Opinion
401036/2014
05-06-2016
Reginald G. McFadden, Plaintiff v. Eric T. Schneiderman, JEB HARBEN, TIM SMALL, JAWOOD RAO, S. MICHALEK, and TINA JOHNSON, Defendants.
Lucy Billings, J.
I. BACKGROUND
Plaintiff, incarcerated at Attica Correctional Facility, sues defendants to recover damages for violations of federal statutes and a state regulation when defendant Johnson, an Attica medical records employee, released plaintiff's medical records to defendants Harben and Small, employees of the New York State Office of the Attorney General (OAG). Plaintiff contends that the policies of defendant Attorney General Schneiderman and the failure by defendants Rao and Michalek, other Attica employees, to supervise Johnson contributed to the unlawful release of plaintiff's medical records. The OAG defendants, Schneiderman, Harben, and Small, move to dismiss the complaint based on its failure to state a viable claim against them, lack of subject matter jurisdiction over the claims against them, and lack of personal jurisdiction over them. C.P.L.R. § 3211(a)(2), (7), and (8). For the reasons explained below, the court grants these defendants' motion. II. BASES FOR DISMISSAL
A. Failure to State a Viable Claim
The OAG defendants maintain that the state regulation on which plaintiff bases his claim, 7 N.Y.C.R.R. § 5.24, actually bars his claim and expressly allows release of the information about which plaintiff complains. 7 N.Y.C.R.R. § 5.24(d) provides that: "Nothing in this section shall be construed as creating a private right of action for an individual who is the subject of these records . . . ." Since this provision denies plaintiff a private right of action for a violation of 7 N.Y.C.R.R. § 5.24, he may not pursue this action for such a violation. See Uhr v. East Greenbush Cent. School Dist., 94 NY2d 32, 42 (1999); Hoxie's Painting Co. v. Cato-Meridian Cent. School Dist., 76 NY2d 207, 213-14 (1990); Rhodes v. Herz, 84 AD3d 1, 13 (1st Dep't 2011); George v. Bloomberg, 2 AD3d 294, 294-95 (1st Dep't 2003).
Even if plaintiff were permitted to pursue this action, 7 N.Y.C.R.R. § 5.24 allowed the OAG defendants to obtain his medical records. "For the purpose of providing legal services on behalf of the State, its agencies, officials, employees and persons described in Correction Law, section 24-a, such records [*2]may be released to the Office of the Attorney General . . . ." 7 N.Y.C.R.R. § 5.24(b). When the OAG defendants obtained plaintiff's medical records for the purpose of representing New York State Department of Corrections and Community Supervision (DOCCS) employees in an action by plaintiff against them, the United States District Court for the Southern District of New York found OAG's possession of those records entirely permissible. Aff. of D. Stan O'Loughlin Ex. B, at 4-5. In fact, an authorization for release of medical records signed December 26, 2013, by plaintiff that he presents in opposition was for his "entire record" from 1995 to present, Aff. of Reginald G. McFadden (Feb. 19, 2015) Ex. 1, at 1, for the purpose of a lawsuit, and expressly indicates that the authorization did not expire until the "CONCLUSION OF LAWSUIT." Id. at 2.
The legal authority on which plaintiff relies, Davidson v. State of New York, 3 AD3d 623 (3d Dep't 2004), quotes provisions of 7 N.Y.C.R.R. § 5.24 that were eliminated by the regulation's amendments effective January 26, 2005. Moreover, unlike the defendant there, the OAG defendants here acted in accordance with the operative regulation, which expressly permitted them to obtain the records.
Res judicata bars plaintiff's claims insofar as they are based on federal statutes. The United States District Court for the Southern District of New York, in an order dated January 13, 2015, dismissed those claims against the OAG defendants without leave to replead, on the ground that neither the applicable federal statutes, like the state regulation, nor 42 U.S.C. § 1983 afforded a private right of action for violation of those applicable statutes. O'Loughlin Aff. Ex. B, at 3-4; 42 U.S.C. §§ 1320d-2(d)(2), 1320d-5(a), 1320d-6. See Raghavendra v. Bollinger, 128 AD3d 416 (1st Dep't 2015); Raghavendra v. Brill, 128 AD3d 414, 414-15 (1st Dep't 2015); Sanders v. Grenadier Realty, Inc., 102 AD3d 460 (1st Dep't 2013); Bettis v. Kelly, 68 AD3d 578, 579 (1st Dep't 2009).
B. Lack of Subject Matter Jurisdiction
The OAG defendants maintain further that they are absolutely immune because all their actions or omissions of which plaintiff complains were in the course of defending DOCCS employees against plaintiff's claims and thus exclusively in the OAG defendants' official capacity. Since the OAG defendants' conduct for which plaintiff seeks damages was in their official capacity, plaintiff's claims for damages are against New York State governmental officers, Bertoldi v. State of New York, 275 AD2d 227, 228 (1st Dep't 2000); Thomas v. Tarpley, 268 AD2d 258 (1st Dep't 2000), over which the New York State Court of Claims retains exclusive subject matter jurisdiction and the New York State Supreme Court lacks subject matter jurisdiction. NY Ct. Cl. Act § 9(2); Driscoll v. Delarosa, 57 AD3d 317 (1st Dep't 2008); Bertoldi v. State of New York, 275 AD2d at 228; Thomas v. Tarpley, 268 AD2d 258. See Motor Veh. Mfrs. Assn. of U.S. v. State of New York, 75 NY2d 175, 184 n.3 (1990).
C. Lack of Personal Jurisdiction
Finally, the OAG defendants contend that the court lacks personal jurisdiction over them because plaintiff, by mailing his summons and complaint to them by certified mail, never adequately served them. Their receipt of his summons and complaint does not confer personal jurisdiction over them. Jiggetts v. MTA Metro-N. R.R., 121 AD3d 414, 415 (1st Dep't 2014); Vargas v. State of New York, 95 AD3d 588, 589 (1st Dep't 2012); Lowney v. New York State Div. of Human Rights, 68 AD3d 551 (1st Dep't 2009); Moogan v. New York State Dept. of Health, 8 AD3d 68, 69 (1st Dep't 2004). While plaintiff was permitted to serve his summons and complaint on defendant Schneiderman by certified mail, C.P.L.R. § 307(2), he neglected to indicate on his envelope "URGENT LEGAL MAIL" as required for service on this State officer in his official capacity. C.P.L.R. § 307(2); Moogan v. New York State Dept. of Health, 8 AD3d at 69. See Spodek v. New York State Commr. of Taxation & Fin., 85 NY2d 760, 762 (1995); Finnerty v. New York State Thruway Auth., 75 NY2d 721, 722 (1989).
Plaintiff also fails to establish adequate service by mail on Harben and Small. He does not show that he included any of the required enclosures in his mailings to these two defendants: a statement of service by mail, an acknowledgment of receipt, or a postage paid return envelope. C.P.L.R. § 312-a(a); Jiggetts v. MTA Metro-N. R.R., 121 AD3d at 414-15; Nagy v. John Heuss House Drop In Shelter for the Homeless, 198 AD2d 115 (1st Dep't 1993). Service under this method is only complete when defendants return the signed acknowledgment, which never occurred here. C.P.L.R. § 312-a(b); Ananda Capital Partners v. Stav Elec. Sys. (1994), 301 AD2d 430 (1st Dep't 2003); Brown v. Doxsee Sea Clam, Co., 231 AD2d 440, 443 (1st Dep't 1996).
Plaintiff's request in his opposition, to serve the OAG defendants by alternate means, in fact constitutes a request both to extend his time to serve defendants and to use alternate means. C.P.L.R. §§ 306-b, 308(5), 312-a. Even if these requests, sought only in response to a motion to dismiss plaintiff's claims, were to be considered absent a motion for this relief, plaintiff would not be entitled to an extension when his claims lack merit. Cassini v. Advance Publs., Inc., 125 AD3d 467, 468 (1st Dep't 2015); Johnson v. Concourse Vil., Inc., 69 AD3d 410, 410-11 (1st Dep't 2010); Okoh v. Bunis, 48 AD3d 357 (1st Dep't 2008); Posada v. Pelaez, 37 AD3d 168 (1st Dep't 2007). See Gilkes v. New York Wholesale Paper Corp., 89 AD3d 534 (1st Dep't 2011). III. CONCLUSION
For each of the above reasons, the court grants the motion by defendants Schneiderman, Harben, and Small and dismisses the complaint against them based on the court's lack of subject matter and personal jurisdiction, the complaint's failure to state a claim against these defendants, and res judicata. C.P.L.R. § 3211(a)(2), (5), (7), and (8). The court denies plaintiff's request to extend his time to serve these defendants and to serve them by alternate means. C.P.L.R. §§ 306-b, 308(5), 312-a. This decision constitutes the court's order of dismissal. DATED: May 6, 2016
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LUCY BILLINGS, J.S.C.