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Decided on April 23, 2007
Ct Cl

109964

APPEARANCES:For Claimants:
DUFFY, DUFFY & BURDO, Esqs.
By: Paul Majkowski, Esq.
For Defendant:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Mary Y. J. Kim, Assistant Attorney General

W. Brooks DeBow, J.
Claimant Susan Siegrist filed this claim seeking compensation for emotional injuries allegedly suffered as a result of possibly being exposed to the blood of another patient at defendant's Stony Brook University Hospital.[FN1] Claimant moves for partial summary judgment on the issue of liability. Defendant cross-moves for summary judgment dismissing the claim in its entirety or, in the alternative, for partial summary judgment limiting damages to the six-month period following the alleged exposure. By decision and order dated March 7, 2007, this Court held in abeyance its decision on the parties' motions pending further submissions by the parties on a discrete legal issue, namely whether "defendant's actions in failing to test the blood in the ventilator for HIV [Human Immunodeficiency Virus] support a finding of a special circumstance'" that would excuse claimant from having to prove that she was actually or probably exposed to HIV (Siegrist v State of New York, UID No. 2007-038-506, Claim No. 109964, Motion Nos. M-72342, CM-72640, DeBow, J. [March 7, 2007]). For the reasons set forth below, the Court will grant defendant's cross motion for summary judgment dismissing the claim.
The salient facts are undisputed. On August 18, 2003, claimant underwent surgery under general anesthesia at defendant's Stony Brook University Hospital. The surgery was performed by Dr. Lauri Budnick. On August 22, 2003, Dr. Budnick informed claimant that subsequent to [*2]her surgery, it was discovered that the blood of another patient was present in the "expiratory limb" of the ventilator that had been used during claimant's surgery. The other patient that Stony Brook University Hospital officials suspected was the source of that blood was in a coma and subsequently died, and thus he could not consent to a blood test for the presence of HIV. Neither that patient nor the blood that was found in the ventilator were tested for HIV, and so it was never determined whether the "source" blood was HIV-negative or positive. Claimant was advised that it was possible that she had been exposed to HIV and hepatitis, and following a consultation with Dr. Budnick, claimant underwent periodic testing for HIV every three months for one year, achieving negative results each time. Claimant seeks damages because defendant's actions allegedly caused her to suffer emotional distress due to a fear that she would develop Acquired Immune Deficiency
Syndrome (AIDS).[FN2]
"Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it should only be employed when there is no doubt as to the absence of triable issues'" (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005], quoting Andre v Pomeroy, 35 NY2d 361, 364 [1974]). On a motion for summary judgment, the court's function is issue finding, not issue determination (see Matter of Suffolk County Department of Social Services v James M., 83 NY2d 178, 182 [1994]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
To prevail on an AIDS-phobia claim, a claimant whose HIV tests have been negative must prove "actual exposure" to HIV by establishing "(a) the actual or probable presence of HIV when the alleged transmission occurred, and (b) that there was some injury, impact, or other plausible mode of transmission whereby HIV contamination could with reasonable likelihood enter the plaintiff's bloodstream" (Montalbano v Tri-Mac Enters. of Port Jefferson, 236 AD2d 374, 375 [2d Dept 1997], citing Brown v New York City Health & Hosps. Corp., 225 AD2d 36, 45 [2d Dept 1996]; see Schott v St. Charles Hosp., 250 AD2d 587, 588 [2d Dept 1998]). Requiring this two

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