DECISION Claimant seeks damages for negligent infliction of emotional distress based upon the alleged emotional harm that claimant sustained during his incarceration at Eastern NY Correctional Facility after an incident that occurred on February 26, 2015. Claimant testified on his own behalf and Claimant’s Exhibits 1 and 3 were received into evidence. Claimant did not present any other witnesses to testify at trial. Claimant testified that on February 26, 2015, claimant and his wife were scheduled to participate in a Family Reunion Program (FRP) visit. Claimant described FRP visits as family or conjugal visits where he and his wife would be permitted to have private visitation in a trailer from Friday through Sunday. Claimant and his wife had FRP visits approximately three times a year since 2009. Claimant testified that he and his wife had been together since they were 15 years old. They were married at age 19 and, at the time of trial, they had been married for nearly 10 years. Claimant stated that he had been tested for STDs (sexually transmitted disease) after they were first married and prior to the start of their FRP visit in 2009 to establish that they were both faithful to their marriage. Claimant was tested a second time after the first couple of FRP visits in 2009 and was not tested again. On February 26, 2015, claimant noticed that his wife was not happy to see him as she usually was upon arriving for an FRP visit. When claimant and his wife entered the trailer, she threw an envelope at him. The envelope contained information, purportedly from claimant’s file, that claimant had tested positive for genital herpes, a sexually transmitted disease (STD). Claimant’s wife was given the written information by an administrator at the facility. Claimant’s wife was crying and upset. Claimant argued with his wife and questioned whether she had been unfaithful to him and had transmitted the STD to him. Claimant was very upset and agitated. He was also confused because he had not submitted to a blood test for STDs since 2009 and he wanted to know why his records indicated that he had tested positive for an STD. Claimant was permitted to call a facility administrator, Ms. Williams. Williams, however, did not have any knowledge of the contents of the envelope or any information about claimant’s health. Claimant asked Williams to find someone to clarify the situation. At an unspecified time thereafter, Ms. Williams and a nurse arrived at the FRP trailer that same morning. The nurse knelt down before claimant’s wife and apologized, stating that the information about claimant testing positive for an STD was a mistake. The nurse explained that there had been an emergency and that claimant’s paperwork and another inmate’s paperwork had gotten mixed up. She clarified that claimant did not have an STD.1 The nurse also apologized to claimant and the correction officer present at the scene tried to get claimant to calm down. Thereafter, everyone left and claimant and his wife continued their FRP visit. Claimant attempted to reconcile with his wife after what had occurred and apologized for accusing her of infidelity. He wanted to move forward and put the incident behind them. He testified that his wife was distant and did not want to have physical contact with him. The second day, she became more receptive, but their relationship was strained due to the incident. Thereafter, she required that claimant continually be tested for STDs and use prophylactic protection during their FRP visits. Claimant’s wife moved to California in the summer of 2015. However, she continued to participate in the FRP visits approximately three times a year for the ensuing four years. On cross-examination, it was elicited that claimant and his wife had three FRP visits in 2019, the last one of which was within weeks before the trial of this matter. At the conclusion of claimant’s case, the State moved to dismiss the claim for failure to make out a prima facie case of negligent infliction of emotional distress based upon the facts presented at trial. Claimant opposed the motion. The Court reserved decision on the motion. The State did not present any witnesses. The State’s Exhibits A and B were received in evidence. The State’s Exhibit B is consistent with claimant’s testimony regarding the frequency of the FRP visits claimant had with his wife over the years post-incident. At the conclusion of trial, the State renewed its motion to dismiss and claimant opposed the motion. The Court reserved decision on the motion. Analysis The Courts have been reluctant to recognize negligence claims when the damages are solely emotional. However, the Court of Appeals has recognized the right to recover for emotional harm, where no physical injury occurred, when the mental injury is a direct, rather than a consequential result of the breach (Kennedy v. McKesson Co., 58 NY2d 500, 504-506 [1983]), and the claim possesses some guarantee of genuineness (Ferrara v. Galluchio, 5 NY2d 16, 21 [1958]; see Ornstein v. New York City Health & Hosps. Corp., 10 NY3d 1 [2008]). Those cases present narrowly circumscribed circumstances, such as incorrectly notifying plaintiff that her mother had died (Johnson v. State of New York, 37 NY2d 378, 382 [1975]), failing to recover plaintiff’s daughter’s body for 11 days (Lando v. State of New York, 39 NY2d 803 [1976]) and failing to properly lock a ski-lift belt (Battalla v. State of New York, 10 NY2d 237 [1961]). In the absence of such special circumstances, the guarantee of genuineness requires that the breach of the duty owed to claimant must have endangered claimant’s physical safety or caused fear for claimant’s physical safety (see Taggart v. Costabile, 131 AD3d 243 [2d Dept 2015]; Jason v. Krey, 60 AD3d 735 [2d Dept 2009]; Losquadro v. Winthrop Univ. Hosp., 216 AD2d 533 [2d Dept 1995]). “[B]y mandating some guarantee of the genuineness of the emotional injury, the Court of Appeals has recognized a standard that is effective to filter out petty and trivial complaints and to ensure that the alleged emotional distress is real” (Taggart, 131 AD3d at 253). While no case has been found presenting the same facts as those before the Court in this matter, in Schulman v. Prudential Ins. Co. of Am. (226 AD2d 164 [1996]), the First Department held that a claim for negligent infliction of emotional distress could be maintained by a patient who had submitted to a blood analysis and then received an erroneous report that he had tested positive for HIV. The First Department reasoned that “the erroneous report of an HIV positive finding following blood analysis is a ‘special circumstance’ that provides assurance that a claim to recover for negligent infliction of emotional distress as a result of the erroneous report is genuine and not spurious [emphasis added]” (id. at 164). The case at bar is distinguishable from Schulman because the erroneous report that claimant tested positive for an STD did not occur “following blood analysis” because claimant had not submitted his blood for analysis or been tested for an STD since 2009 (id.). Additionally, Schulman involved a positive finding of HIV, which presented different implications, treatments and prognoses, especially in the 1990′s, from the implications, treatments and prognoses for testing positive for genital herpes. Also, the erroneous report in this matter was expeditiously corrected that same morning. Upon consideration of all the evidence presented at trial, including the testimony of claimant and the exhibits received in evidence, the Court makes the following findings. While claimant established that on February 26, 2015, the State erroneously informed claimant’s wife that claimant had tested positive for genital herpes, an STD, the Court further finds that the evidence established that claimant had not submitted his blood for analysis since 2009 and thus he had reason to suspect the validity of the report. Once claimant called for clarification of the erroneous report, it was rectified almost immediately. In that regard, a nurse and an administrator promptly appeared at the FRP trailer and the nurse apologized profusely to both claimant and his wife and explained that she had mistakenly mixed up claimant’s file with another inmate’s file. The nurse further clarified that claimant had not tested positive for an STD. Additionally, the facts, as testified to by claimant and supported by the State’s Exhibit B, show that after the incident, despite any purported strain on the marital relationship, claimant and his wife remained married and regularly participated in FRP visits, even after she moved to California in 2015. Accordingly, on the facts presented and absent any evidence of “objective manifestations” of emotional harm resulting from the State’s erroneous report (Johnson, 37 NY2d at 383), the Court finds that the facts of this matter do not fall within the parameters of the narrowly circumscribed circumstances recognized by the Court of Appeals as having a guarantee of genuineness of the emotional injury alleged. Additionally, claimant’s conclusory and self-serving testimony is insufficient to establish that the State’s erroneous report was a competent producing cause of claimant’s alleged emotional harm (see Ornstein, 10 NY3d at 7 [where supporting medical evidence is lacking a trial court may preclude recovery for emotional distress]; Cleveland v. Perry, 175 AD3d 1017 [4th Dept 2019] [no guarantee of genuineness as to the mental or emotional injuries]; Karin K. v. Four Winds Hosp., 64 AD3d 686 [2d Dept 2009] [plaintiff failed to demonstrate any guarantee of genuineness of her claims of mental or emotional injury]; Millan v. City of New York, 16 AD3d 290 [1st Dept 2005] [plaintiff's conclusory allegations were not supported with medical evidence so as to guarantee the genuineness of her claim]; Nordbo v. Lutheran Med. Ctr., 184 Misc 2d 423 [App Term, 2d Dept 2000] [plaintiffs failed to produce any medical proof that the incident was a competent producing cause of the emotional injuries complained of and the Court would not hold that an erroneous communication of the death of a patient carries with it a presumption of actionable emotional distress]). Claimant, unlike the plaintiff in Johnson, who was incorrectly notified that her mother had died, did not present objective manifestations of emotional harm. In Johnson, plaintiff exhibited excessive anxiety in her inability to return to work for 11 days and, upon her return to work, she could not function properly. She also had difficulty concentrating, was irritable, and her psychiatrist testified that she appeared to be depressed because she cried easily, spoke rapidly and exhibited obvious perspiration. In the case at bar, the record is devoid of any such objective manifestations of the alleged emotional harm. Accordingly, defendant’s motion to dismiss made at the conclusion of the trial is GRANTED and the claim is hereby dismissed. LET JUDGMENT BE ENTERED. Dated: October 25, 2019 White Plains, New York
