         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
48
CA 10-00928
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


IRIC BURTON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANDREW C. MATTELIANO, M.D., NIAGARA
FRONTIER TRANSPORTATION AUTHORITY AND
DONALD J. JACOB, M.D., DEFENDANTS-RESPONDENTS.


JOHN D. WIESER, GETZVILLE, FOR PLAINTIFF-APPELLANT.

DAVID M. GREGORY, BUFFALO (WAYNE R. GRADL OF COUNSEL), FOR
DEFENDANT-RESPONDENT NIAGARA FRONTIER TRANSPORTATION AUTHORITY.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (MARK R. AFFRONTI OF
COUNSEL), FOR DEFENDANT-RESPONDENT ANDREW C. MATTELIANO, M.D.

DAMON MOREY LLP, BUFFALO (FRANK C. CALLOCCHIA OF COUNSEL), FOR
DEFENDANT-RESPONDENT DONALD J. JACOB, M.D.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered July 9, 2009. The order granted defendants’
motions to dismiss the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion of
defendant Andrew C. Matteliano, M.D. to dismiss the first cause of
action and reinstating that cause of action and as modified the order
is affirmed without costs.

     Memorandum: Plaintiff was involved in a motor vehicle accident
in July 2005 that was unrelated to his employment with defendant
Niagara Frontier Transportation Authority (NFTA). He suffered various
injuries as a result of the accident and took a leave of absence from
his employment. In April 2006 plaintiff’s treating physician,
defendant Andrew C. Matteliano, M.D., released plaintiff to return to
work “ ‘full duty, without restrictions.’ ” NFTA, however, required
plaintiff to undergo a physical examination by its medical director,
defendant Donald J. Jacob, M.D. Following that examination,
Matteliano complied with Jacob’s request that Matteliano forward
plaintiff’s medical records concerning the injuries that plaintiff
sustained in the motor vehicle accident. As a result of the
examination and a review of those medical records, Jacob determined
that plaintiff was not physically fit to return to work full duty
without restrictions, and he requested objective studies demonstrating
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                                                         CA 10-00928

that plaintiff’s injuries had resolved. No further studies were
forwarded to Jacob and, when plaintiff’s leave of absence expired in
July 2006, plaintiff was discharged from his employment with NFTA
because the restrictions imposed on him rendered him physically unable
to perform the duties of his job.

     Plaintiff filed a complaint against NFTA with the New York State
Division of Human Rights (SDHR) for unlawful discrimination, but that
complaint was dismissed after SDHR determined that there was no
probable cause to believe that NFTA had engaged in any unlawful
discriminatory practices. Plaintiff then commenced a federal action
against, inter alia, NFTA. The United States District Court for the
Western District of New York dismissed the federal law claims with
prejudice and dismissed the state law claims without prejudice to
their maintenance in state court (Burton v Niagara Frontier Transp.
Auth., US Dist Ct, WD NY, Aug. 29, 2008).

     Plaintiff thereafter commenced this action seeking damages
arising out of his discharge from employment with NFTA. NFTA moved to
dismiss the complaint against it pursuant to CPLR 3211 (a) (1), (5)
and (7) “and/or” for summary judgment dismissing the complaint against
it. Matteliano moved to dismiss the complaint against him pursuant to
CPLR 3211 (a) (7) and Jacob moved to dismiss the complaint against him
pursuant to CPLR 3211 (a) (1), (5) and (7).

     We conclude that Supreme Court erred in granting that part of the
motion of Matteliano seeking to dismiss the first cause of action,
which was asserted against only him. We therefore modify the order
accordingly. In that cause of action, plaintiff alleges that
Matteliano breached his fiduciary duty to plaintiff because he
disclosed plaintiff’s confidential medical records to Jacob and NFTA
without plaintiff’s consent, knowledge, waiver, release or
authorization. Matteliano’s motion to dismiss was based solely on
CPLR 3211 (a) (7), and we therefore must “accept the facts as alleged
in the complaint as true, accord plaintiff[] the benefit of every
possible favorable inference[] and determine only whether the facts as
alleged fit within any cognizable legal theory . . . ‘[T]he criterion
is whether [plaintiff] has a cause of action, not whether he has
stated one’ ” (Leon v Martinez, 84 NY2d 83, 87-88). It is well
established that a patient may maintain a cause of action for breach
of fiduciary duty against his or her physician resulting from the
physician’s unauthorized disclosure of the patient’s medical records
(see Tighe v Ginsberg, 146 AD2d 268, 269-271; see also Randi A. J. v
Long Is. Surgi-Center, 46 AD3d 74, 78; cf. Juric v Bergstraesser, 44
AD3d 1186, 1187-1188). “[T]he duty not to disclose confidential
personal information springs from the implied covenant of trust and
confidence that is inherent in the physician patient relationship, the
breach of which is actionable as a tort” (Doe v Community Health
Plan–Kaiser Corp., 268 AD2d 183, 187). Although Matteliano sets forth
several reasons to justify or excuse his disclosure of plaintiff’s
medical records, “[j]ustification or excuse will depend upon a showing
of circumstances and competing interests [that] support the need to
disclose . . . Because such showing is a matter of affirmative
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                                                         CA 10-00928

defense, [Matteliano] is not entitled to dismissal of the [first cause
of] action” (MacDonald v Clinger, 84 AD2d 482, 488; see Juric, 44 AD3d
at 1188).

     We further conclude, however, that the court properly granted the
remainder of Matteliano’s motion, as well as the motions of NFTA and
Jacob. Addressing first NFTA’s motion, we conclude that the breach of
contract and tort causes of action against NFTA are barred because
plaintiff failed to file a notice of claim as required by Public
Authorities Law § 1299-p (1) and (2) (see Palmer v Niagara Frontier
Transp. Auth., 56 AD3d 1245). Furthermore, the tort causes of action
against NFTA are time-barred pursuant to section 1299-p (2). Although
plaintiff, in opposition to NFTA’s motion, sought to amend his
complaint to add a cause of action against NFTA pursuant to 42 USC §
1983, for which no notice of claim is required, we conclude that he is
barred by the doctrine of res judicata from asserting such a cause of
action inasmuch as the dismissal of his federal action “constitutes an
adjudication that the plaintiff has no [f]ederal claim” (Mastroianni v
Incorporated Vil. of Hempstead, 166 AD2d 560, 562; cf. Troy v Goord,
300 AD2d 1086).

     We conclude that the court properly granted those parts of the
motions of NFTA, Matteliano and Jacob with respect to the first joint
cause of action against them, inasmuch as there is no private cause of
action pursuant to CPLR 4504 (see Doe, 268 AD2d at 186-187; Waldron v
Ball Corp., 210 AD2d 611, 614, lv denied 85 NY2d 803; see generally
Lightman v Flaum, 97 NY2d 128, 136-137, cert denied 535 US 1096). The
court also properly granted those parts of the motions of Matteliano
and Jacob with respect to the second joint cause of action against
them, alleging that defendants intended to cause and did cause
plaintiff “extreme emotional distress and mental anguish.” We
conclude that “the conduct of [Matteliano and Jacob], viewed in the
light most favorable to plaintiff, is not sufficiently outrageous in
character and extreme in degree as to exceed all bounds of decency”
(Albert v Solimon, 252 AD2d 139, 141, affd 94 NY2d 771; see Murphy v
American Home Prods. Corp., 58 NY2d 293, 303). The cases relied on by
plaintiff are distinguishable inasmuch as the damages awarded for
mental anguish in those cases arose out of other independent causes of
action (see e.g. Matter of Diaz Chem. Corp. v New York State Div. of
Human Rights, 237 AD2d 932, 933, affd 91 NY2d 932; Miner v City of
Glens Falls, 999 F2d 655, 662-663).

     Plaintiff did not raise any issues concerning the third joint
cause of action against all defendants, and we therefore deem any
issues with respect thereto abandoned (see Ciesinski v Town of Aurora,
202 AD2d 984). We conclude that the court properly granted those
parts of the motions of Matteliano and Jacob with respect to the
fourth joint cause of action against them for lost wages. We agree
with defendants that lost wages are a measure of damages and thus
cannot form the basis of an independent cause of action.

     We have reviewed plaintiff’s remaining contentions and conclude
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                                              CA 10-00928

that they are without merit.




Entered:   February 10, 2011         Patricia L. Morgan
                                     Clerk of the Court
