner sits on the Board of the corporation, and coordinates with it, including via contracts provided for by law (Public Authorities Law §§ 3553, 3555[11], 3559 ). The precise nature of this relationship is not fleshed out in the papers. Suffice it to say that, at very least the sharing of information here was between two closely related governmental entities.
The transfer of information at issue arises out of Public Health Law § 2401(1), which provides: "Every physician ... shall give notice immediately but not later than one hundred eighty days of every case of cancer or other malignant disease coming under his or her care, to [DOH], except as otherwise provided." The purpose of the law is to facilitate research directed at improving cancer treatment; as the legislative sponsors of a significant expansion of the law creating the registry described the rationale for the statute: "Cancer is a profound health problem in New York State and research must be a priority to realize mortality rate declines" (Memo in Support, Chapter 642 of the Laws of 1997).
The legislative history is found at www.archives.nysed.gov/research/featured-topic-bill-and-veto-jackets.
The statute also provides protections for the confidentiality of such information. Specifically, it states that "[t]he reports of cancer cases made pursuant to the provisions of this article shall not be divulged or made public so as to disclose the identity of any person to whom they relate, by any person, except in so far as may be authorized in the sanitary code" ( Pub Health Law § 2402 ).
As explained in the affidavit from Dr. Schymura, under the relevant Sanitary Code provision, set forth in 10 NYCRR § 1.31, the Cancer Registry is authorized to release collected patient data for the purpose of scientific studies and research when the Commissioner of the Department of Health, in his or her discretion, "determines that substantial knowledge may be gained by such disclosure leading toward the reduction of morbidity and mortality" ( 10 NYCRR § 1.31 [a][1]). In short, the regulation vests the Health Commissioner with the discretion to share registry information for research purposes, based on the determination it would aid in the battle against cancer.
To the extent claimant takes issue with the Commissioner's discretionary release of claimant's information, such a challenge to the act of an administrative agency cannot be heard by the Court of Claims, but instead must be raised in a petition under Article 78 of the CPLR in the State Supreme Court (see Pratow Corp v. State , 148 A.D.3d 1065, 1065-1066, 48 N.Y.S.3d 622 [2d Dept. 2017] [a claim that requires the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims]).
The discretion afforded the Commissioner under 10 NYCRR § 1.31 is not tied to any notice made to or permission given by the patient at issue, and thus was permitted in this case whether or not M.V. and her cardiologist ever received the Registry's opt-out letters. As explained by Dr. Schymura — and made plain by the governing statutes and regulation — such letters are a courtesy, but are by no means required (see Public Health Law §§ 2401, 2402 ; 10 NYCRR § 1.31 [a][1]; Schymura Aff ¶ 12). Claimant has pointed to no legal provision to the contrary. Thus, the Registry's provision of claimant's information to Roswell Park was done in compliance with the sanitary code, and was therefore authorized — and none of the allegations in the claim contradict such a conclusion.
But even if M.V.’s and Dr. Goldberg's receipt of the Registry's opt-out letters were somehow necessary before the Cancer Registry could properly share claimant's information, Dr. Schymura's affidavit is sufficient for purposes of the present motion to rebut claimant's allegation that no such notice was provided. Her explanation of the Registry's routine course of business in mailing such letters, and its tracking of them to ensure they were delivered is sufficient evidence to establish that the letters at issue were actually mailed (see CIT Bank N.A. v. Schiffman , 36 N.Y.3d 550, 556, 145 N.Y.S.3d 1, 168 N.E.3d 1138 [2021] [proof of sender's routine business practice with respect to mailing documents is sufficient evidence of actual mailing]). But Schymura goes much further — she provides specific documentation, including the letters mailed to claimant and her doctors, and testimony that they were not returned as undeliverable. There is a legal presumption that letters sent through the mail are received, unless returned as undeliverable, and such presumption cannot be overcome by a self-serving denial of receipt from claimant or her counsel (see Assyag v. Wells Fargo Bank, N.A. , 186 A.D.3d 1303, 1306, 131 N.Y.S.3d 699 [2d Dept. 2020] ). And the present record lacks cognizable evidence of even such a conclusory denial. Claimant has presented nothing at all to rebut defendant's specific evidence, providing only the attorney's account of what claimant would say if counsel could only have managed to get an affidavit from his client.
Finally, even if there were some argument that the State had done something wrong here in sharing claimant's basic identifying information with Roswell Park so it could contact her as part of its efforts to find better ways to combat the disease, she has pled no cause of action which would entitle her to monetary damages on the facts as alleged. I explain below.
Physician-Patient Privilege
Claimant's first cause of action is for breach of physician-patient confidentiality. Counsel contends that there was a doctor-patient relationship between M.V. and Defendant — i.e., the State of New York (or at least the Department's Cancer Registry), that prevented the disclosure of claimant's information to the Cancer Center (Claim ¶¶ 36-40).
This assertion is ridiculous.
The statute governing such privilege, CPLR 4504, provides in relevant part that "a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity."
It is strange to have to say this, but the State of New York (or a data collection sub-department of a government agency such as the Registry) is not a "physician" as that term is commonly understood in the context of the physician-patient privilege (or as it is commonly or uncommonly understood in any other context), nor is it "authorized to practice medicine" or some other profession. Nor does the complaint assert that any of the State's employees or agents were involved in providing claimant with medical treatment. Further, there is no allegation that the State acquired the information at issue while attending claimant professionally — since it never attended claimant professionally. And the information was therefore not necessary for the State to act in a physician's capacity, since it did not do so, and the information at issue was only collected by DOH (from claimant's actual doctor) pursuant to a statutory data collection regime, not to provide medical care.
Under CPLR 4504 concerning the release of confidential patient information, the term "physician" is defined as "a person authorized to practice medicine" and, obviously, the Department's Cancer Registry is neither a person, nor is it a physician, or any of the medical provider organizations listed in this statute. None of the other categories set forth in CPLR 4504 apply here. I take judicial notice, for example, that the State of New York is not a podiatrist.
Indeed, the allegations in the claim establish that M.V. had no contact with the Cancer Registry until she called the agency to advise that she did not want her information used in a study to help combat breast cancer (Claim ¶¶ 13-26). Putting that aside, claimant does not, nor could she, contend that she received a medical diagnosis or sought medical treatment from the Cancer Registry, which is merely used by the Department to "collect[ ], process[ ] and report[ ] information about New Yorkers diagnosed with cancer" (Schymura Aff ¶ 6). Since the physician-patient privilege is limited to patient information obtained by a physician during the process of medical diagnosis and treatment (see Matter of Grand Jury Investigation in NY County , 98 N.Y.2d 525, 530, 749 N.Y.S.2d 462, 779 N.E.2d 173 [2002] ) — something (not to beat a dead horse) that is not alleged to have occurred between defendant and claimant in this case — it has no role to play here.
And even if such privilege did apply, it would be overcome by section 2402 of the Public Health Law and 10 NYCRR § 1.31(a)(1), which authorizes sharing of the identifying data at issue for research purposes. This privilege is "wholly a creature of statute" ( Camperlengo v. Blum , 83 A.D.2d 661, 662, 442 N.Y.S.2d 593 [3d Dept. 1981] ), and thus subject to other legislative enactments. The Legislature has specifically authorized the information sharing at issue here, and there is nothing in CPLR 4504 — putting aside that it is wholly inapplicable — that would overcome the legislative regime for sharing information about cancer. Try as he might, claimant's counsel can point to nothing which evinces a legislative judgment that the policies underlying the physician-patient privilege come into play here at all, and if they do, that they are of greater importance than those that facilitate sharing of information directed at improving cancer treatment (see Cole v. Panos , 128 A.D.3d 880, 883, 11 N.Y.S.3d 179 [2d Dept. 2015] ["courts may properly decline to enforce the physician-patient privilege where its invocation does not serve its policy objectives"]).
Nor can I buy claimant's counsel's assertion that he needs discovery to determine if the State of New York is claimant's physician (Shirian Aff ¶ 70). He does not say what such discovery would entail beyond engaging in a fishing expedition (see Long Island Medical Anesthesiology, P.C. v. Rosenberg Fortuna & Laitman, LLP , 191 A.D.3d 864, 142 N.Y.S.3d 194, 198 [2d Dept. 2021] ["the mere hope that discovery may reveal facts essential to justify opposition does not warrant denial of the motion"]). If there is some evidence that the State of New York or some arm thereof was functioning as Ms. V.’s doctor, and attending to her medical needs — as necessary for the privilege to attach — one would think she would know about it.
In sum, the cause of action based on physician-patient privilege is so profoundly inapplicable to the facts as alleged in the claim that it is difficult even to find the words to explain why this is so. Defendant's motion to dismiss this cause of action is therefore granted.
Negligent and Intentional Infliction of Emotional Distress
Claimant's third and fourth causes of action, for intentional and negligent infliction of emotional distress must also be dismissed. "[P]ublic policy prohibits the maintenance" of an intentional infliction claim against the State, so that cause of action is not going anywhere (see Brown v. State of New York , 125 A.D.2d 750, 752, 509 N.Y.S.2d 169 [3d Dept. 1986], appeal dismissed 70 N.Y.2d 747, 519 N.Y.S.2d 1034, 514 N.E.2d 392 [1987] ; see also Lynn v. State of New York , 33 A.D.3d 673, 675, 822 N.Y.S.2d 600 [2d Dept. 2006] [citations omitted] ["no claim lies against the State for intentional infliction of emotional distress"]).
As to the claim for negligent infliction, under the facts set forth in the pleading, an injury of "emotional distress" has not been established as a matter of law. Pursuant to New York law, a claim for emotional harm generally requires a showing of "contemporaneous or consequential physical harm" (see Iannotti v. City of Amsterdam , 225 A.D.2d 990, 639 N.Y.S.2d 537 [3d Dept. 1996] ). The exceptional circumstances in which a claim for negligent infliction of emotional distress may be asserted without physical injury are extremely limited. To date, courts have allowed suits to proceed on this ground only where claimant can show that defendant engaged in "conduct that unreasonably endangers the [claimant's] physical safety" ( Losquadro v. Winthrop Univ. Hosp. , 216 A.D.2d 533, 534, 628 N.Y.S.2d 770 [2d Dept. 1995] ), incorrectly informed claimant of a death (see Johnson v. State of New York , 37 N.Y.2d 378, 381-382, 372 N.Y.S.2d 638, 334 N.E.2d 590 [1975] ), negligently mishandled a corpse ( id. ), or negligently exposed claimant to the HIV virus (see Ornstein v. New York City Health & Hosps. Corp. , 10 N.Y.3d 1, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008] ). The allegations in the claim are that M.V., a breast cancer survivor, received a letter from the "New York Breast Cancer Study by Roswell Park Comprehensive Cancer Center" noting that she had a diagnosis of breast cancer and inquiring if she would be willing to participate in a study. (Claim ¶ 31). The claim further asserts that, upon M.V.’s receipt of the correspondence from Roswell, she was "shocked and upset" (id. ¶ 52).
An offer from a research institute to participate in a study to help fight cancer is not remotely analogous to those very limited circumstances where a negligent infliction of emotional distress claim against the State has been upheld. There is no viable claim for negligent infliction of emotional distress here.
Negligence
Finally, claimant throws in a boilerplate general negligence claim. Since only emotional harm is alleged, this is no different from the negligent infliction cause of action discussed above. Moreover, nothing in the claim sets forth the elements of duty and breach which are needed for such a cause of action (see Pasternack v. Laboratory Corp. of America Holdings , 27 N.Y.3d 817, 825, 37 N.Y.S.3d 750, 59 N.E.3d 485 [2016] ). All that is alleged is the sharing of information for a purpose which the Legislature sought to foster, in a circumstance specifically authorized by statute and regulation.
Amendment
Finally, counsel asks that any dismissal order include a provision allowing him to file an amended claim. In essence, this is an application seeking leave to replead (see Janssen v. Incorporated Vil. of Rockville Centre , 59 A.D.3d 15, 24, 869 N.Y.S.2d 572 [2d Dept. 2008] ). Such a motion is judged according to the standard for an amended pleading, i.e., it should be granted absent a showing of prejudice or surprise, unless "the proposed amendment is devoid of merit or palpably insufficient" ( id. ).
Nothing in the pleadings hints at how such an amended pleading would allege facts or legal theories that would transform the presently meritless claim into one which states a cause of action upon which relief can be granted. Claimant proffers no suggestion as to how such an amendment would solve the problems set forth above, and I am unable to conceive of any way this could be accomplished. The obstacles faced by claimant's counsel here are inherent in the case itself, and cannot be resolved by some tweak to the pleading. Put simply: New York law does not allow a claimant to recover monetary damages because certain limited information was provided by the Department of Health to an institute researching cancer treatment, so that the claimant could be invited to participate in studies aiding in such research, as permitted by the Legislature. Nothing claimant could present in an amended pleading would change that.
There is no allegation in the claim that any of M.V.’s information was released publicly; rather the claim is premised entirely on the assertion that the Cancer Center was given "unauthorized access" to her name, address and diagnosis (Claim ¶¶ 13, 31). It is hard to square counsel's argument that such limited disclosure caused claimant grave emotional harm with the fact that counsel has now, by the public filing of this lawsuit without any effort to make any filing under seal or to use a pseudonym for plaintiff, made publicly available far more details of claimant's medical history than are alleged to have been revealed privately by DOH to Roswell, including the specific treatments she underwent (see Claim ¶¶ 4-10). In order to ensure that claimant's privacy is not further sacrificed, a pseudonym has been used for purposes of this reported decision.
In view of the foregoing, it is
ORDERED that defendant's motion No. M-98105 be granted and that claim no. 137048 be dismissed for failure to state a cause of action.