LANDON v. KROLL LABORATORY SPECIALISTS INC

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

Eric LANDON, etc., Respondent, v. KROLL LABORATORY SPECIALISTS, INC., Appellant.

2016–13434

Decided: April 17, 2019

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, JOSEPH J. MALTESE, JJ. Anderson & Ochs, LLP, New York, N.Y. (Mitchel H. Ochs of counsel), for appellant.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the defendant appeals from (1) an order of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated August 27, 2015, and (2) an order of the same court dated November 10, 2016.  The order dated August 27, 2015, denied the defendant's motion for summary judgment dismissing the complaint.  The order dated November 10, 2016, insofar as appealed from, denied those branches of the defendant's subsequent motion which were for summary judgment dismissing the causes of action seeking to recover damages resulting from loss of liberty and emotional and psychological harm, and the demand for punitive damages.

ORDERED that the order dated August 27, 2015, is affirmed, without costs or disbursements;  and it is further,

ORDERED that the order dated November 10, 2016, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff tested positive for cannabinoids during a random drug test administered while he was serving a sentence of supervised probation for his conviction of forgery in the second degree.  The drug test was performed by the defendant pursuant to a contract with the County of Orange.  The plaintiff commenced this action alleging, inter alia, that the defendant's negligence resulted in a false positive test result.  In an order dated August 27, 2015, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint.  In an order dated November 10, 2016, the Supreme Court, inter alia, denied those branches of the defendant's motion which were pursuant to CPLR 3126 to strike the causes of action seeking to recover damages resulting from loss of liberty and emotional and psychological harm, and for punitive damages.  The defendant appeals from both orders.

Contrary to the defendant's contentions, it failed to establish its prima facie entitlement to judgment as a matter of law on the issues of duty, breach, and proximate cause (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).  The defendant's submissions did not establish, prima facie, that it performed the plaintiff's drug test “in keeping with relevant professional standards” (Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 7, 977 N.Y.S.2d 676, 999 N.E.2d 1121;  see Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825–826, 37 N.Y.S.3d 750, 59 N.E.3d 485;  Braverman v. Bendiner & Schlesinger, Inc., 121 A.D.3d 353, 990 N.Y.S.2d 605), or that its conduct was not a substantial cause of the events which produced the plaintiff's alleged injury (see Mazella v. Beals, 27 N.Y.3d 694, 706, 57 N.E.3d 1083).  Since the defendant failed to meet its initial burden of establishing, prima facie, its entitlement to judgment as a matter of law, we need not review the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

We agree with the Supreme Court's denial of those branches of the defendant's motion which were for summary judgment dismissing the causes of action seeking to recover damages resulting from loss of liberty and emotional and psychological harm, and the demand for punitive damages (see Ornstein v. New York City Health and Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187;  Kennedy v. McKesson Co., 58 N.Y.2d 500, 504–506, 462 N.Y.S.2d 421, 448 N.E.2d 1332;  Johnson v. State of New York, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 334 N.E.2d 590), and for punitive damages (see Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189;  Randi A.J. v. Long Is. Surgi–Ctr., 46 A.D.3d 74, 81, 842 N.Y.S.2d 558).

MASTRO, J.P., AUSTIN, COHEN and MALTESE, JJ., concur.

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