Braverman v. Bendiner & Schlesinger, Inc.

CourtNew York Supreme Court Appellate Division
Writing for the CourtREINALDO E. RIVERA
Citation990 N.Y.S.2d 605,2014 N.Y. Slip Op. 05618,121 A.D.3d 353
PartiesLaurie BRAVERMAN, etc., et al., appellants, v. BENDINER & SCHLESINGER, INC., et al., respondents.
Decision Date06 August 2014

121 A.D.3d 353
990 N.Y.S.2d 605
2014 N.Y. Slip Op. 05618

Laurie BRAVERMAN, etc., et al., appellants,
v.
BENDINER & SCHLESINGER, INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 6, 2014.


[990 N.Y.S.2d 607]


Robert N. Isseks, Middletown, N.Y., and Bloom & Bloom, P.C., New Windsor, N.Y. (Kevin Bloom of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for respondent Bendiner & Schlesinger, Inc.


Nicoletti, Gonson, Spinner & Owen, LLP, New York, N.Y. (Michael S. Brown and Edward S. Benson of counsel), for respondent Daytop Village, Inc.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, THOMAS A. DICKERSON, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

SKELOS, J.

In Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 6–7, 977 N.Y.S.2d 676, 999 N.E.2d 1121, the plaintiff sought to recover damages from a drug testing laboratory, alleging that it negligently reported his drug test as positive. The Court of Appeals, in affirming an opinion and order of this Court ( see91 A.D.3d 79, 934 N.Y.S.2d 183), recognized that a drug testing laboratory had a duty to the subject of a drug test to adhere to relevant professional standards in performing such testing. The plaintiffs in this case similarly claim that they suffered adverse consequences when the positive results of drug tests, performed by the defendant Bendiner & Schlesinger, Inc. (hereinafter Bendiner), were reported to drug treatment courts by the defendant drug treatment center, Daytop Village, Inc. (hereinafter Daytop). However, the plaintiffs in this case do not take issue with the manner in which the tests were performed or challenge the accuracy of the results reported. Rather, the plaintiffs assert that the testing met only clinical, not forensic standards, and that, accordingly, the results should not have been admitted as evidence in court. They argue that Bendiner and Daytop had a duty to label the drug test results or provide a disclaimer indicating that the results were only to be used for clinical, not forensic, purposes. We find this to be an unwarranted expansion of the duty set forth in Landon, and, therefore, affirm the judgment in favor of Bendiner and Daytop, dismissing the complaint.

The plaintiff Laurie Braverman was a respondent in a child protective proceeding commenced in the Family Court, Rockland County, and the plaintiff Cindy Lohmeyer was a defendant in a criminal proceeding commenced in the County Court, Rockland County. Both plaintiffs have well-documented histories of substance abuse, and

[990 N.Y.S.2d 608]

were brought under the jurisdiction of the drug treatment courts established in Rockland County ( see generally22 NYCRR 43.1, 143.1–143.3). The plaintiffs each sought, and were granted, conditional supervision by these courts, according to which they voluntarily entered into a contract to abide by certain specified terms and conditions, including: abstinence from substance abuse, enrollment in a substance abuse treatment program, submission to random drug and alcohol testing, and the release of information from the treatment facility, such as the results of drug testing, to the supervising court or an ancillary agency. The plaintiffs each enrolled in a program at Daytop, a drug treatment center. They executed contracts and release forms, pursuant to which they acknowledged that enrollment at Daytop was voluntary, and authorized the release of information from Daytop to the relevant drug treatment court or its ancillary agencies.

Daytop contracted with Bendiner, a laboratory certified by the New York State Department of Health (hereinafter the NYSDOH), to perform specified drug testing. To the extent applicable here, the contract required Bendiner to perform clinical drug testing on oral fluid samples obtained by Daytop from its clients. The contract did not require Bendiner to perform forensic drug testing on the oral fluid samples. According to the permit issued by the NYSDOH under which Bendiner was operating at the time the subject testing was performed and reported, clinical testing was intended to “assist medical professionals in patient management,” whereas forensic testing “generate[s] results in a manner intended to insure acceptance into evidence in a court of law.” Among other things, forensic testing involves “protocols for specimen chain-of-custody and laboratory security.” The contract between Bendiner and Daytop prohibited Bendiner from reporting the results of its drug testing to any entity other than Daytop, and further provided that Bendiner would only perform confirmatory testing upon a specific request made by Daytop.

In conformance with the contract, Bendiner performed oral fluid testing on specimens collected by Daytop from the plaintiffs. The specimens obtained from the plaintiffs were positive for certain illegal drugs. Bendiner reported the results to Daytop, and, at Daytop's request, Bendiner performed confirmatory gas chromotography and mass spectrometry testing. Daytop then reported the confirmed positive results of the testing done on Braverman's sample to the drug treatment part of the Family Court, Rockland County, also known as the Rockland County Family Treatment Court. As a result, a violation petition was filed against Braverman, and the return of her children to her custody was delayed for approximately five months. Daytop also reported the confirmed positive results of the testing done on Lohmeyer's sample to the drug treatment part of the County Court, Rockland County, also known as the Rockland County Drug Court. Consequently, Lohmeyer's participation in the drug treatment court program was terminated, and she was incarcerated for approximately five months.

The plaintiffs subsequently commenced this action to recover damages against Bendiner and Daytop. As clarified by the plaintiffs' counsel during the course of the litigation, the plaintiffs do not challenge the manner in which Bendiner performed its clinical oral fluid testing. The plaintiffs acknowledged that Bendiner performed the testing “in a manner suitable for clinical purposes,” and that the “validity of its testing procedures” were not at issue. The plaintiffs alleged, however, that Bendiner was required, and failed, to label its

[990 N.Y.S.2d 609]

oral fluid test results so as to indicate that the results were to be used for clinical purposes only. The plaintiffs relied on the opinion of Terry D. Hall, Ph.D., who averred that the reports of the test results issued by Bendiner were required to include the following disclaimer:

“For Diagnostic Treatment Plan Development and Counseling Purposes Only: Not for Workplace or Forensic Purposes.”

The plaintiffs further contended that Daytop was required to provide a similar disclaimer when reporting the results to the drug treatment courts. At its essence, the plaintiffs' contention is limited, to wit: in the absence of such a label or disclaimer, the defendants failed to exercise reasonable care in reporting the positive drug test results.


Bendiner and Daytop separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. They argued that they had no duty to the plaintiffs to provide a label or disclaimer indicating that the results were to be used only for clinical purposes, and, in any event, that any breach of such a duty was not the proximate cause of the plaintiffs' injuries.

The Supreme Court granted those branches of the defendants' motions which were for summary judgment dismissing the complaint insofar as asserted against each of them. Relying on this Court's opinion and order in Landon, 91 A.D.3d 79, 934 N.Y.S.2d 183, the Supreme Court concluded that Bendiner owed a duty of care to the plaintiffs, and noted that there was no authority establishing a “corresponding or analogous duty on the part of Daytop.” The Supreme Court did not determine whether or not Daytop had any such duty. Further, the Supreme Court did not make a finding that Bendiner breached a duty of care. Rather, it held that, in the event that there was any such wrongdoing by Bendiner or Daytop, any breach of a duty of care was not a proximate cause of the plaintiffs' alleged damages. In this respect, the Supreme Court determined that the unforeseeability of the outcome of the judicial proceedings in the neglect proceeding against Braverman and in the criminal action against Lohmeyer, particularly with respect to the admissibility of the drug test results, broke the chain of legal causation.

We agree that the defendants' motions should have been granted and the complaint dismissed, but for a reason different from that relied upon by the Supreme Court. We conclude, more fundamentally, that Bendiner did not have a duty to the plaintiffs to label its drug test results with a disclaimer, and that Daytop, when reporting the results to the drug treatment courts, did not have a duty to the plaintiffs to provide a disclaimer indicating that the positive test results were to be used for clinical purposes only. Thus, we affirm the judgment on that basis, without reaching the secondary question of proximate cause.

It is axiomatic that the breach of a duty owed by a defendant to a plaintiff is essential to recovery in a negligence action ( see Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019;Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99). In the absence of a legislative declaration, it is for the courts to determine, as a matter of policy, “whether the risk to which one person exposes another is within the protection of the law” and if so, to declare the existence of a duty ( De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406;see Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184;

[990 N.Y.S.2d 610]

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12 practice notes
  • Pasternack v. Lab. Corp. of Am. Holdings
    • United States
    • New York Court of Appeals
    • 30 Junio 2016
    ...to an indeterminate class of persons conceivably injured’ by its negligent acts”]; see also Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 355–357, 990 N.Y.S.2d 605 [2d Dept.2014], lv. denied 24 N.Y.3d 913, 2 N.Y.S.3d 71, 25 N.E.3d 986 [2015] [plaintiff drug treatment program pa......
  • Pasternack v. Lab. Corp. of Am. Holdings
    • United States
    • New York Court of Appeals
    • 30 Junio 2016
    ...to an indeterminate class of persons conceivably injured’ by its negligent acts”]; see also Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 355–357, 990 N.Y.S.2d 605 [2d Dept.2014], lv. denied 24 N.Y.3d 913, 2 N.Y.S.3d 71, 25 N.E.3d 986 [2015] [plaintiff drug treatment program pa......
  • Castillo v. Port Auth. of N.Y. & N.J., 2016–01320
    • United States
    • New York Supreme Court Appellate Division
    • 14 Marzo 2018
    ...N.Y.S.2d 254, 782 N.E.2d 50 ; Barone v. Nickerson , 140 A.D.3d 1100, 1101, 32 N.Y.S.3d 663 ; Braverman v. Bendiner & Schlesinger, Inc. , 121 A.D.3d 353, 360, 990 N.Y.S.2d 605 ; Quinones v. City of New York , 105 A.D.3d 932, 934, 963 N.Y.S.2d 370 ; Vasquez v. Port Auth. of N.Y. & N.J. , 100 ......
  • Siskin v. Cassar, 2012-07684
    • United States
    • New York Supreme Court Appellate Division
    • 12 Noviembre 2014
    ...390 N.Y.S.2d 393, 358 N.E.2d 1019 ; Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99 ; Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 356, 990 N.Y.S.2d 605 ). The plaintiff also does not have a cause of action against the Cassar defendants alleging breach of contract, be......
  • Request a trial to view additional results
12 cases
  • Pasternack v. Lab. Corp. of Am. Holdings
    • United States
    • New York Court of Appeals
    • 30 Junio 2016
    ...to an indeterminate class of persons conceivably injured’ by its negligent acts”]; see also Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 355–357, 990 N.Y.S.2d 605 [2d Dept.2014], lv. denied 24 N.Y.3d 913, 2 N.Y.S.3d 71, 25 N.E.3d 986 [2015] [plaintiff drug treatment program pa......
  • Pasternack v. Lab. Corp. of Am. Holdings
    • United States
    • New York Court of Appeals
    • 30 Junio 2016
    ...to an indeterminate class of persons conceivably injured’ by its negligent acts”]; see also Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 355–357, 990 N.Y.S.2d 605 [2d Dept.2014], lv. denied 24 N.Y.3d 913, 2 N.Y.S.3d 71, 25 N.E.3d 986 [2015] [plaintiff drug treatment program pa......
  • Castillo v. Port Auth. of N.Y. & N.J., 2016–01320
    • United States
    • New York Supreme Court Appellate Division
    • 14 Marzo 2018
    ...N.Y.S.2d 254, 782 N.E.2d 50 ; Barone v. Nickerson , 140 A.D.3d 1100, 1101, 32 N.Y.S.3d 663 ; Braverman v. Bendiner & Schlesinger, Inc. , 121 A.D.3d 353, 360, 990 N.Y.S.2d 605 ; Quinones v. City of New York , 105 A.D.3d 932, 934, 963 N.Y.S.2d 370 ; Vasquez v. Port Auth. of N.Y. & N.J. , 100 ......
  • Siskin v. Cassar, 2012-07684
    • United States
    • New York Supreme Court Appellate Division
    • 12 Noviembre 2014
    ...390 N.Y.S.2d 393, 358 N.E.2d 1019 ; Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 162 N.E. 99 ; Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 356, 990 N.Y.S.2d 605 ). The plaintiff also does not have a cause of action against the Cassar defendants alleging breach of contract, be......
  • Request a trial to view additional results

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