Eric Landon,, Respondent,v.Kroll Laboratory Specialists, Inc., Appellant.

Brief

N.Y.September 3, 2013

To be Argued by: MITCHEL H. OCHS (Time Requested: 30 Minutes) Orange County Clerk’s Index No. 9696/09 Appellate Division–Second Department Docket No. 2010-02182 Court of Appeals of the State of New York ERIC LANDON, individually and on behalf of all others similarly situated, Plaintiff-Respondent, – against – KROLL LABORATORY SPECIALISTS, INC., Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT ANDERSON & OCHS, LLP 61 Broadway, Suite 2900 New York, New York 10006 Tel.: (212) 344-3600 Fax: (212) 344-0970 Attorneys for Defendant-Appellant Date Completed: April 12, 2012 STATE OF NEW YORK COURT OF APPEALS ERIC LANDON, et ai., Plaintiff-Respondent, -against- x CORPORATE DISCLOSURE STATEMENT KROLL LABORATORY SPECIALISTS, INC., Defendant-Appellant. x Pursuant to Section 500.1(f) of the Rules of the Court of Appeals, the undersigned hereby certifies that the following reflects Defendant-Appellant Kroll Laboratory Specialists, Inc.'s corporate "parents, subsidiaries and affiliates:" Kroll Laboratory Specialists, Inc., is now known as Alere Toxicology Services, Inc., which is a subsidiary of Laboratory Specialists of America, Inc., which is a subsidiary of Alere, Inc. Dated: New York, New York February 22, 2012 OCHS'LLP~ ~. - /hI'------- JasonA. Stem 61 Broadway, Suite 2900 New York, New York 10006 (212) 344-3600 Attorneys for Defendant-Appellant Kroll Laboratory Specialists) Inc. TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF JURISDICTION ......................................................................... 4 QUESTION PRESENTED ....................................................................................... 4 STATEMENT OF THE CASE ................................................................................. 5 A. Allegations of the Complaint ................................................................ 5 1. The Parties .................................................................................. 5 2. The Factual Allegations .............................................................. 6 3. The Single Negligence Claim Against Kroll .............................................................................. 7 B. Pri or Proceedings .................................................................................. 9 1. The Trial Court Decision ............................................................ 9 2. The Appellate Division Decision ............................................... 9 ARGUMENT .......................................................................................................... 12 POINT I THE APPELLATE DIVISION ERRED AS A MATTER OF LAW IN REINSTATING THE COMPLAINT SOUNDING IN NEGLIGENCE ........................................................................................................ 12 A. The Appellate Division Erred as a Matter of Law In Finding A Duty Owed .................................................................................................. 13 B. The Appellate Division Erred as a Matter of Law in Finding a Legally Cognizable Injury Had Been Alleged ................................................. 28 POINT II THE APPELLATE DIVISION ERRED IN RECOGNIZING A NEW CAUSE FOR LIABILITY IN FAVOR OF A PROBA TIONER AGAINST A PRIVATE TESTING LABORATORY CONCERNING DRUG TEST RESULTS REPORTED AS PART OF THE TERMS AND CONDITIONS OF HIS PROBATION ......................................................... 36 CONCLUSION ....................................................................................................... 46 11 TABLE OF AUTHORITIES Cases Adams v. New York City Transit Auth., 88 N.Y.2d 116,666 N.E.2d 216, 634 N.Y.S.2d511 (1996) ............................................................................................ 22 Baez v. Jetblue Airways Corp., 2009 U.S. Dist. LEXIS 67020 (E.D.N.Y. Aug. 3, 2009) .................................... 18 Baker v. Welch, 2003 U.S. Dist. LEXIS 22059 (S.D.N. Y. Dec. 10, 2003) ................................... 41 Becker v. Schwartz, 46 N.Y.2d 401,386 N.E.2d 807,413 N.Y.S.2d 895 (1978) ............................... 29 Berry v. Natl. Med. Servs., 41 Kan. App. 2d 612, 205 P. 3d 745 (2009) ........................................................ 18 Brothers v. New York State Elec. And Gas Corp., 11 N.Y.3d 251,898 N.E.2d 539, 869 N.Y.S.2d 356 (2008) ......................... 13, 16 Calquari v. Grace, 98 A.D.2d 74, 469 N.Y.S.2d 942 (2d Dep't 1983) .............................................. 16 Coleman v. Corporate Loss Prevention Assocs., 282 A.D.2d 703, 724 N.Y.S.2d 321 (2d Dep't 2001) .......................................... 34 Coleman v. Town of Hempstead, 30 F. Supp. 2d 356 (E.D.N.Y. 1999) ....................................... 2,22, 23,24,25,26 Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 483 N.E.2d 110,493 N.Y.S.2d 435 (1985) ............................... 14 DeBeilis v. Property Clerk of New York, 79 N.Y.2d 49,588 N.E.2d 55, 580 N.Y.S.2d 157 (1992) ................................... 25 Dombrowski v. Bulson, 79 A.D.3d 1587,915 N.Y.S.2d 778 (4th Dep't 2010) .......................................... 35 Drake v. Lab Corp. of Am. Holdings, 2007 U.S. Dist. LEXIS 17430 (E.D.N.Y. Mar. 13, 2007) ............ 2, 22, 24, 25, 26 HI Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128, 688 N.Y.S.2d 12 (1 st Dep't 1999) ............................................ 39 E. Refactories Co. v . Forty-Eight Insulations, Inc., 658 F. Supp. 197 (S.D.N. Y. 1987) ...................................................................... 28 Espinal v. Melville Snow Contrs. Inc., 98 N.Y.2d 136,773 N.E.2d 485, 746 N.Y.S.2d 120 (2002) ........ 13-14, 16, 17,26 Galatowitsch v. N.Y. City Gay & Lesbian Anti-Violence Project, Inc., 1 A.D.3d 137,766 N.Y.S.2d 206 (1 st Dep't 2003) .............................................. 33 Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922) .................................................................... 35 Green v. Leibowitz, 118 A.D.2d 756, 500 N. Y.S.2d 146 (2d Dep't 1986) .......................................... 34 Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 555 N.E.2d 273, 556 N.Y.S.2d 21 (1990) ......................... 2, 3,13,20,21,22,25,26,28,29,37,45 Hamilton v. Beretta U.S.A. Corp., 96N.Y.2d222, 750N.E.2d 1055, 727N.Y.S.2d 7(2001) ............... 14, 15, 16, 19 Higgins v. City of Oneonta, 208 A.D.2d 1067,617 N.Y.S.2d 566 (2d Dep't 1994) ................................... 33-34 Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 548 N.E.2d 903,549 N.Y.S.2d 365 (1989) .............................. 28 Hymiak v. Nathan Littauer Hosp. Assn., 86 A.D.2d 699, 446 N.Y.S.2d 558 (3d Dep't 1982) ....................................... 29-30 88 N.Y.2d 593, 671 N.E.2d 1247, 648 N.Y.S.2d 850 (1996) ...................... 31, 32 1992 U.S. Dist. LEXIS 8279 (S.D.N.Y. June 15, 1992) ..................................... 18 Johnson v. Kings County District Attorney's Office, 308 A.D.2d 278, 763 N.Y.S.2d 635 (2d Dep't 2003) .......................................... 33 IV Landon v. County of Orange, 2009 U.S. Dist. LEXIS 64927 (S.D.N.Y. July 23, 2009) ................................ 9, 38 Matter of New York City Asbestos Litig. {HoldampO, 5 N.Y.3d 486,840 N.E.2d 115,806 N.Y.S.2d 146 (2005) ..................... 13, 14, 19 Mempa v. Rhay, 389 U.S. 128(1987) ............................................................................................. 20 Morrissey v. Brewer, 408 U.S. 471 (1972) .................................................................................. 30-31, 41 Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 448 N.E.2d 86,461 N.Y.S.2d 232 (1983) ........................... 22,40 Ortega v. City of New York, 9 N.Y.3d 69, 876 N.E.2d 1189,845 N.Y.S.2d 773 (2007) ................................. 29 Ossining Union Free School Dist. v. Anderson, 73 N. Y.2d 417, 539 N.E.2d 91, 541 N. Y.S.2d 335 (1989) ................................. 35 Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013,568 N.Y.S.2d 891 (4th Dep't 1991) ........................................ 18 Pasternak v. Lab. Corp. of Am., 2011 U.S. Dist. LEXIS 88311 (S.D.N.Y. Aug. 1,2011) .................. 13,17,24,25 Pena v. Travis, 2002 U.S. Dist. LEXIS 24709 (S.D.N.Y. Dec. 27,2002) ............................. 31,41 People ex reI. Kinard v. New York State Div. of Parole, 173 Misc. 2d 760, 662 N.Y.S.2d 346 (Sup. Ct., Erie County 1997) ................... 32 People ex reI. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 276 N.E.2d 238, 318 N.Y.S.2d 449 (1971) ......................... 31,32 People ex reI. Williams v. Eno, 134 A.D. 527, 119 N.Y.S. 600 (1 st Dep't 1909) .................................................. 45 People v. Feliciano, 17 N.Y.3d 14,950 N.E.2d 91, 926 N.Y.S.2d 355 (2011) ................................... 31 v People v. Gilnlare, 63 A.D.2d 45,407 N.Y.S.2d 48 (2d Dep't 1978) ........................................... 42-43 People v. McNair, 87 N.Y.2d 772, 665 N.E.2d 167, 642 N.Y.S.2d 597 (1996) .......................... 19-20 People v. Spragis, 5 A.D.3d 814, 772 N.Y.S.2d 628 (3d Dep't 2004) ................................... 20, 43-44 Prudential Ins. Co. v. Dewey Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 605 N.E.2d 318, 590 N.V.S.2d 831 (1992) ............................... 35 Roberts v. United States, 320 U.S. 264 (1943) ............................................................................................. 43 Sagraves v. Lab One, Inc., 316 Fed. Appx. 366 (6th Cir. 2008) ................................................................ 28, 29 Sajimi v. City of New York, 2011 U.S. Dist. LEXIS 3912 (E.D.N.Y. Jan. 13,2011) ................................ 38,39 Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144 (E.D.N.Y. 1997) .......................................... 2, 22, 24, 25, 40, 41 Schneider v. Finmann, 15 N.Y.3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119 (2010) ............................... 35 Sharpe v. St. Luke's Hospital, 573 Pa. 90, 821 A.D.2d 1215 (2003) ................................................................... 18 Stalteri v. County of Monroe, 107 A.D.2d 1071,486 N.Y.S.2d 555 (4th Dep't 1985) ........................................ 34 State v. Tresville, 1975 Ohio App. LEXIS 6602 (Ohio Ct. App., Cuyahoga County Feb. 6, 1975) .......................................................................... 32 Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 878 N.E.2d 1001,848 N.Y.S.2d 585 (2007) .............. 14-15, 16,26 United States v. Murray, 275 U.S. 347 (1928) ............................................................................................. 43 VI Webster v. Psychenledics Corp., 2011 Tenn. App. LEXIS 335 (Ten. Ct. App. June 24,2011) .............................. 18 Westpac Banking Corp. v. Deschamps, 66 N.Y.2d 16, 484 N.E.2d 1351,494 N.Y.S.2d 848 (1985) .............................. 14 Wilson v. City of New York, 294 A.D.2d 290, 743 N.Y.S.2d 30 (1st Dep't 2002) ..................................... 34,36 Statutes 10 NYCRR § 58-1.1 ................................................................................................ 27 10 NYCRR § 58-1.5 ................................................................................................ 27 1 0 NY CRR § 58-1.1 0 ........................................................................................ 27, 44 42 U .S.C. § 1983 Civil Rights Act. ......................................................................... 37 CPLR § 5602(b)( 1) ................................................................................................... 4 CPLR § 5713 ............................................................................................................. 4 N.Y. Crim. Proc. Law § 410.70 .............................................................................. 20 N. Y. Ct. of Claims Act § 8-b (2) ............................................................................. 39 N.Y. Pub. Health Law § 571-74 ........................................................................ 27, 44 N.Y. Pub. Health Law § 577-79 ........................................................................ 27, 44 Other Authorities 64 N.Y. Jur. 2d, Health and Sanitation § 62 (1987) ................................................ 45 79 N.Y. Jur. 2d, Negligence § 11 (1989) ................................................................ 28 American Probation and Parole Association's Drug Testing Guidelines and Practices for Adult Probation and Parole Agencies, July 1991 ................. 38, 42 Damages in Tort Actions § 2.03[ 1] (Matthew Bender) ......................................... 29 del Carmen and Sorensen, Legal lssues in Drug Testing Probationers and Parolees, Nationallnstitute of Corrections, January 1989 .......................... 41-42 Vll Dobbs, Hayden, and Bublich, Torts (2d Ed.) .......................................................... 33 Harper, James and Gray, Torts (3d Ed.) ................................................................. 33 New York City Bar Association, Committee on Capital Punishment and Committee on Corrections, Undoing Time: A Proposal for Compensation for Wrongful Imprisonment of Innocent Individuals, October 2010 ...................... 39-40 Warren's Negligence in the New York Courts § 1.01[4] (2011) ........................... 29 Warren's Negligence in the New York Courts § 2.02 (2011) .......................... 13,16 Warren's Negligence in the New York Courts § 2.04 (2011) ............................... 29 Vlll PREL~NARYSTATEMENT Defendant-Appellant Kroll Laboratory Specialists, Inc. ("Defendant- Appellant" or "Kroll"), respectfully submits this Brief for its appeal from the Decision and Order, dated November 22,2011, of the Supreme Court of the State of New York, Appellate Division, Second Judicial Department (the "Appellate Decision"). By Decision and Order, dated January 11, 2010, of the New York Supreme Court, County of Orange (Ritter, J.), the trial court dismissed Plaintiff- Respondent's Complaint grounded on a single claim sounding in negligence for failure to state a cause of action under existing New York law. The Appellate Decision reversed the trial court decision, reinstated the Complaint and, thereupon, recognized a whole new, if expanded cause for liability sounding in negligence under New York Law in favor of a probationer against a private testing Lab under contract with Plaintiff s Probation Department. The Appellate Decision itself recognized that Plaintiff-Respondent Eric Landon ("PLaintiff-Respondent" or "Landon") had not alleged, and could not allege, essential elements of a cause of action against Kroll under traditional New York negligence law, and for good reason: no court in New York has ever recognized a "duty" and, thus, a negligence cLaim, as the Appellate Decision did, between a non-contracting testing laboratory and third-party test subject. No court, in any jurisdiction, has ever recognized the right of an individual, in the criminal justice system, to recover "loss-of-freedom damages," under a negligence theory, against a private drug testing laboratory under contract with a governmental agency, as a result of drug test results (negligently obtained or otherwise), and reported to that agency as part of the terms and conditions of probation. More than 20 years ago, in Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 555 N.E.2d 273,556 N.Y.S.2d 21 (1990), this Court dismissed a negligence claim by a polygraph test subject against the test administrator under contract with the plaintiffs private employer. In doing so, the Hall Court held that no legal cause of action based on allegations that the test was negligently administered could be stated under existing law. The Hall Court declined, judicially, to recognize a new cause of action between test taker and test subject. Hall, 76 N.Y.2d at 36. In the 20 years since Hall, various out-of-state and federal courts in New York (and elsewhere) have suggested that the holding and reasoning of Hall may be stale, and that this Court, undertaking a "fresh analysis," might reach a different result today. See,~, Coleman v. Town of Hempstead, 30 F. Supp. 2d 356, 364 (E.D.N.Y. 1999); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 149 (E.D.N.Y. 1997); Drake v. Lab Corp. of Am. Holdings, 2007 U.S. Dist. LEXIS 17430, *5 (E.D.N.Y. Mar. 13,2007). In reinstating Plaintiff-Respondent's cause of action sounding in negligence, the Appellate Division relied, not on existing New York law, but 2 entirely on what it referred to as emerging and/or changing common law outside New York State (and the federal decisions undertaking to predict what the Hall Court might now hold), all as a proxy for what New York courts should now recognize as the law of this State, Hall notwithstanding (A 42).1 But, as detailed below, those "out-of-state" cases, the Appellate Decision's reliance on thenl, and its read of the federal court cases, to recognize a claim here, is in direct conflict with more-than-century-old and time-honored principles of New York negligence law requiring, at a minimum, a "duty," i.e., at least some direct relationship linteraction between plaintiff (a third-party test subject) and the defendant (the laboratory), resulting in direct "harm," i.e., some direct physical injury to the third- party test subject. But, even Plaintiff-Respondent concedes: (i) there was no relationship, actual or legal, between him and Kroll, and, therefore, no duty owed him by Kroll (see Point LA. infra), and (ii) he suffered no actual or cognizable harm but was, in fact, afforded his due process rights resulting in the full and complete dismissal of the probation violation charges brought against him (see , Point LB., infra). The Appellate Decision, thus, represents a new cause for liability not previously recognized under New York law. None of the varying considerations that this Court traditionally balances in determining whether or not to recognize a 1 Citations ("A ") are to the Appendix on Appeal. 3 new remedy in tort, however, weighs in favor of doing so in the circunlstances here (see Point II, infra). Given the number of persons tested (estimated to be 54 nlillion), and in all walks of life, it would be hard to overstate the impact the Appellate Decision, if it stands, will have on future litigation in the State. In short and sum, the Appellate Decision should be reversed, the order of the Supreme Court reinstated, and the certified question answered in the negative. ST A TEMENT OF JURISDICTION This Court has jurisdiction to entertain this appeal pursuant to Civil Practice Law and Rules ("CPLR") § 5602(b)( 1). The Supreme Court of the State of New York, Appellate Division, Second Judicial Department, by Decision and Order entered February 16, 2012, granted Kroll's motion for leave to appeal to the New York Court of Appeals on a certified question. (A 31.) Pursuant to CPLR § 5713, the Appellate Division, Second Judicial Department, certified that questions of law have arisen which ought to be reviewed by the Court of Appeals. (A 31.) QUESTION PRESENTED Was the Appellate Decision, recognizing a cause for liability under a variant of negligence in favor of a third-party probationer against a testing laboratory under contract with his probation department concerning test results reported as part of the terms and conditions of probation, where there was no actual 4 or legal relationship/dealings with one another (other than the act/fact of the test and test results), and Plaintiff-Respondent suffered no actual or legal harm, correctly decided? A. The Allegations of the Complaint ST ATEMENT OF THE CASE The allegations of the Complaint, summarized in the light most favorable to Plaintiff-Respondent, are as follows: 1. The Parties According to the Complaint, Plaintiff-Respondent Eric Landon is a resident of the State of Pennsylvania (A 7). In addition to Plaintiff-Respondent, the Complaint is brought on behalf of a putative class consisting of all persons whose specimen was tested by Kroll, the results of which failed to follow certain alleged workplace test/screening standards and procedures. Kroll is a Louisiana- based private testing laboratory with its principle place of business in Gretna, Louisiana (A 7). Kroll is/was under contract with thousands of businesses, and state and local municipalities and agencies, throughout the Country, including Orange County (the "County"), to perform various workplace and/or probationary drug screening and testing as might be requested of it from time to time (A 7). 5 2. The Factual Allegations According to the Complaint, on January 28, 2002, Landon was convicted of the crime of forgery. (A 7-8.) He was sentenced to a five-year probation term. (A 7-8.) As a condition of his probation term, Landon was required to submit to periodic drug testing of a type and in a manner, and at times, solely in the discretion of his probation officer. (A 8.) On December 17, 2007, while on probation, Landon was directed to submit to a drug test. (A 8.) Samples were collected, with the type of sample, and the means and methods determined, by Landon's probation officer, and sent to Kroll in Louisiana for screening pursuant to Kroll's contract with the County. (A 8-9.) According to the allegations of the Complaint, on the same day that his Probation Officer had collected the specimen, Landon independently obtained a blood test in order to protect himself from a false positive which, it is further alleged, indicated that Landon tested negative for illicit and contraband substances. (A 9.) The sample taken by the County (not Kroll) was sent to/received anonymously by Kroll in Louisiana, and was processed and screened by Kroll in Louisiana. (A 9.) On or about December 20,2007, Kroll then forwarded the test/screening results to the Orange County Probation Department indicating that the sample had screened positive for THC ("marijuana"). (A 11.) 6 According to the allegations in the Complaint, after receiving the drug screening results from Kroll, the Probation Department determined to charge Plaintiff-Respondent with a probation violation and to institute Violation of Probation ("VOP") proceedings. (A 12.) Plaintiff-Respondent alleges that he was required to appear at an arraignment in connection with the VOP proceedings on January 2, 2008, a day before his probation term was set to end, and that he presented his independently obtained blood test results indicating that he tested negative for illicit and contraband substances (A 12). The Complaint further alleges that, on the date of the arraignment, Landon submitted to an additional urine test at the direction of the Probation Department that also indicated a negative result. (A 13.) Landon claims that despite these results, the Probation Department nonetheless made a determination to continue the VOP Proceedings beyond its original term. (A 13.) Although Landon alleges that he remained on probation during several adjourned dates over several weeks, he concedes that the VOP proceedings were ultimately and unconditionally dismissed, and in his favor. (A 12-13.) 3. The Single Negligence Claim Against Kroll Landon sued Kroll, on his behalf and on behalf of a putative class, alleging a single claim sounding in negligence. The gist of the suit is that the drug screening ordered by the Probation Department under its contract with Kroll, and 7 performed by Kroll, was negligently perfomled and administered by failing to follow various proposed workplace standards and procedures for measuring and/or confirming the type of drug screening/testing Kroll performed, resulting in a "false positive. " (A 9-12.) Plaintiff-Respondent does not claim, and the Complaint does not allege as a basis for its negligence claim against Kroll, that Kroll ever met Landon, knew anything about him, the reasons for the screening ordered by the County, had any legal or other relationship with him, and/or had any involvement in/responsibility for any of the decisions relating to the means or methods for collecting and preserving the sample, the probation violation charges made, the decision to commence and/or to continue VOP proceedings - all concededly made by others - and all unrelated to the claims against Kroll. While the Complaint does allege that the Probation Department determined to initiate VOP proceedings based, at least in part, upon Kroll's screening results, the only "harm" or damage Landon alleges against Kroll are unspecified "emotional" injuries, "loss of freedom," and unspecified "attorneys fees" he claims to have incurred as a result of the one or more adjourned Court appearances he was required to attend before the VOP proceedings were temlinated, and in his favor. 8 B. Prior Proceedings 1. The Trial Court Decision Kroll moved to dismiss the Complaint on the grounds, among others, that the Complaint failed to allege essential and time-honored elements of, and therefore could not state, a cause of action in negligence under existing New York law. Specifically, Kroll argued that Landon had not alleged, and could not allege, that Kroll owed him a legal "duty," and/or that he had not alleged, and could not show, that he suffered any damages much less those cognizable in negligence - two essential and indispensable elements of a traditional negligence claim under New York courts. By Decision and Order dated January II, 20 I 0, the trial court granted Kroll's motion to dismiss the Complaint in its entirety for failure to state a cause of action in negligence under New York law. Landon v. County of Orange, 2009 U.S. Dist. LEXIS 64927 (S.D.N.Y. July 23, 2009). 2. The Appellate Division Decision The Appellate Decision reversed and reinstated the negligence claim. (A 32-43.) The Appellate Division relied exclusively on out-of-state decisions and federal court decisions,2 as well as a balancing of policy considerations 2 "We note that numerous other states have already recognized a duty owing from a drug testing Laboratory to a non-contracting individual whose biological specimen was tested for the presence of drugs." (A 42.) 9 reflecting both the pervasiveness of drug testing in society) as a whole, on the one hand, and the need to impose stricterlhigher standards on the industry of drug testing to prevent abuses (i.e. false positives) on the other hand4 (A 41) to conclude that New York courts would now recognize such a new claim under New York law. The Appellate Division held that the relationship between test taker and test subject, however remote, and without more, was sufficient to establish a direct "duty" owing: (A 39). [T]he nexus between the defendant, as the testing party, and the plaintiff, as the subject of the test, was not remote or attenuated, and it existed at the time the alleged negligence occurred. The Appellate Division targeted drug testing laboratories and justified its decision to recognize a new cause for liability sounding in negligence as directed at, and necessary to change, the practice and business of the drug testing industry as a whole: Given the importance drug testing holds in the management of modem affairs and the costs that inaccuracies may exact on society, it is paramount 3 "We also note a study by the United States Department of Health and Human Services which determined that an estimated 54 million full-time workers reported that their employer tested for illicit drug use and an estimated 38.7 million full-time workers responded that their employer conducted testing for alcohol use." (A 41.) 4 "[I]t has been recognized that since accuracy in drug testing is positively related to cost, Laboratories that were willing to skip expensive double-checking procedures can undercut those that are not, thereby offering cheaper testing with the only disadvantage being a higher false positive rate." (A 41.) 10 that incentives exist to mInImIze the cost of erroneous test results . . . Nor do we perceive adequate incentives in the operation of market forces. Drug testing has been described as a multi-million dollar growth industry for test equipment manufacturers, laboratories, consultants, and even private physicians ... It has been recognized that since accuracy in drug testing is positively related to cost, laboratories that are willing to skip expensive double-checking proceedings can undercut those that are not, thereby offering cheaper testing with the only disadvantage being a higher false positive rate ... Thus, where the subject of a drug test is not a contracting party and there is insufficient concern about false positives, the test subject's preference for increased accuracy may be outweighed by the contracting parties' cost concerns. (A 41 ) (citations omitted). In finding that Plaintiff-Respondent had properly alleged "damages" cognizable in negligence, the Appellate Division drew no distinctions between workplace, retirement benefits, child custody and/or probation-related testing, finding that the mere threat/possibility of a "loss of freedom" was no different than direct physical harm or loss, and was enough to satisfy this indispensable element of a negligence claim: [W]e cannot help recognIZIng that a positive toxicology result may have far-reaching, permanent, and devastating effects on, among other things, an individual's livelihood, family life, and liberty. 11 (A 40, 42). * * * [W]e find persuasive the analysis of federal courts which have concluded that New York courts would recognize such a duty under state law . . . Although these cases involve employees who allegedly lost their employment as a result of negligent drug testing, the reasoning underlying the decisions in these cases to impose a duty on drug testing laboratories is certainly no less compelling when an individual's liberty interests are at stake. Kroll timely moved for leave to appeal to this Court. In granting leave, the Appellate Division recognized that its Decision involved pure questions of law that ought to be reviewed by the Court of Appeals. See Decision and Order on Motion of the Appellate Division, Second Department, granting leave to appeal, dated February 16, 2012 (A 31). ARGUMENT POINT I THE APPELLATE DIVISION ERRED AS A MATTER OF LAW IN REINSTATING THE COMPLAINT SOUNDING IN NEGLIGENCE The Appellate Division plainly erred in recognizing a whole new cause for liability in negligence against an industry, holding, in effect, that all drug testing laboratories owe a legal duty to everyone and anyone whose sample it tests simply/solely as a consequence of the fact/act of testing, and the "cause and effect" 12 of the test results, and nothing more, and regardless of the nature or extent of the harm claimed. A. The Appellate Division Erred as a Matter of Law In Finding A Duty Owed The existence and scope of a duty owed is a pure question of law. See,~, Matter of New York City Asbestos Litig. (HoldampO, 5 N.Y.3d 486, 489,840 N.E.2d 115,116,806 N.Y.S.2d 146,147 (2005); Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 30, 555 N.E.2d 273, 275,556 N.Y.S.2d 21,23 (1990); Pasternak v. Lab. Corp. of Am., 2011 U.S. Dist. LEXIS 88311, *24-25 (S.D.N.Y. Aug. 1, 2011) ("The scope of duty owed to a plaintiff is a question of law. "). It is fundamental New York law that to state a claim in negligence, a plaintiff must plead and prove up facts establishing that defendant owed himlher a direct duty of care: Actionable negligence requires proof of a breach of a duty that was owed to the injured party; no liability can be imposed if there is no duty . . . . Warren's Negligence in New York Courts § 2.02[ I] (20 II) (citing Brothers v. New York State Elec. And Gas Corp., 11 N. Y.3d 251, 260, 898 N .E.2d 539, 544, 869 N.Y.S.2d 356 (2008) (the "key issue is whether" defendant owes a "non- delegable duty" to Plaintiff); Espinal v. Melville Snow Contrs. Inc., 98 N. Y.2d 136, 138, 773 N.E.2d 485, 487,746 N.Y.S.2d 120, 122 (2002) ("Because a finding 13 of negligence nlust be based on the breach of duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party."). Absent allegations of a duty, no claim in negligence lies, and the Complaint must be dismissed. See Matter of New York City Asbestos Litig. (Holdampf), 5 N.Y.3d at 498; see also Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233, 750 N.E.2d 1055, 1061, 727 N.Y.S.2d 7, 13 (2001) ("the specter of limitless liability" is banished only when "the class of potential plaintiffs to whom the duty is owed is circumscribed by the relationship"). To find a duty, New York negligence law requires some relationship/direct interaction between the plaintiff and the defendant, alleged tortfeasor. See,~, Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536,483 N.E.2d 110,493 N.Y.S.2d 435 (1985) (dismissing negligence claim where "there is no allegation that [ defendant] had any direct dealings with plaintiffs"); Westpac Banking Corp. v. Deschamps, 66 N. Y.2d 16, 19, 484 N .E.2d 1351, 1352,494 N.Y.S.2d 848, 849-50 (1985) (affirming dismissal of complaint because allegations "fail to demonstrate a relationship between parties sufficiently approaching privity"); Matter of New York City Asbestos Litig. (Holdampf), 5 N.Y.3d at 493 (a "specific duty is required because otherwise, a defendant would be subject to tortious liability to an indeterminate class of persons"); Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257-58, 878 N.E.2d 1001, 14 1003, 848 N.Y.S.2d 585, 588 (2007) (refusing to recognize a duty to a class of people "the amount of which they may not know and cannot control" that would effectively turn defendants into "insurers"). "[W]ithout a duty running directly to the injured person, there can be no liability in damages, however careless the conduct or foreseeable the harm." Hamilton, 96 N.Y.2d at 232. Even Plaintiff-Respondent acknowledges that there existed no relationship (actual and/or legal) between him and Kroll. The Complaint concedes that Kroll is/was under contract with thousands of private businesses and government municipalities and agencies throughout the Country, including Orange County, and its Probation Department, to perform various workplace and probation-related testing, on thousands, if not tens of thousands, of samples annually. (A 14-16.) Plaintiff-Respondent does not allege (and cannot allege) that Kroll ever knew him, interacted with him, had any involvement in!responsibility for any decisions relating to the means and/or methods for collecting and/or preserving the sample, or even knew the reason for the testing. Plaintiff- Respondent, in fact, conceded in his Complaint, that it was the actions of the County, in the exercise of its broad discretion, to bring charges, commence VOP proceedings and to terminate these proceedings as the basis of his negligence claim against Kroll: all Kroll is alleged to have done/failed to do all relates to the misapplication! misinterpretation of alleged governing standards relating to the 15 testing/screening it performed of a sample provided it by the County, and as required by, and pursuant to, its contract with the County.5 It is well settled, however, that such contractual obligations, even if negligently performed, do not give rise to liability in favor of a third-party. Warren's Negligence in New York Courts § 2.02 (20 ii ) (citing Brothers, I I N.Y.3d at 259 ("a contractual obligation, standing alone, will ... not give rise to tort liability in favor of a third-party"); Stiver; 9 N.Y.3d at 257 (same); Espinal, 98 N.Y.2d at 142 (plaintiffmay not state negligence claim based on contract between plaintiff's employer and contractor because contractor "owed no duty of care to plaintiff'»; see also Calquari v. Grace, 98 A.D.2d 74, 78,469 N.Y.S.2d 942, 945 (2d Dep't 1983) (affirming dismissal of Complaint by third-party based on negligence arising out of contract: "It is general1y accepted tenet of New York law 5 To be sure, there are exceptionally limited cases in which a defendant (like Kroll) can be held liable in negligence for harm to and/or by a third party (like the County), absent a direct relationship/dealings with the injured party, but not in the circumstances here. Hamilton, 96 N. Y.2d at 233 (such a "duty may arise, however, only where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant's actual control of the third person's actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others. Examples of these relationships include master and servant, parent and child, and common carriers and their passengers."). To the extent Plaintiff- Respondent seeks "loss of freedom" damages based on the Probation Department's decision, in its sole discretion, to commence and then press V OP proceedings resulting in a brief extension of his probation while he successfully pursued his due process rights (A 12-13), Kroll, quite obviously, had no control over any of the actions of the Probation Department, including the methods and/or means of collecting and maintaining the test sample, the decision to commence VOP proceedings and/or to terminate those proceedings when and as it did. Nor does Kroll stand in any of the special relationships which the law regards as requiring it specifically to act in Landon's interest. 16 that a duty directly assumed for the benefit of a particular person or entity does not extend to third parties[.],,).6 The "out-of-state" cases upon which the Appellate Division relied to recognize a "duty" here running from Kroll to Landon based solely on what it described as the "nexus" between the testing, 011 the one hand, and the test results, on the other hand, 7 are in conflict with New York law. The out-of-state cases rely on the element of foreseeability to define the existence, and nature and scope, of duty, where longstanding New York law does not. For example, the principal case relied upon by Plaintiff-Respondent, and the Appellate Division, Berry v. Natl. 6 There are also very circumscribed situations where a party that enters into a contract to render services may be held to have assumed a duty of care to a non-contracting third-party but not here. See Espinal v. Melville Snow Contrs., Inc., 98 N.Y.2d 136,142,773 N.E.2d 485, 488, 746 N.Y.S.2d 120, 123 (2002) (citations omitted): ( I ) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties, and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely. There is, of course, nothing inherently dangerous in drug testing and even Plaintiff-Respondent does not claim any direct physical harm as a result of his drug test. There were, moreover, no allegations of specific reliance by Plaintiff-Respondent on Kroll and the allegations acknowledge the County's continuing involvement/role in the process leading to the VOP proceedings. See Pasternak, 2011 U.S. Dist. LEXIS 88311 at *30-36 (concluding that the Espinal exceptions are not applicable between a drug testing laboratory and test subject). 7 Plaintiff-Respondent's allegations, and the Appellate Division's findings, about what Kroll did/failed to do, and the foreseeability and proximate cause and effect of Kroll's alleged negligence (A 9-12; A 33-34), may relate to other necessary and independent elements of Plaintiff-Respondent's negligence claim (Le., proximate causation), but was not a basis for Kroll's motion addressed to other, separate legal deficiencies of the claim (Le., duty and damages). 17 Med. Servs., 41 Kan. App. 2d 612, 205 P. 3d 745 (2009), decided under Kansas law, recognized a negligence cause of action without separate allegations and/or proof of a duty running fron1 defendant to plaintiff, where the resulting harm was "foreseeable."s See Berry, 41 Kan. App. 2d at 616 (holding that whether a duty exists to state a negligence claim under Kansas law is satisfied if the harm is foreseeable and there is no public policy against imposing liability on the particular defendant).9 See also Websterv. Psychemedics Corp., 2011 Tenn. App. LEXIS 335, * 12 (Ten. Ct. App. June 24, 20 II) (holding that under Tennessee law, a "duty exists if defendant's conduct poses an unreasonable and foreseeable risk of harm"); Sharpe v. St. Luke's Hospital, 573 Pa. 90,96,821 A.D.2d 1215, 1219 (2003) (holding that the element of duty under Pennsylvania law is determined by the "nature of the risk imposed and the foreseeability of the harm incurred"). 8 It is worth noting that the ~ case is not clearly settled Kansas law. The Appellate Court in ~ reversed the trial court decision dismissing the negligence claim, was itself, a split decision, which was later decided by the highest court in Kansas, also on a split decision basis. Berry v. Natl. Med. Servs., 259 P. 3d 289 (Kan. 2011). 9 Unlike in Kansas, there is a strong public policy in New York against imposing liability on those, like Kroll, who make reports to government authorities even if those reports it later turns out were ne~ligently made. See Pandolfo v. U.A. Cable Sys., 171 A.D.2d 1013,568 N.Y.S.2d 891,982 (4 Dep't 1991) ("As a matter of public policy, there is no cause of action in the State of New York for negligent prosecution or investigation."). See also ~~~~~:...!:!.!...~!'...:! Corp., 2009 U.S. Dist. LEXIS 67020, n.4, * 17-18 (E.D.N.Y. Aug. 3,2009) (dismissing negligence claim brought against airline for reports made to TSA as against New York public policy: "[T]his rule also holds in cases where private defendants report plaintiffs to the police after conducting shoddy investigations."); Jenkins v. New York, 1992 U.S. Dist. LEXIS 8279, 23-24 (S.D.N.Y. June 15, 1992) (dismissing negligence claim based on false prosecution as against public policy of New York: "Plaintiffs cannot circumvent the well-established requirements of the false arrest and malicious prosecution causes of action by inventing new theories of negligence. "). 18 This Court recently reaffirmed, however, that the element of "duty" remains a vibrant and indispensable element of a negligent claim under New York law separate and distinct from the element of foreseeability: [T]he threshold question in any negligence action is: does defendant owe a legally recognizable duty of care to plaintiff? * * * Further, foreseeability, alone, does not define duty, it merely determines the scope of the duty once it is determined to exist. Matter of New York City Asbestos Litig. (HoldampO, 5 N.Y.3d at 493. See also Hamilton, 96 N.Y.2d at 232 (under New York law, "injured party must show that a defendant owed not merely a general duty to society but a specific duty to him or her"). The out-of-state cases are also factually distinguishable - in a dispositive way. All involve mandatory drug testing of private enlployees by their private employers resulting in immediate job loss without any due process rights or other recourse and, thus, direct economic harm/loss to the enlployee. The context in which Plaintiff-Respondent's claim arose involved drug testing as part of a State's unquestionably compelling interest in overseeing the terms and conditions of probation. See,~, People v. McNair, 87 N.Y.2d 772, 776, 665 N.E.2d 167, 169,642 N.Y.S.2d 597, 599 (1996) (holding that any legal challenges affecting the terms and conditions of probation implicate a compelling state interest, and are for 19 the legislature, not the courts to decide). Probationers, moreover, are afforded significant due process rights, including, specifically, in respect of drug testing, and these rights were, in fact, afforded to Landon resulting in the termination of the VOP proceedings, and in his favor. See N.Y. Crim. Proc. Law § 410.70; see also People ex reI. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 267 N.E.2d 238, 318 N.Y.S.2d 449 (1971) (recognizing that probationers are afforded full due process rights to challenge a revocation of probation, including the right to a hearing, to confront witnesses and to assistance of counsel under article I of the New York State Constitution); Mempa v. Rhay, 389 U.S. 128 (1967). Specifically, at the probation hearing, a probationer can challenge "the reliability of the drug test" or issues regarding the "competency" in "administer[ing] the test or read[ing] its results." People v. Spragis, 5 A.D.3d 814, 815, 772 N.Y.S.2d 628 (3d Dep't 2004). The Appellate Decision's holding, in effect, that every testing laboratory owes a duty to all test subjects it tests, without more, also reads the law in New York on the subject way too broadly and, in effect, vitiates the "duty of care" element which is the hallmark of a negligence claim under New York law. Hall v. United Parcel Service, Inc., 76 N.Y.2d 227, 555 N.E.2d 273, 556 N.Y.S.2d 21 (1990), cited but not discussed in the Appellate Decision, involved a claim of negligence by the subject of a polygraph test against the polygraph adnlinistrator 20 under contract with the subject's private employer, alleging that the test was performed in a negligent manner, resulting in his loss of employment. 76 N.Y.2d at 30. Unlike here, the test administrator in Hall was retained as part of an ongoing investigation, specifically for the purpose of determining plaintiff's involvement in an alleged theft. ld. The test was administered directly to the plaintiff, face-to- face. Id. The administrator made the ultimate determination that "plaintiff was 'directly involved in [the] theft. '" Id. It was this finding by the test administrator that directly and immediately resulted in plaintiff's job loss. Id. The Appellate Division nonetheless dismissed the claim holding that no duty existed between test taker and test subject and, therefore, no legal cause of action in negligence could be stated under existing New York law. 151 A.D.2d 984, 985, 544 N.Y.S.2d 250, 251 (4th Dep't 1989).10 Leave was granted to the New York Court of Appeals on a certified question. 74 N.Y.2d 881,882, 547 N.E.2d 97,547 N.Y.S.2d 842, 843 ( 1989). This Court considered and balanced the widespread use of polygraphs in society (approximately two million), and the questionable validity of these results as reported in various publications. 76 N.Y.2d at 33. Nonetheless, this Court, in Hall v. United Parcel Service, Inc., 76 N.Y.2d 27, 555 N.E.2d 273, 556 10 The Appellate Division also held that the act of the '4report[ing]" of the results by the administrator to the private employer in connection with the investigation, even if negligent, was not, as a matter of New York law and New York public policy, actionable. Hall, 151 A.D.2d at 985. 21 N.Y.S.2d 21 (1990), declined to recognize a new cause of action under New York law against the polygraph testing industry, and in favor of plaintiff, based on allegations that the test he took was negligently administered, resulting in harm to plaintiffs reputation. 76 N.Y.2d at 32. The Hall Court concluded that if and whether to recognize such a new liability was better left to the legislature. 76 N.Y.2d at 34-35. See also Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 302,448 N.E.2d 86, 89,461 N.Y.S.2d 232, 235-36 (1983) (holding that significant changes to the State's tort liability laws are "best and more appropriately explored and resolved by the legislative branch of our government."). The Appellate Division also erred in reading and citing the various federal court decisions since Hall for the proposition that the "nexus" between drug testing laboratories and test subject, without more, would be enough to establish a specific duty of care owing under New York law. lI To be sure, Coleman v. Town of Hempstead, 30 F. Supp. 2d 356 (S.D.N.Y. 1999) involved, inter alia, a negligence claim brought following a failed drug test by a private laboratory in I) These federal court decisions since Hall sought to try and predict how this Court would decide the negligence claims brought by a drug testing subject against a drug testing laboratory under supplemental jurisdiction. Coleman v. Town of Hempstead, 30 F. Supp. 2d 356, 365 (S.D.N.Y. 1999) (indicating that the "New York Court of Appeals, undertaking an analysis tracking the Hall decision, would recognize a common law cause of action under the facts in this case"); Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144, 149 (N.D.N.Y. 1997) ('[T]his Court believes the New York Court of Appeals would engage in fresh analysis to decide whether or not the common law of this state recognizes the action Santiago is attempting to pursue."); Drake v. Lab Corp. of Am. Holdings, 2007 U.S. Dist. LEXIS 17430, *5 (E.D.N.Y. March 13, 2007) (anticipating that "[t]he New York Court of Appeals has not had occasion to determine whether a drug testing facility owes a duty of care to a non-contracting employee."). 22 which it was claimed, inter alia, that workplace testing performed on an employee was "bungled" and negligently performed as a result of the test administrator's failure to maintain the seal on plaintiff's sample. 30 F. Supp. 2d at 357. But while the Coleman court did deny the lab's motion to dismiss the negligence claim "under the facts in this case" (id. at 365), it did so not because of the allegations about the manner, method or quality of the testing, or the test results, but rather, it was the alleged failure by the testing lab itself to maintain the seal on the plaintiff's sample and which the lab itself collected directly from the plaintiff, and the allegations that the drug testing laboratory, beyond/after testing, continued to be involved directly with the plaintiff in the challenged action - holding/refusing to turn over custody of the samples to the individual employee after the sample tested positive, refusing, despite the individual employee's direct request of it, to provide the sample to the employee and/or negligently failing to maintain the integrity of the sample tested, all necessary to enable the employee to vindicate himself. Id. at 359-60. But, Plaintiff-Respondent here does not allege any involvement between and/or among himself and Kroll about the samples taken, the testing performed, the results obtained and/or the challenged proceedings commenced, much less that Kroll continued to be involved, in any way (beyond/after it passed along its test results) in the decision singly by the County defendants to commence, continue 23 and discontinue VOP proceedings as and when it did, because he could not, in good faith, do so. The other cases relied on by Appellate Division highlight this critical distinction. In Santiago v. Greyhound Lines, Inc., 956 F. Supp. 144 (N.D.N.Y. 1997), the court only found a duty owed by the conlpany that actually interacted with plaintiff/collected plaintiff's sample and "neglected to have plaintiff initial the bottle or complete the chain of custody form," but found no duty owed by the out- of-state (Louisiana) private laboratory that merely tested samples that were sent to it: "there is no basis in precedent or policy for imposing a new duty on LSI [the testing laboratory]." Id. at 145, 155. Likewise, in Drake v. Lab. Corp. of Am. Holdings, 2007 U.S. Dist. LEXIS 17430 (E.D.N.Y Mar. 13,2007), the court found a duty owed collectively by six defendants, each of which was variously involved with collecting and handling the sample directly from plaintiff, certifying the same, and testing/reporting on it - i.e., the court did not determine or even consider the discrete question of whether a remote private laboratory that merely receives and tests a sample provided to it owes a duty to a third-party test subject. Indeed, most recently, in Pasternack v. Lab Corp. of Am., 2011 U.S. Dist. LEXIS 88311 (S.D.N.Y. Aug. 1, 2011) (decided after briefing and argunlent in the Appellate Division), a federal court in New York, in dismissing a case brought by a drug test subject against a drug testing laboratory for failure to state a 24 cause of action under New York law, read/distinguished this trilogy of federal cases since Hall (Drake, Coleman, Santiago) precisely the same way. 2011 U.S. Dist. LEXIS 88311 at *35-36. The Pasternack Court distinguished "Drake III, Santiago, and Coleman [as all involving] a direct mishandling of plaintiff s urine sample." ld. at *36 (emphasis supplied). The alleged wrong in Pasternack, like the alleged wrong against Kroll,12 was not any direct mishandling of plaintiff s specimen, but that the lab misinterpreted/misapplied alleged governing testing standards. Id. The Pasternack Court held that: Pasternack has not cited any law demonstrating that such a misinterpretation [of governing standards] can provide the basis for a negligence claim. To the extent the Appellate Decision invokes the Santiago and Coleman Courts' speCUlation about what this Court in Hall would have determined had that case involved drug testing, not polygraphs, that speCUlation is neither controlling on this Court (see DeBeilis v. Property Clerk of New York, 79 N.Y.2d 49,57,588 N.E.2d 55,59,580 N.Y.S.2d 157, 161 (1992» nor is it well-based or apt. The discussion in Hall referenced in the Santiago and Coleman decisions involved the nature of the specific "injury" claimed by the plaintiff in Hall (as 12 Plaintiff-Respondent alleged only that Kroll was negligent in failing to follow various proposed workplace standards and procedures for measuring and/or confirming the type of drug screening/testing Krol1 performed. (A 9-12.) 25 opposed to the duty-owed) "reputational injury," and whether a "new cause of action" (other then the negligence claim pled) should be recognized for the recovery of such "harm" traditionally available only under a claim for defamation but otherwise unavailable to the plaintiff in Hall, which, in the end, the Hall Court declined to do in favor of the legislative process. 76 N.Y.2d at 36, n.l. Certainly, no fair reading of Hall would support the supposition offered by the Santiago and Coleman Courts that, had the case involved drug testing, or had the "ham1" claimed by plaintiff in Hall been potentially "greater" (Coleman, 30 F. Supp. 2d at 363-65), that such injury would be recoverable/would support a negligence cause of action under existing New York law. ld. Plaintiff-Respondent does not claim any "reputational harms," and, as described below, he otherwise has failed to allege any damages much less damages legally cognizable under the single negligence claim alleged in the Complaint. Finally, to the extent the Appellate Decision determined to target drug testing laboratories,13 such laboratories doing business in New York are already 13 Generally, and historically, cases where Courts have determined to single out an activity and/or industry by recognizing a new tort theory of liability including in negligence involve hazardous products and/or activities that threaten direct physical harm. Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 878 N.E.2d 1001, 1003,848 N.Y.S.2d 585, 587 (2007); Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 773 N.E.2d 485, 488, 746 N.Y.S.2d 120, 123 (2001) (holding that a party who enters into a contract to render services may be said to assume a duty of care to a third person where the contracting party, in failing to exercise reasonable care in the performance of his duties "launches a force or instrument of harm."); Cf. Adams v. New York City Transit Auth., 88 N.Y.2d 116,666 N.E.2d 216, 634 N. Y.S.2d 511 (1996) (granting leave to appeal and dismissing negligence claims based upon a 26 subject to extensive regulations to ensure accuracy in their testing results. See N.Y. Pub. Health Law §§ 571-74; 10 NYCRR §§ 58-1.1, 58-1.5, 58-1.10. These regulations require that "[a]ll technical procedures employed in a laboratory shall be of proven reliability and generally accepted by leading authorities in the specialties of laboratory medicine and/or approved by the [New York State Department of Health]." 10 NYCRR § 58-1.10(g). Furthermore, violations of these regulations can lead to the revocation of the drug testing permit, a fme, and/or imprisonment. See N.Y. Pub. Health Law §§ 577-79. In short, the Appellate Division erred in finding a duty owed in the particular circumstances here. The Appellate Decision should be reversed, the trial court decision reinstated, and the case dismissed for this reason alone. strict/absolute liability standard holding such a standard of Liability was no longer warranted against common carriers since rail travel in modem times no longer considered a hazardous activity). There is, of course, nothing inherently dangerous about drug testing and, indeed, Plaintiff-Respondent never claimed he suffered any direct physical or economic harm as a result of his drug test results (false or otherwise), only that the drug test results were an indirect link in a causal chain that led to charges being brought, violation of probation proceedings being commenced, hearing dates set and adjourned, and then ultimately terminated in conjunction with Plaintiff-Respondent's due process rights, all as a result of actions taken by others, other that Kroll. Moreover, even if the brief extension of Plaintiff-Respondent's probation somehow amounted to a "loss of freedom," and even if such "loss of freedom" was a harm cognizable in negligence, which it is not (see infra) it strains the law of negligence way too far to suggest that the lab technician testing Plaintiff-Respondent's specimen knew or could have foreseen the extension of probation "injury" that Plaintiff-Respondent claims here. 27 B. The Appellate Division Erred as a Matter of Law in Finding a Legally Cognizable Injury Had Been Alleged The Appellate Division also plainly erred in finding that the "possible" revocation of Landon's probation, which is all the "harm" claimed l4 (A 13), is a sufficient injury to make out a negligence claim under New York law. (A 42). It is hornbook law that to state a claim in negligence under New York law, a plaintiff must allege both actual and physical injury to person or to property. See 79 N.Y. Jur. 2d, Negligence § 11 (1989) ("A negligence claim fails to state a cause of action when it seeks recovery not for physical damage to person or property[.]"); Hall, 76 N.Y.2d at 32, 555 N.E.2d 273, 556 N.Y.S.2d 21 (1990) (dismissing negligence claims where plaintiffs alleged injuries were "less tangible" than a physical injury); Sagraves v. Lab One, Inc., 316 Fed. Appx. 366, 369 (6th Cir. 2008) (dismissing negligence claim against drug testing laboratory 14 Plaintiff-Respondent also alleges, in his Complaint, unspecified emotional harm and psychological harm and humiliation, as well as economic damages in the fonn of the alleged attorneys' fees incurred in his defense of the VOP Proceedings. (A 13). Plaintiff-Respondent did not press his claims for emotional harm in the Appellate Division and would, thus, appear to have abandoned these damages claims. Under settled New York law, moreover, attorneys' fees are simply not recoverable damages absent contract or statute. Hooper Assocs., Ltd. v. AGS Computers, [nc., 74 N.Y.2d 487,491,548 N.E.2d 903,904,549 N.Y.S.2d 365,366 (1989) ("attorney's fees are incidents of litigation," and are not recoverable "unless an award is authorized by agreement between the parties, statute, or court rule."); v. Forty-Eight Insulations, Inc., 658 F. Supp. 197,202 (S.D.N.Y. 1987) (plaintiffs attorneys' fees and costs in suits arising from defendant's negligence are economic damages that are not recoverable. ). 28 where plaintiff failed to allege "any physical damage" caused by the laboratory); Warren's Negligence in the New York Courts, §§ 1.01[4],2.04 (2011) (citing Becker v. Schwartz, 46 N.Y.2d 401,386 N.E.2d 807,413 N.Y.S.2d 895 (1978) (negligence claim dismissed absent allegation of legally cognizable injury»; Ortega v. City of New York, 9 N.Y.3d 69,81,876 N.E.2d 1189, 1196,845 N.Y.S.2d 773, 780 (2007) ("New York Courts have been reluctant to enlbrace clainls that rely on hypothetical theories or speculative assunlptions about the nature of the harm incurred or the extent of plaintiff s damages."); see generally Damages in Tort Actions § 2.03[1] (Matthew Bender) ("Since a negligence action is brought not to vindicate a technical right, but to recover compensation for all loss sustained, proof of an actual loss or injury is essential to recovery."). New York Courts routinely dismiss negligence claims for failure to state a cause of action absent allegations of a legally cognizable injury. See Becker, 46 N.Y.2d at 411 (affirming dismissal of negligence claims because of the "fundamental" flaw that "it does not appear that the infant suffered any legally cognizable injury"); Hall, 76 N.Y.2d at 32-36 (affirming dismissal of negligence claim alleging "reputational injury" as not cognizable in negligence); Hymiak v. Nathan Littauer Hosp. Assn., 86 A.D.2d 699, 446 N.Y.S.2d 558, 559 (3d Dep't 1982) (affirming grant of motion to dismiss for failure to allege "any damages as a 29 result of the alleged negligence of defendant," where defendant hospital lost plaintiff s x-rays, but plaintiff suffered no injury thereby). Plaintiff-Respondent's alleged "loss of freedom" harm is legally deficient and for a host of reasons. For one thing, Plaintiff-Respondent's allegations, even accepting them as true at this point and time, do not establish that he suffered any actual and/or direct physical harm at all. According to the Complaint, Plaintiff-Respondent was charged with a probation violation, hearing dates were set and adjourned by his Probation Department, and the proceedings were ultimately terminated, and in Plaintiff-Respondent's favor. (A 12-13.) The allegations that the adjournment of Plaintiff-Responde nt's due process hearing extended beyond/continued several weeks after his original probation term was due to end is legally beside the point. It is well-recognized that conditions placed on an individual's probation do not implicate a "liberty interest." See,~, Morrissey v. Brewer, 408 U.S. 471,482 (1972): Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in prison. * * * 30 [W]e see, therefore, that the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty .... See also Pena v. Travis, 2002 U.S. Dist. LEXIS 24709 at * 34 (S.D.N.Y. 2002) ("a plaintiff has no liberty interest in being paroled"). As such, there can be "no loss of liberty" damages in favor of probationers respecting the terms and conditions of probation because, simply put, probationers are already considered to be "at liberty." See,~, People ex reI. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 382, 276 N.E.2d 238, 241, 318 N.Y.S.2d 449, 453 (1971) ("when all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned"); Cf. People v. Feliciano, 17 N.Y.3d 14,22,950 N.E.2d 91, 97, 926 N.Y.S.2d 355, 361 (2011) ("an allegation that a probationer has violated probation may result in a serious deprivation, including the loss of liberty"); In re Edwin L., 88 N. Y .2d 593, 612- 13,671 N.E.2d 1247, 1257,648 N.Y.S.2d 850,860 (1996) ("revocation of probation ... results in a loss of liberty."). It follows, logically and legally, that because probation, including conditions of probation, does not implicate a "liberty interest," there can be no "loss of liberty" for a probationer who remains on probation under the very same 31 terms and conditions,15 in this case, while Plaintiff-Respondent successfully pursued his due process rights. See People v. Mencchino v. Warden, Green Haven State Prison, supra; People v. Feliciano, supra; In re Edwin L., supra; People ex reI. Kinard v. New York State Div. ofParoie, 173 Misc. 2d 760, 763, 662 N.Y.S.2d 346, 348 (Sup. Ct., Erie County 1997) (denying claim for damages relating to denial of probationer's right to absolute discharge from parole supervision, holding that the petitioner "suffered no deprivation of freedom or additional penal consequences as a result of the present denial of discharge from his sentence. He remains at Liberty, even though it is true that he is subject to certain reporting requirements and has other possible restrictions on parole."); State v. Tresville, 1975 Ohio App. LEXIS 6602, *5 (Ohio Ct. App., Cuyahoga County Feb. 6, 1975) ("The extension of probation does not involve the possible loss of liberty. It merely continues in effect that same degree of conditioned liberty which existed previously. "). Not only do conditions of probation, whether original or extended, fail to implicate a "liberty interest" and, thus, "loss of liberty damages" as a matter of law, even if they did, Plaintiff-Respondent has not alleged, and cannot show, that a 15 While Plaintiff-Respondent ticks of all the '''conditions'' of his probation that were extended/continued for several weeks during the adjournments of his due process hearing, none of these conditions were newly-imposed as a result of the commencement/adjournment of the VOP proceedings. 32 "loss of liberty" is a "type" of direct, physical injury recoverable in negligence. It is hornbook law, in fact, that such "harms" are not: [N]egligence is not a dignity tort; it only redresses claims for actual damages. Thus, a plaintiff who is negligently but not intentionally confined but who suffers no harms as a result, would have no cause of action. Dobbs, Hayden, and Bublich, ";;;;;"';;;;'=7 at 114 (2d Ed.). See also Harper, James and Gray, Torts, at 333 (3d Ed.) ("the bare interest in freedom from confmement" is not an "actual damage" that is recoverable under "the rules and principles of the tort of negligence"). Indeed, all four Appellate Division Courts have consistently rejected claims for "loss of tiberty-"type damages in negligence actions. See Galatowitsch v. N.Y. City Gay & Lesbian Anti-Violence Project, Inc., 1 A.D.3d 137, 766 N.Y.S.2d 206, 207 (1 st Dep't 2003) ("Because plaintiffs' injuries resulted from prosecution or the threat of prosecution, plaintiffs may not recover under broad general principles of negligence. "); Johnson v. Kings County District Attorney's Office, 308 A.D.2d 278, 284-85, 763 N.Y.S.2d 635, 640 (2d Dep't 2003) ("A plaintiff seeking damages for an injury resulting from a wrongful arrest and detention may not recover under broad general principles of negligence [ . ]"); Higgins v. City of Oneonta, 208 A.D.2d 1067, 1069, 617 N.Y.S.2d 566, 568 (2d Dep't 1994) {"Plaintiffs negligence cause of action was properly dismissed since a party seeking damages for an injury resulting from a wrongful arrest and detention 33 is relegated to the traditional remedi es of false arrest and imprisonment. "); S talteri v. County of Monroe, 107 A.D.2d 1071,486 N.Y.S.2d 555 (4th Dep't 1985) ("Inasmuch as plaintiffs cause of action for negligence is based upon the arrest, he may not recover under broad general principles of negligence [ . ]"). Cf. Coleman v. Corporate Loss Prevention Assocs., 282 A.D.2d 703, 724 N.Y.S.2d 321,322 (2d Dep't 2001) ("There is no cause of action in the State of New York sounding in negligent prosecution or investigation."). In sum, a negligence claim cannot stand on "loss of liberty" damages. Rather, it is well-established that such damages arising from "loss of liberty" are "solely nonpecuniary in nature," and therefore not recoverable in negligence. See Wilson v. City of New York, 294 A.D.2d 290, 292, 743 N.Y.S.2d 30, 32 (1st Dep't 2002); see also Green v. Leibowitz, 118 A.D.2d 756, 758, 500 N.Y.S.2d 146, 149 (2d Dep't 1986) ("while the plaintiff may recover for any pecuniary loss suffered as a result of the defendants' malpractice or negligence, he may not recover [his non-pecuniary damages]"). The cases upon which the Appellate Division relied to find a cognizable "harm" here are all inapposite. All, but one, involved the issue of whether economic or pecuniary damage under negligence/malpractice theories of liability are recoverable. See Schneider v. Finmann, 15 N.Y.3d 306, 308,933 N.E.2d 718, 719, 907 N.Y.S.2d 119, 120 (2010) (involving attorney malpractice 34 claim by representative of an estate for pecuniary loss suffered by the estate); Prudential Ins. Co. v. Dewey Ballantine, Bushby, Palmer & Wood, 80 N.Y.2d 377, 381-82, 605 N.E.2d 318, 320, 590 N.Y.S.2d 831, 833 (1992) (holding in the right circumstances pecuniary recovery might be had from lawyers for economic injuries arising from negligent representation); Ossining Union Free School Dist. v. Anderson, 73 N.Y.2d 417, 424,539 N.E.2d 91, 94,541 N.Y.S.2d 335,338 ( 1989) (holding that recovery may be had for pecuniary loss arising from negligent representations); Glanzer v. Shepard, 233 N.Y. 236, 237, 135 N.E. 275 (1922) (sellers can maintain suit for the amounts overpaid to public weighers based on inaccurate calibration of the weights); Schneider v. Hand, 296 A.D.2d 454, 744 N.Y.S.2d 899, 900 (2d Dep't 2002) (dismissing action against attorney for negligence misrepresentation in connection with tax advice for failure to allege with specificity how attorneys' fees alone caused actual economic injury). The Fourth Department's decision in Dombroski involved a legal malpractice claim (not negligence) by a prisoner claiming she was wrongfully convicted and incarcerated due to the malpractice of her attorney. Dombrowski v. Bulson, 79 A.D.3d 1587,915 N.Y.S.2d 778 (4th Dep't 2010). The Fourth Department held that the plaintiff could seek all damages, including "loss of liberty" damages, but only to the extent "directly attributable to his or her imprisonment." Dombroski, 79 A.D.3d at 1590. Of course, Plaintiff-Respondent's 35 probation was never, in fact, revoked; Plaintiff-Respondent was never incarcerated; and, so, Plaintiff-Respondent never suffered a "loss of liberty" as a matter oflaw. 16 The Appellate Decision should be reversed and the Complaint dismissed for the additional reason that Plaintiff-Respondent has not alleged, and cannot establish, he suffered any actual and/or direct physical harm to person or property required to state a claim in negligence under existing New York law. POINT II THE APPELLATE DIVISION ERRED IN RECOGNIZING A NEW CAUSE FOR LIABILITY IN FAVOR OF A PROBATIONER AGAINST A PRIVATE TESTING LABORATORY CONCERNING DRUG TEST RESULTS REPORTED AS PART OF THE TERMS AND CONDITIONS OF HIS PROBATION Plaintiff-Respondent has not alleged, and cannot show, that he suffered any direct physical harm/injury as a result of Kroll's reporting of its test results to his probation department under its contract with it. Therefore, there is no basis to recover against Kroll under existing New York law. The Complaint can only survive dismissal if this Court is willing to recognize a new tort cause of action. Given the number (54 million) of persons tested, and in all walks of life, 16 The Dombroski Court acknowledged: "The only New York Appellate Court decision on point is that of the First Department in Wilson v. City of New York, 294 A.D.2d 290, 743 N.Y.S.2d 30 ( 1 st Dep't 2002), which held that recovery of nonpecuniary damages is not permitted. . .. [We] decline to follow the holding in Wilson." 79 A.D.3d at 1589. The Fourth Department later granted leave to this Court and that appeaJ is currently pending. 83 A.D.3d 1602, 922 N.Y.S.2d 219 (4th Dep't 2011). 36 the compelling state interest in overseeing the terms and conditions of probati on, including drug and alcohol testing, the statutorily-conferred "due process" rights afforded probationers in respect of challenging drug test results, and the statutorily- created remedies available, in certain circumstances, to probationers against the State, as well as the State's regulation of drug testing laboratories, this Court should not recognize that new remedy that the Appellate Decision recognized in favor of a probationer against a drug testing laboratory in the circumstances alleged here. Hall, 76 N.Y.2d at 34-36. First, remedies are otherwise already available to Plaintiff-Respondent against others in the circumstances alleged. The decision to charge Plaintiff- Respondent with a probation violation, to commence VOP Proceedings and to extend Plaintiff-Respondent's probation while he successfully pursued his due process rights, were all undertaken by the Probation Department, not Kroll (A 12- 13). Any wrongful injury that allegedly flows from the conduct of the Probation Department - the continuation of probation - can be vindicated through a claim against the State. t 7 Whether Kroll could/should/did foresee such consequences is 17 Plaintiff-Respondent, in fact, previously sued Kroll, the County, and other associated/affiliated County defendants in federal court, pursuant to 42 U.S.C. § 1983 of the Civil Rights Act claiming, anl0ng other things, that his drug test was improperly administered, resulting in a "false" positive, and that the initiation ofVOP proceedings against him based on those reported results, deprived him of his "liberty" without due process of law under the fourteenth amendment. The action was dismissed, as to Kroll, with prejudice, and without leave to replead, on the grounds that Kroll was not a '4state actor," and that Plaintiff-Respondent had not alleged and could not allege that Kroll acted with malice, upon which Plaintiff-Respondent grounded his 37 legally beside the point. See, ~ Saiimi v. City of New York, 2011 U.S. Dist. LEXIS 3912, * 27 (E.D.N.Y. Jan. 13,2011) (dismissing negligence claim against airline which made a report to Port Authority police resulting in plaintiffs arrest, holding that "[a ]ny wrongful injury that flows from such conduct - the arrest and other legal consequences - is vindicated through a claim of false arrest against the arresting officer, not a negligence claim against a party requesting police assistance. "). Indeed, it is hard to reconcile the Appellate Decision's recognition of a claim in favor of Plaintiff-Respondent against Kroll in the circumstances alleged - where all Kroll is alleged to have done is to report its test results to the Probation Department under its contract with the Department as part of the terms and conditions of probation - and the strong public policy in New York which encourages reporting by private persons to law enforcement and other government agencies by insulating such parties from liability, even if these reports tum out to have been negligently made:8 See,~, Saiinli v. City of New York, 2011 U.S. Section 1983 claim. See Landon v. County of Orange, 2009 U.S. Dist. LEXIS 64927, * 23 (S.D.N.Y. July 23, 2009) ("[Iln light of the absence of any allegations regarding Krolrs active participation or interest in the V 0 P proceeding against Plaintiff, Plaintiff has not stated a plausible claim for malicious prosecution against Kroll."). i8 The Appellate Decision bases its result, at least in part, on its assumption that the alleged low threshold used by Kroll reflects cost-cutting and other economic incentives as the reason for 'Iofalse positive" results; in fact, the opposite is reported to be the case. See American Probation and Parole Association's Drug Testing Guidelines and Practices for Adult Probation and Parole Agencies, July 1991, at 26, available at http://www.appa-net.org/eweb/ docs/appal pubs/TGPAPPA.pdf: 38 Dist. LEXIS 3912, *27 (E.D.N.Y. Jan. 13,2011); Du Chateau v. Metro-North Commuter R.R. Co., 253 A.D.2d 128,131,688 N.Y.S.2d 12,15 (1 st Dep't 1999) ("It is well settled ... [that] by merely seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed, [the reporting party] will not be held liable for false arrest or malicious prosecution."). The state legislature, moreover, has already acted to create remedies against the state in favor of those wrongfully charged. See N.Y. Ct. of Claims Act § 8-b (2) (2012) ("Any person convicted and subsequently imprisoned for one or more felonies or misdemeanors against the State which he did not commit may ... present a claim for damages against the state."). Accordingly, under this statute, "a person is not eligible for compensation if the sentence received was other than a term of imprisonment (such as probation)[.]" New York City Bar Association, Committee on Capital Punishment and Committee on Corrections, Undoing Time: A Proposal for Compensation for Wrongful Imprisonment of Innocent Individuals, October 2010, at 10-11, available at http://www.nycbar.org/pdf/report/ Some probation or parole agencies may have decided to use higher cutoffs than those recommended due to costs. Many agencies currently use unadvisedly high cutoff levels. This results in failure to detect drug use and also leads to severe problems when results are challenged in administrative or judicial proceedings. Use of high cutoffs invariably results in a series of positive and negative results for a single offender. This gives the incorrect impression that the testing is unreliable or inaccurate. 39 uploads/200720 10-UndoingTimeAProposalforCompensationforWrongful Imprisonment. pdf. This Court has recognized, in related contexts, that, generally speaking, the courts should defer to the legislature in respect of public policy matters and! or in determining whether to expand on rights and remedies granted by statute. See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 301-02, 448 N.E.2d 86, 89-90,461 N.Y.S.2d 232,235-36 (1983) (expansion of tort liability to protect employees from wrongful discharge beyond the "express statutory protection[ s]" already provided is "best left to the Legislature."). The policy considerations underlying the federal employment cases referred to by the Appellate Decision - all of which acknowledge that New York Law under Hall does not recognize the duty found by the Appellate Division's Decision to exist between Plaintiff-Respondent (non-contracting test subject) and Kroll (test administrator) without more (Coleman, 30 F. Supp. 2d at 365; Drake, 2007 U.S. Dist. LEXIS 17430 at *5; Santiago, 956 F. SUppa at 149) also work against recognizing the new negligence liability claim in favor of Plaintiff- Respondent, a probationer. The primary concerns of these courts was the questionable benefits of, and limited regulations on, private employers that perform mandatory workplace drug testing on its employees, and the rights of employees who face significant financial consequences as a result without due 40 process protections. See Santiago, 956 F. SUppa at 150-152 ("[r]easons have been advanced for curtailment" of mandatory workplace testing; comparing "Employee Polygraph Protection Act" with limited rights under "Drug-Free Workplace Act," and the '40mnibus Transportation Enlployee Testing Act," which "does not provide the substantive protection for employees," as other acts). While the Appellate Decision draws no distinction between workplace, child custody, and/or probation-related testing, none of the policy concerns expressed in the federal cases arguably apply here to Plaintiff- Respondent, who is/was a probationer. There are compelling and overriding state interests served in placing terms and conditions on probationers, not found in the private workplace setting. See,~, Pena v. Travis, 2002 U.S. Dist. LEXIS 24709, *25 (S.D.N.Y. Dec. 27, 2002) (probationers/parolees are "properly subject ... to many restrictions not applicable to other citizens") (citing Morrissey v. Brewer, 408 U.S. 471,480 (1972); Baker v. Welch, 2003 U.S. Dist. LEXIS 22059, *37 (S.D.N.Y. Dec. 10, 2003) ("It is beyond question that parolees like [plaintiff] constitutionally may be subject to urine testing for drugs (or alcohol)."). See generally del Carmen and Sorensen, Legal Issues in Drug Testing Probationers and Parolees, National Institute of Corrections, January 1989, at 1, available at https://www.ncjrs.gov/pdffiles IlDigitizationl121383NCJRS.pdf. ("[T]he drug- crime link ... has led to demand for drug testing in the criminal justice system ... 41 From pre-trial to parole, determinations of offender's risk to the community have increasingly relied on drug tests."). Thus, whatever considerations might favor limiting/regulating drug testing in the workplace/private employment context by expanding remedies in favor of employees who are the subject of negligent testing, these considerations are certainly less compelling with respect to the use of such testing in the criminal justice system. See American Probation and Parole Association's Drug Testing Guidelines and Practices for Adult Probation and Parole Agencies, July 1991, at 1, available at http://www.appa-net.org/eweb/docs/appa/pubsIDTGP APPA.pdf ("The Nation's jails and prisons are full of drug involved offenders. Drug testing can reduce strain on these institutions by placing low-risk drug abusing offenders in residential treatment or urine monitoring programs."). The State obviously has a unique and overriding interest in probation and probation-related drug testing, that private employers can not claim. See People v. Gilmare, 63 A.D.2d 45, 48-49, 407 N.Y.S.2d 48, 50-51 (2d Dep't 1978): [P]robation is the attempted saving of a man who has taken one wrong step and whon1 the judge thinks can be set again upon the path of rectitude, if an opportunity for reform be given him before he is stigmatized with imprisonment and subjected to association with hardened convicts * * * The purpose is to avoid imprisonment so long as the guilty man gives promise of reform. Clearly, therefore, probation is not intended to be the equivalent of imprisonment. The aim of the statute 42 is reformatory, not punItIve, and its language carries this aim into effect. * * * Probation is an experimental device serving both society and the offender. It adds the means for exercising wisely that discretion which, within appropriate limits, is given to courts. The probation system was devised to allow persons guilty of anti-social conduct to continue at large but under appropriate safeguards. The hope of the system is that the probationer will derive encouragement and collaboration in his endeavors to remain in society and never serve a day in prison * * * Thus the probation system is in effect a reliance on the future to reveal treatment appropriate to the probationer. In the nature of things, knowledge which may thus be gained is not generally available when the moment for conventional sentencing arrives. Since assessment of an appropriate punishment immediately upon conviction becomes very largely a judgment based on speculation, the function of probation is to supplant such a speculative judgment by judgment based on experience (quoting United States v. Murray, 275 U.S. 347,358 (1928) and Roberts v. United States, 320 U.S. 264, 273 (1943) (Frankfurter, J., dissenting). Moreover, unlike in the private employment arena involving, overwhelmingly, at-will employees, those in the criminal justice systen1 have substantial due process rights, including specifically with respect to challenging the nature and/or results of drug testing. Under New York Law, a probationer can challenge, at a hearing, "the reliability of the drug test" or issues regarding the 43 "competency" in "administer[ing] the test or read[ing] its results." People v. Spragis,5 A.D.3d 814,815,772 N.Y.S.2d 628 (3d Dep't 2004). Finally, the State legislature has already entered the space of drug testing, and has adopted regulations governing drug testing of those in the criminal justice system, and remedial measures against drug testing laboratories for failing to comply with these regulations. See,~, N.Y. Pub. Health Law §§ 571-73 (minimum qualifications for persons "responsible for administration of the technical and scientific operation of a clinical laboratory"); N.Y. Pub. Health Law § 574 (clinical laboratory must have a valid permit from New York State Department of Health to operate and accept specimens); 10 NYCRR § 58-1.1 O(g) (" All technical procedures employed in a laboratory shall be of proven reliability and generally accepted by leading authorities in the specialties of laboratory medicine and/or approved by the [New York State Department of Health]"; N.Y. Pub. Health Law § 578( 1)(a) ("A person who owns or operates a clinical laboratory ... [and] does not comply with this title or the New York city health code is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than two thousand dollars, or by both such fine and imprisonment.") It is long-standing New York State policy that once the legislature has determined what laws are needed to preserve the public health and protect the 44 public safety, it is for the legislature - not the courts - to determine the most efficient way to insure enforcement: While, in the exercise of the police power, the legislature has the right, generally, to determine what laws are needed to preserve the public health and protect the public safety, the power of the legislature to pass "health laws" is not unlimited, but is subject to the authority and duty of the courts to determine whether the act has a fair, just, and reasonable relation to the general welfare. When a health regulation has a reasonable relation to its end, the court will end its inquiry and not concern itself with the wisdom of the regulation. Once it is admitted or determined that the subject matter of a particular health statute comes within the exercise of the police power by the legislature, it is for that body to determine the most efficacious way to insure its enforcement. 64 N.Y. Jur. 2d., Health and Sanitation § 62 ( 1987) (citing People ex rei. Williams v. Eno, 134 A.D. 527, 532,119 N.Y.S. 600 (1 st Dep't 1909). Thus, "[t]he Legislature'S choice to regulate [this industry] in certain limited contexts suggests that this court should stay its own hand and refrain from crafting additional remedial measures." Hall, 76 N.Y.2d at 35. In all the circumstances, the Court should decline Plaintiff- Respondent's invitation to recognize the new claim for liability alleged. 45 CONCLUSION F or all the foregoing reasons, it is respectfully requested that this Court reverse the Decision and Order of the Appellate Division, reinstate the Decision and Order of the Supreme Court, Orange County, answer the certified question in the negative and, thereupon, dismiss the Complaint, on the nlerits, with prejudice for failure to state a legal cause of action, award Kroll its costs, including reasonable attorneys' fees, together with such other and further relief as to the Court seems just and equitable. Dated: New York, New York April 12, 2012 By: 61 Broadway Suite 2900 it n A. Stern ichael J. Hasday New York, New York 10006 (212) 344-3600 Attorneys for Defendant-Appellant Kroll Laboratory Specialists, Inc. 46