Landon v. Kroll Lab. Specialists, Inc.

• Decision Date: 22 November 2011
• Citation: 934 N.Y.S.2d 183,91 A.D.3d 79,2011 N.Y. Slip Op. 08567
• Parties: Eric LANDON, etc., appellant, v. KROLL LABORATORY SPECIALISTS, INC., respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08567

91 A.D.3d 79

934 N.Y.S.2d 183

Eric LANDON, etc., appellant,

v.KROLL LABORATORY SPECIALISTS, INC., respondent.

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

Nov. 22, 2011.

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

Anderson & Ochs, LLP, New York, N.Y. (Mitchel H. Ochs of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and ROBERT J. MILLER, JJ.

MILLER, J.

In this case we are called upon to determine whether a drug testing laboratory may be held liable in tort to the subject of a drug test for negligently testing that subject's biological specimen notwithstanding the absence of a formal contractual relationship between the drug testing laboratory and the subject of the drug test. We answer the question in the affirmative.

The complaint in this action alleged that the defendant, Kroll Laboratory Specialists, Inc., was a Louisiana corporation which held a New York State Department of Health Laboratory Permit for Comprehensive Forensic Toxicology and which was in the business of performing forensic toxicology testing to determine the presence or absence of illicit or controlled substances. The defendant entered into a contract with the Orange County Probation Department to analyze oral fluid samples provided by individuals on probation.

On January 28, 2002, the plaintiff was convicted of forgery in the second degree in Orange County. The County Court sentenced the plaintiff to a five-year term of probation. As a condition of his sentence, the plaintiff was required to submit to periodic and random drug testing at the direction of his probation officer.

The plaintiff alleged that on December 17, 2007, while still serving his probationary sentence, he was directed by his probation officer to submit an oral fluid sample for the purpose of determining whether he was complying with the terms of his probation. An oral sample was taken by the plaintiff's probation officer utilizing a device known as “the Intercept DOA Oral Specimen Collection Device” which was manufactured by Orasure Technologies, Inc. (hereinafter Orasure), and which had been purchased from the defendant for such purposes. The oral sample was sent to the defendant to determine whether it contained illicit or controlled substances.

Later that day on December 17, 2007, the plaintiff obtained an independent blood test, which revealed that the plaintiff's blood sample was negative for illicit or controlled substances on December 17, 2007.

The complaint stated that the oral sample provided by the plaintiff was received at the defendant's facility on December 20, 2007. Screening was performed in accordance with the defendant's standard policy and practice utilizing a “Micro–Plate EIA,” a device also developed by Orasure. It was determined that the oral sample contained amounts of cannabinoids which exceeded the defendant's screen test cutoff level of 1.0 ng/mL.

In a written report dated December 20, 2007, the defendant informed the Orange County Probation Department that the oral sample tested positive for marijuana. The complaint alleged that as a result of this erroneous report, the plaintiff's probationary sentence was extended for months beyond the original term and he was compelled to make multiple court appearances to prevent his incarceration based on the erroneous test result.

The plaintiff claimed that the defendant utilized a screen test cutoff level of only 1.0 ng/mL despite the fact that Orasure, the manufacturer of the collection device and the developer of the testing method, recommended a screen test cutoff level of at least 3.0 ng/mL. Moreover, the complaint alleged that the industry-wide standard for forensic drug testing required a screen test cutoff level of 4.0 ng/mL.

In addition, the complaint alleged that the test performed by the defendant was never confirmed by use of a gas chromatography-mass spectrometry test (hereinafter a GC/MS test) or by any other method. The complaint further alleged that holders of a New York State Department of Health Laboratory Permit for Comprehensive Forensic Toxicology were required to utilize a GC/MS test before reporting a positive test result.

The defendant moved to dismiss the complaint asserting, among other things, that the plaintiff failed to state a cause of action. The Supreme Court granted that branch of the defendant's motion and dismissed the complaint pursuant to CPLR 3211(a)(7). We reverse the order insofar as appealed from.

“A party may move for judgment dismissing one or more causes of action asserted against [it] on the ground that ... the pleading fails to state a cause of action” (CPLR 3211[a][7] ). When assessing the adequacy of a complaint in light of a CPLR 3211(a)(7) motion to dismiss, the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff ... “ ‘the benefit of every possible favorable inference’ ” ( AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511).

“Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26). Rather, a court must “determine only whether the facts as alleged fit within any cognizable legal theory” ( Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; see Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184).

The Court of Appeals has recognized that “the line separating tort and contract claims may be elusive [and] the classification ... consequential” ( Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365; see Preferred Mut. Ins. Co. v. C. Rumbalski Chimney Sweep, 46 A.D.3d 866, 867, 849 N.Y.S.2d 584). In order to gain perspective on this issue, we begin by considering the source of the respective duties imposed in tort law and contract law.

“Duty is essentially a legal term by which we express our conclusion that there can be liability” ( De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). Obligations that flow exclusively from a contract must be enforced as contractual duties under a theory of contract law ( see Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50; Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178, affd. 9 N.Y.3d 253, 848 N.Y.S.2d 585, 878 N.E.2d 1001; see also Prosser and Keeton, Torts § 92, at 655–656 [5th ed.] ). Thus “where a party is merely seeking to enforce its bargain, a tort claim will not lie” ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 316, 639 N.Y.S.2d 283, 662 N.E.2d 763; see Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 A.D.3d 581, 582, 905 N.Y.S.2d 8; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581). Furthermore, a court enforcing a contractual obligation will ordinarily impose a contractual duty only on the promisor in favor of the promisee and any intended third-party beneficiaries ( see Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093).

On the other hand, “[a] tort obligation is a duty imposed by law to avoid causing injury to others” ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 316, 639 N.Y.S.2d 283, 662 N.E.2d 763). Accordingly, “the liability to make reparation for an injury rests not upon the consideration of any reciprocal obligation, but upon an original moral duty enjoined upon every person so to conduct himself [or herself], or exercise his [or her] own rights as not to injure another” ( Rich v. New York Cent. & Hudson Riv. R.R. Co., 87 N.Y. 382, 398; see New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 316, 639 N.Y.S.2d 283, 662 N.E.2d 763; Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386, 426 N.Y.S.2d 233, 402 N.E.2d 1136; see also Heaven v. Pender, 11 QBD 503, 509 [Brett, MR] [1883] ).

A person is not necessarily insulated from liability in tort merely because he or she is engaged in performing a contractual obligation ( see Rich v. New York Cent. & Hudson Riv. R.R. Co., 87 N.Y. at 398; see also Prosser and Keeton, Torts § 93, at 667 [5th ed.] ). “Thus [a] defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 316, 639 N.Y.S.2d 283, 662 N.E.2d 763; see North Shore Bottling Co. v. Schmidt & Sons, 22 N.Y.2d 171, 179, 292 N.Y.S.2d 86, 239 N.E.2d 189; Bandier v. Tim Blenk Tree Care, Inc., 57 A.D.3d 595, 596, 869 N.Y.S.2d 215; International Fid. Ins. Co. v. Gaco W., 229 A.D.2d 471, 474, 645 N.Y.S.2d 522).

“The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim” ( New York Univ. v. Continental Ins. Co., 87 N.Y.2d at 316, 639 N.Y.S.2d 283, 662 N.E.2d 763). Furthermore “[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship” ( Sommer v. Federal Signal Corp., 79 N.Y.2d at 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365; see Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896; see also Dobbs, Torts § 111, at 260 [2000] ).

In this regard “[p]rofessionals, common carriers and bailees, for example, may be subject to tort liability for failure...