Castro v. New York Life Ins. Co.

• Decision Date: 29 July 1991
• Citation: 588 N.Y.S.2d 695,153 Misc.2d 1
• Parties: Zoila CASTRO and Osvaldo Castro, Plaintiffs, v. NEW YORK LIFE INSURANCE COMPANY, Defendant.
• Court: New York Supreme Court

Page 695

588 N.Y.S.2d 695

153 Misc.2d 1

Zoila CASTRO and Osvaldo Castro, Plaintiffs, v. NEW YORK LIFE INSURANCE COMPANY, Defendant.

Supreme Court, New York County IAS Part 3.

July 29, 1991.

Harry H. Lipsig & Partners, New York City, for plaintiffs.

Lawlor & Caulfield, New York City, for defendant.

WILLIAM J. DAVIS, Justice.

Defendant New York Life Insurance Co. ("New York Life") moves for an order, pursuant to CPLR Section 3211[a][7], dismissing the complaint on the ground that it fails to state a cause of action and, pursuant to CPLR Section 3212, granting summary judgment dismissing the complaint.

This is a personal injury action. Plaintiff Zoila Castro ("Castro"), a cleaning worker employed by the American Building Maintenance Company, alleges she sustained personal injuries on June 22, 1989 when she was stuck in the right thumb by a used hypodermic needle and syringe found in a small waste container kept in the fifth floor offices maintained by New York Life at the premises known as 888 Seventh Avenue, New York, New York.

At about 8:30 p.m., Castro was transferring garbage from a small waste container into a larger one in defendant's office when she pushed down on the garbage inside (apparently in an effort to make it compact) and was stuck by a used hypodermic needle and syringe. The incident occurred while Castro had been working in the normal course of her employment.

On June 23, 1989, Castro was treated at Coney Island Hospital, Brooklyn, New York. She has returned to the hospital's outpatient clinic nearly every month thereafter for follow-up testing. She also receives treatment on a regular basis from Dr. Melvin Shulman, a psychiatrist.

The complaint alleges two causes of action. The first cause alleges that the injuries sustained by Castro were due solely to the negligence of New York Life in the operation, maintenance and control of the office, and that the defendant's negligence includes its failure to properly dispose of the used hypodermic needle and syringe (i.e., hazardous medical waste) in a manner provided by statutory laws, regulations and local ordinances. It is also alleged that as a consequence of the defendant's negligence, Castro sustained a hypodermic needle puncture wound to the right thumb; possible contamination with hepatitis; possible exposure to the HIV virus which could develop into Acquired Immune Deficiency Syndrome ("AIDS"); the need to undergo various diagnostic tests; generalized anxiety disorder and a variety of medical problems, including headaches, depression, nightmares and sleeplessness.

The second cause of action alleges that co-plaintiff Osvaldo Castro, Zoila Castro's husband, has lost the care, comfort, companionship and consortium of his wife as a result of the injuries caused by New York Life.

In its answer, defendant denies the material allegations of the complaint and asserts three (3) affirmative defenses: (1) comparative negligence; (2) compliance in maintenance of its offices with existing law; and (3) that defendant's liability, if any, should be limited to the equitable share of total liability pursuant to CPLR, Section 1601.

A party may move for judgment, dismissing one or more causes of action asserted, on the ground that the pleading fails to state a cause of action (CPLR 3211[a][7]. However, on a motion to dismiss a cause of action or defense based on the pleading itself, the material allegations are deemed to be true and everything reasonably to be implied therefrom (Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970). When extrinsic evidence is introduced attacking the complaint, the truthfulness of the pleading allegations is not assumed; the inquiry is as to whether the pleader has a cause of action or defense, not whether one has been properly stated (Id.; see, also, 219 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 414 N.Y.S.2d 889, 387 N.E.2d 1205).

In support of the motion, New York Life specifically attacks the allegation that the puncture sustained by Castro exposed her to the possibility of developing AIDS. Defendant asserts that no cause of action may be maintained solely on the basis of risk or fear of developing AIDS in the future absent evidence that evinces such a degree of probability that it amounts to a reasonable certainty that the disease will manifest itself.

Defendant avers that Castro testified at a deposition that she was tested for the HIV virus at the New York City Department of Health and Hospital Corporation ("Health and Hospital Corp.") a few months after the alleged incident and then later at Coney Island Hospital. Defendant contends that Castro refused to reveal the result of the tests at the deposition and that the only evidence adduced by plaintiff that she will develop AIDS as a result of the "needle prick" is based on "ignorance, fear and hysteria" on her part, and that of her co-workers who later learned about the alleged incident. Defendant further contends Castro's fear of developing AIDS is wholly speculative, subjective and unsupported by any proffered medical evidence despite her repeated follow-up medical examinations.

Castro asserts that employees of defendant had been taking blood samples from prospective life insurance applicants and discarding the used hypodermic needles and syringes in ordinary waste containers, in violation of state law. She contends that medical records from Coney Island Hospital state she sustained physical injury described as a "hypodermic puncture wound to [the] right thumb," and that she suffered an "anxiety reaction secondary" to the puncture. Castro further contends that the hospital sent her for HIV virus testing, which has continued on a regular basis.

Plaintiff further contends that medical records of July, December and February 1989 by Dr. Schulman indicate she was suffering from a "generalized anxiety disorder secondary to the incident of June 22, 1989," and that this condition was directly related to the incident alleged herein.

To recover on her negligence claim alleging physical injury to her right thumb, plaintiff must establish the existence of a duty owed to her by New York Life, breach of that duty, a reasonably close causal connection between the contact and the resulting injury and actual loss, harm, or damage (see,...