Tomasso v Finkelstein

[*1] Tomasso v Finkelstein 2009 NY Slip Op 51601(U) [24 Misc 3d 1223(A)] Decided on July 9, 2009 Supreme Court, Nassau County LaMarca, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 9, 2009
Supreme Court, Nassau County

Leonard M. Tomasso and Carmela Tomasso, Plaintiffs,

against

Harvey Finkelstein, M.D., Pain Care of Long Island, P.C. and Long Island Surgicenter, Defendants.



Leonard M. Tomasso and Carmela Tomasso, Plaintiffs,

against

County of Nassau and Nassau County Department of Health, Defendants.



7249/08



Alan W. Clark & Associates, LLC

Attorneys for Plaintiffs

650 Wantagh Avenue, Suite 1

Levittown, NY 11756

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP

Attorneys for Defendants Harvey Finkelstein, MD and Pain Care of Long Island, PC

110 Marcus Boulevard

Hauppauge, NY 11788

Lorna B. Goodman, Esq.

Nassau County Attorney

Attorney for Defendant County of Nassau and Nassau County Department of Health

One West Street

Mineola, NY 11501

Santangelo & Slattery, Esqs.

Attorneys for Defendant Long Island Surgicenter, Inc.

1800 Northern Boulevard

Roslyn, NY 11576

William R. LaMarca, J.

Counsel for plaintiffs in Action #

1 and Action #

2, LEONARDO M. TOMASSO and CARMELA TOMASSO, moves for an order, pursuant to CPLR §602, consolidating said actions for all purposes, amending the caption, and extending the discovery deadlines in Action #

1. Counsel for defendants in Action #

1, HARVEY FINKELSTEIN, M.D., PAIN CARE OF LONG ISLAND, PC. (hereinafter referred to as "PAIN CARE"), and LONG ISLAND SURGICENTER (hereinafter referred to as "SURGICENTER"), opposes the motion. Subsequently, counsel for defendants in Action #

2, COUNTY OF NASSAU and the NASSAU COUNTY DEPARTMENT OF HEALTH (hereinafter referred to as the "COUNTY" or "NCDOH"), oppose the motion for consolidation and cross-move for an order, pursuant to CPLR §3211(a)(7), dismissing plaintiffs' complaint in Action #

2 for failure to state a cause of action. Plaintiffs oppose the cross-motion, and the motion and cross-motion are determined as follows:

Background

These actions arise out of the well-publicized claims against Dr. HARVEY FINKELSTEIN and his pain management practices, where he allegedly exposed patients to the Hepatitis C Virus by utilizing contaminated and/or unsterile syringes and medications in administering epidural injections for the treatment of back pain. Moving counsel states that Action #

1 was commenced against defendants Dr. FINKELSTEIN, PAIN CARE and SURGICENTER, on April 18, 2008, and the complaint alleged professional negligence and medical malpractice during plaintiff's course of treatment, on March 22, 2002, April 10, 2002, April 24, 2002, November 12, 2002 and continuing through August 7, 2003. It is alleged that said defendants failed to maintain and establish proper infection control and sterile practices by reusing the same vials, medications, needles and/or syringes on different patients, including plaintiff LEONARDO M. TOMASSO, causing him to suffer severe and permanent injuries. It is further alleged that Dr. FINKELSTEIN made fraudulent representations and intentionally concealed his wrongdoing from the plaintiffs and is, therefore, equitably estopped from asserting the statute of limitations as a defense. It appears that, after issue was joined, a verified bill of particulars was served on August 5, 2008 and supplemented on December 16, 2008, and a Preliminary Conference held on August 14, 2008. Counsel states that only preliminary discovery has been exchanged and no depositions have been held to date.

As to Action #

2, moving counsel states that, after filing a Notice of Claim against the COUNTY and [*2]appearing at a 50-h Hearing on June 18, 2008, plaintiffs commenced Action #

2 against the COUNTY and the NCDOH, on December 18, 2008, and the complaint alleged negligence on the part of said defendants in failing to timely and properly investigate Dr. FINKELSTEIN, PAIN CARE and SURGICENTER, and in failing to timely notify plaintiffs of the possibility that LEONARDO M. TOMASSO had been exposed to the Hepatitis C. Virus while a patient of Dr. FINKELSTEIN. The complaint alleged that the NCDOH conducted an investigation of complaints brought against Dr. FINKELSTEIN between 2003 and 2007, and that plaintiff was first notified by the NCDOH, on November 10, 2007 and December 14, 2007, that he might be at risk for Hepatitis C. Thereafter the plaintiff tested positive for the Virus and it is alleged that the COUNTY and the NCDOH's negligence caused a delay in diagnosis and treatment and deprived plaintiffs from prosecuting a professional negligence action within the statute of limitations. Moving counsel states that after issue was joined, a bill of particulars was served, on February 11, 2009, but no discovery or depositions have been held to date.

In support of the motion for consolidation, counsel for plaintiffs asserts that there are common questions of law and fact in Action #

1 and Action #

2 with respect to the defendants infection control and sterilization practices in the administration of cervical epidural injections, the causation of Mr. TOMASSO's Hepatitis C infection, and the timeliness of the investigation and notification concerning plaintiff's potential exposure to Hepatitis C and the need for testing. Counsel contends that both actions will have common discovery and depositions and will utilize identical medial records and authorizations and that consolidation of the Actions will serve the interests of justice and judicial economy.

In opposition to the motion for consolidation, counsel for defendants in Action #

1, Dr. FINKELSTEIN, PAIN CARE and SURGICENTER, asserts that consolidation is not warranted because Action #

1 and Action #

2 have fundamental differences in law and fact and that consolidations would be highly prejudicial to said defendants and would bolster plaintiffs' claims against each defendant to their disadvantage. Counsel points out that Action #

1 is a medical malpractice action and Action #

2 alleges negligence by undue delay and failure to properly investigate. Counsel argues that the law in said actions are vastly different and to allow the jury to hear evidence about the COUNTY's investigation of Dr. FINKELSTEIN, PAIN CARE and SURGICENTER, would be prejudicial to said defendants and would impermissibly bolster any claims against them, citing Tarshis v Associated Dry Good Corp, et al, 232 AD2d 246, 648 NYS2d 298 (1st Dept. 1996). Counsel for defendants urges that consolidation is not warranted and that the motion be denied.

In further opposition to the motion and in support of the cross-motion to dismiss, counsel for defendants in Action #

2, the COUNTY and the NCDOH, states that, assuming that the allegations asserted in plaintiffs' complaint are true, there is no basis for imposing liability on the COUNTY for a negligent investigation because, under the New York Public Health Law, the NCDOH has qualified immunity when, in its discretion, it makes decisions on how to conduct the [*3]reporting and control of disease. Counsel contends that, since the decisions of the NCDOH entail the exercise of judgment, the COUNTY is entitled to immunity for those discretionary acts which promote the governmental function of the agency. Furthermore, counsel states that, because these acts are not ministerial in nature, no negligence may be imposed. Furthermore, counsel states that, absent a special relationship between the plaintiffs and the COUNTY, the actions taken by the NCDOH are solely governmental in nature and exist for the protection of the general public and not for the plaintiffs as individuals. It is the COUNTY's position that plaintiff's cannot show a special relationship with the COUNTY and the NCDOH and, therefore, the complaint must be dismissed, citing Lauer v City of New York, 95 NY2d 95, 711 NYS2d 112, 733 NE2d 184 (C.A. 2000); Pelaez v Seide 2 NY3d 186, 778 NYS2d 111, 8 NE2d 393 (C.A. 2004); Sebastian v State 93 NY2d 790, 698 NYS2d 601, 720 NE2d 878 (C.A. 1983); Abraham v City of New York, 39 AD3d 21, 828 NYS2d 502 (2nd Dept. 2007); Kelleher v Town of Southhampton, 306 AD2d 247, 760 NYS2d 235 (2nd Dept. 2003).

Indeed, counsel annexes the decisions of Court of Claims Judge W. Brooks DeBow in the case entitled Susan Lewis and Richard Lewis v. State of New York, (2008-038-615) and of Hon. Justice John Galasso in the case entitled Susan Lewis and Richard Lewis v. County of Nassau (2008-13067), which concerned another patient of Dr. FINKELSTEIN who sued the State and the County for the negligent investigation of the claims against Dr. FINKELSTEIN. Judge DeBow ruled that "when the State's conduct within its governmental capacity is discretionary in nature, the State will have immunity from liability for negligent acts, unless the injured party can demonstrate the existence of a special relationship' between the injured party and the State that gives rise to a duty running from the state to the injured party". Judge DeBow found that the investigation into Dr. FINKELSTEIN's patient roster and notification of the individuals of possible exposure was manifestly governmental, and dismissed the action. Justice Galasso applied the same principles in the County case and dismissed the action. Counsel for the COUNTY and the NCDOH herein, urges that plaintiffs cannot establish a special relationship with the COUNTY and the NCDOH, which are immune from liability absent a special relationship which has not been plead or proven. Counsel for said defendants states that the complaint against said defendants should be dismissed for failure to state a cause of action.

In opposition to the motion to dismiss, counsel for plaintiffs cites extensively from Abraham v City of New York, supra , which defines "special relationship" as follows: A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation (citations omitted).

Plaintiffs suggest that discovery has not yet commenced and that counsel is not presently in possession of the particular facts and evidence necessary to oppose the cross-motion, however, upon information and belief, evidence may exist which will demonstrate that the COUNTY specifically identified a number of patients of Dr. FINKELSTEIN who were [*4]exposed to the Hepatitis C Virus, including the above noted Lewis plaintiff herein and, therefore, a special class of persons was identified by the COUNTY who were not timely notified that they were exposed to a known dangerous health hazard. Counsel suggests that the failure of the COUNTY to perform the "ministerial" act of notifying said persons constituted negligence for which liability can be imposed. The plaintiffs believe that evidence is available and discoverable which will demonstrated that the COUNTY failed for two (2) years to perform its statutory duty to timely notify the plaintiff of his exposure to Hepatitis C.

The Law

Recently, on March 31, 2009, the Court of Appeals in McLean v City of New York, 12 NY3d 194, 878 NYS2d 238, 905 NE2d 1167 (C.A. 2009), set forth the rule of law to be applied in cases alleging negligent performance of a governmental function, as follows: We have long followed the rule that an agency of government 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. . . Such a duty , we have explained — " a duty to exercise reasonable care toward the plaintiff" — is "born of a special relationship between the plaintiff and the governmental agency".

Citing Pelaez v Seide, 2 NY3d 186, 778 NYS2d 111, 810 NE2d 393 (C.A. 2004), the McLean Court reiterated that [a] special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation.

To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action. To form a special relationship by voluntarily assuming a duty to an injured person, plaintiff must demonstrate (1) an assumption by the municipality thorough promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. McLean v City of New York , supra . In the case at bar, the Public Health Law relied upon by plaintiffs does not provide for governmental tort liability, nor did the COUNTY voluntarily assume a duty to plaintiff. Plaintiff cannot argue that he relied upon the affirmative actions and promises of the COUNTY when his complaint alleges that the COUNTY failed to take action. Nor did the COUNTY assume a positive direction and control in the face of a known, blatant and dangerous condition. As set forth in Abraham v City of New York, supra , this would require a showing that the COUNTY somehow affirmatively placed the plaintiff in harms way, which is not the case herein.

The McLean Court concludes that "[g]overnment action, if discretionary, may not be [*5]the basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general". Thus where no special relationship is established, there cannot be liability whether the actions at issue are characterized as ministerial or discretionary. McLean v City of New York, supra .

After a careful reading of the submissions herein, it is the judgment of the Court that plaintiffs cannot establish that a special relationship exists with the COUNTY and the NCDOH by any fair reading of the pleadings or the affirmations in support of the instant motion. Moreover, the "[m]ere hope that somehow the plaintiffs will uncover evidence that will prove their case" is no reason to require the COUNTY to further participate in this litigation. Kennerly v Campbell Chain Company, 133 AD2d 669, 519 NYS2d 839 (2nd Dept. 1987). To delay dismissal would be contrary to the general purpose of governmental immunity of not only providing immunity from liability but from defending law suits as well. See, Galante v County of Nassau, 186 Misc 2d 733, 720 NYS2d 325 (Supreme Nassau Col 2000).

Conclusion

Based on the foregoing, it is hereby

ORDERED, that the COUNTY and the NCDOH's cross-motion for dismissal of Action #

2 is granted; and it further

ORDERED, that, based on dismissal of Action #

2, plaintiff's motion for consolidation of Action #

2 with Action #

1 is denied, as moot.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: July 9, 2009

________________________

WILLIAM R. LaMARCA, J.S.C.

TO:

Alan W. Clark & Associates, LLC

Attorneys for Plaintiffs

650 Wantagh Avenue, Suite 1

Levittown, NY 11756

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP

Attorneys for Defendants Harvey Finkelstein, MD and Pain Care of Long Island, PC

110 Marcus Boulevard

Hauppauge, NY 11788

Lorna B. Goodman, Esq.

Nassau County Attorney

Attorney for Defendant County of Nassau and Nassau County Department of Health

One West Street [*6]

Mineola, NY 11501

Santangelo & Slattery, Esqs.

Attorneys for Defendant Long Island Surgicenter, Inc.

1800 Northern Boulevard

Roslyn, NY 11576