In her amended claim filed October 2, 2009, claimant Kamilla Gorovets (claimant) alleges as follows. On or about September 16 and 17, 2008, while an employee of Bellevue Hospital Microbiology Lab, she took the bacteriology proficiency examination (exam) (also referenced as the proficiency test), issued by the Department of Health of the State of New York (health department). The exam required that she identify the organisms present in six separate specimens provided in Lyophilized Specimen Vials (vials). The vials did not display a label indicating that their contents were hazardous or otherwise dangerous. She completed the exam by analyzing the contents of the vials, which had already been cultured by her co-workers and placed with various media in petrie dishes.

She alleges that approximately two weeks later she began to experience weakness, fever, severe headaches, nausea and a sore throat, and then developed neck pain and a rash. Her husband, who asserts a derivative claim, brought her to Maimonides Medical Center, where she was admitted. She lapsed in and out of consciousness and has little memory of what occurred during that time. She remained hospitalized until October 13, 2008, and was discharged with a diagnosis of Meningococcal Septicaemia. The results of her exam revealed that sample number 5 contained cerebral spinal fluid and tested positive for N. Meningitis. The health department telephoned her following her discharge and advised that the specific organism with which she was diagnosed matched the sample organism in the exam.

Specifically, she alleges that defendant the State of New York (State) was negligent, careless and reckless in failing "to affix to the vial containing the Meningococcal Meningitis organism a hazardous warning label" and that the State "failed to properly warn claimant . . . of

the hazardous nature of the specimen vial containing the aforesaid organism."

The State, by verified answer to amended claim filed October 26, 2009, denied the allegations and asserted six affirmative defenses. The fourth affirmative defense alleges immunity, in that defendant's actions were privileged as they were discretionary determinations made by agents or employees acting within the scope of their official duties as public officials. The fifth affirmative defense alleges that the "acts complained of are privileged in nature in that they are activities mandated by statute in the course of the defendant's business for which the defendant has an absolute or qualified privilege."

Discovery ensued, including paper discovery and depositions of claimant and an employee of the health department.

The State now moves for summary judgment, attaching as exhibits the pleadings, the deposition testimonies of claimant and a health department employee, and the test form/instruction sheet. Claimants oppose, relying on claimant's affidavit, the deposition testimonies, their attached memorandum of law and a print-out from the health department website regarding meningitis. Claimants also cross-move to dismiss the fourth and fifth affirmative defenses. The State opposes the cross-motion and replies. The motion and cross-motion were submitted on December 29, 2010, and oral argument was held on February 8, 2011.

The State argues that it is entitled to summary judgment because the administration of the exam is a matter of discretionary conduct by the health department, pursuant to Public Health Law § 576, for which the State is entitled to absolute immunity. The State additionally argues that, in the event the conduct was ministerial in nature, the claimant has not and cannot establish [*2]

the requisite elements of duty or the existence of a special relationship. Additionally, the State argues that claimant, as an experienced bacteriologist, was a "knowledgeable user" and therefore the State is not liable. The State also argues that claimant cannot show proximate cause, as claimant admitted that she never saw the vial, that the vial was opened and distributed to claimant by an intervening party, and that clamant failed to take proper safeguards by not wearing a mask and by failing to immunize herself against the risks of contracting a disease/ organism commonly handled by the laboratory where she worked.

Claimant argues that the State is not entitled to immunity, as it was acting in a proprietary and not governmental function. She asserts that the administration of the exam "is in connection with a quality assurance function of a clinical laboratory, the purpose of which is the diagnosis and treatment of disease, a proprietary function for which there is no governmental immunity." Accordingly, the State is subject to the same standard of care as a private entity for purposes of determining negligence.

She additionally argues that if the State is acting in a governmental function, then the "State still owed the claimant a duty of care by a special relationship or an assumed duty by undertaking to distribute an ultra hazardous micro-organism without proper warning." Claimant asserts that the State created the sample, was in exclusive possession and control of the content, and did not provide any information as to its composition, strain, concentration or components. She argues that she "was exposed to an unreasonable risk of harm" and the State "cannot insulate itself by the mantra of immunity." She attests that while she has had occasion to handle specimens that later turned out to contain the meningitis bacteria, the only time she

contracted menincological meningitis was from specimen five, that was apparently a higher concentration of this bacteria.

Claimant asserts that it is not disputed that the test was administered pursuant to the authority granted to the health department by the Public Health Law, and that the health department designed the test, determined what bacteria/organism would be subject to identification, and supplied the organisms to the laboratory.

Claimant asserts that the State's other arguments are unavailing and fail to show that the State is entitled to summary judgment. For example, claimant argues that the fact that she did not herself open the vial is of no moment, as the testing protocol is a collaborative effort and not every worker has to open the vial. Similarly, the "vague and non-specific information given to claimant, to take appropriate precautions' . . . begs the question of appropriate to what", and that the question of the adequacy of the warnings is a factual one. Claimant further points to portions of the deposition of the State's witness: three or four of the health department employees decide the composition of the five samples; all five of the samples contained a bacteria that was considered dangerous; a couple of times they had information that someone may have gotten sick with the samples, one such example being a GI illness; they try to vary the samples but the samples are something most of the labs used by the State will process; the appropriate regulations of the International Air Transport Association with regard to shipment of infectious substances must be followed.

Claimant also cross-moves to dismiss the defense of immunity, as asserted in the fourth and fifth affirmative defenses, arguing that the State is not entitled to immunity here and that the

act was of a ministerial, proprietary nature. [*3]

The State opposes the cross-motion, arguing that the cases relied upon by claimant are inapposite and that the activities here are discretionary in nature.

It replies that claimant mischaracterizes the Public Health Law's statutory scheme which creates, defines and empowers the health department, that the activity here was discretionary in

nature, and that under these circumstances there was nothing that warranted a duty to warn.

Additionally, the State asserts that claimant failed to raise any material issue of fact that would defeat its motion, for example, with respect to proximate cause.

On a summary judgment motion, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case". Winegrad v New York Univ. Med.Ctr, 64 NY2d 851, 853. The showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562), and failure to make this showing "requires denial of the motion, regardless of the sufficiency of the opposing papers". Winegrad, 64 NY2d at 853.Once the proponent has made the showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that a material issue of fact exists which requires a trial. Alvarez v Prospect Hosp, 68 NY2d 320, 324.

"Summary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law... [W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided". Andre v Pomeroy, 35 NY2d

361, 364. The role of the court is issue finding, not resolution, and the court must examine the proof in a light most favorable to the party opposing the motion. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395. Summary judgment is a drastic remedy and should be granted only when there are no issues of fact and the case can be dismissed as a matter of law. Id.

The Court finds that there is no dispute as to the material facts upon which the Court now issues its Decision and Order. The State met its prima facie burden and demonstrated, through admissible evidence, that there are no remaining material issues of fact in dispute and that it is entitled to dismissal as a matter of law. Claimant failed to overcome this prima facie showing, To the extent claimant met her burden, the State defeated that showing.

As demonstrated by the State and contrary to claimant's argument, the act here was discretionary and not ministerial. It involved the exercise of reasoned judgment which could typically produce different acceptable results, and involved policy determinations. "[D]iscretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result." Tango v Tulevech, 61 NY2d 34, 41. Therefore, the State is entitled to absolute immunity for the allegedly negligent acts. See e.g. McLean v City of New York, 12 NY3d 194; Arteaga v State of New York, 72 NY2d 212; Tarter v State of New York, 68 NY2d 511; Tango, 61 NY2d 34.

Even assuming negligence, and the Court does not reach that issue, "[a] public employee's discretionary acts-meaning conduct involving the exercise of reasoned judgment-may not result in the municipality's liability even when the conduct is negligent". Lauer v City of New York, 95 NY2d 95, 99. "Government action, if discretionary, may not be a basis for liability". McLean, 12 NY3d 194, 203.

The statutory scheme, the policy considerations thereof, the nature of the act and the [*4]judgment or discretion involved in the State action demonstrate that the State was acting in a governmental function and that its act was discretionary in nature. The deposition testimony of the State's employee further demonstrates the exercise of reasoned judgment. For example, the State's witness was asked whether, "when deciding what organisms to use in this test" consideration was given in "placing a hazard label on the containers themselves, specifically sample 5" [the cerebral spinal fluid containing the meningitis sample] to indicate "hazardous, hazardous material, extra careful, caution, anything like that". Deposition Testimony, page 18, lines 2-8. The witness replied "No", because "everything in a bacteriology lab is hazardous" and "[i]f you are going to handle it in a bacteriology lab you have to take precaution for anything". Id. at 18, lines 9-15. The witness further testified as to the different precautions taken, and that each laboratory has their own protocol for safety and how their employees handle the specimen type. Id. at 18, lines 16-24. The witness also testified as to the decision process, how and why the five different samples were chosen for this test (Id. at pages 13-17) and, generally, how and why the five samples are chosen. Id. at pages 9-13.

Contrary to claimant's argument, the State was not acting in a proprietary function. Claimant is incorrect in its characterization of the State activity as that of a quality assurance body or a medical provider. To determine whether an act is governmental or proprietary in

nature, one looks to "the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred". Miller v State of New York , 62 NY2d 506, 513. "At one end of the continuum lie purely governmental function undertaken for the protection and safety of the public pursuant to the general police powers' ". Sebastian v State of New York, 93 NY2d 790, 793 ( citations omitted). "On the opposite periphery lie proprietary functions in which governmental activities essentially substitute for or supplement traditionally private enterprises' ". Id . The activity here is properly located at the governmental end of the spectrum, and, therefore, the State may not be held liable for any alleged negligence. The act here was not similar to, for example, when "the State operates housing, it is held to the same duty as private landlords in the maintenance of physical security devices in the building itself." Miller v State of New York, 62 NY2d 506, 508. The acts here were performed and based on the purposes and policy that the State Public Health Law seeks to accomplish.

In light of the discretionary governmental act here, and contrary to claimant's argument, claimants' cited cases regarding duty to warn and launching an instrument of harm are not applicable here. Similarly inapplicable are the cited federal cases where the actions of federal or state officials did not merit protection under the discretionary function exception to the Federal Tort Claims Act because the specific act involved was not discretionary and the judgment or choice in question was not grounded on public policy considerations or susceptible to policy analysis.

As the act here is governmental and discretionary, liability does not lie for any alleged negligence. This issue is dispositive of this claim. Thus, the Court does not reach other

arguments made by both sides, such as the issues of special duty, adequacy of warnings, proximate cause, and knowledgeable user.

In light of the granting of the State's summary judgment motion and the resulting dismissal of this claim, the Court denies as moot claimant's cross-motion to dismiss the fourth and fifth affirmative defenses. [*5]

Accordingly, it is

ORDERED that defendant's motion is granted and the claim is dismissed.

New York, New York

March 24, 2011

_______________________________

FAVIOLA A. SOTO

Judge of the Court of Claims