        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1490
CA 12-01058
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.


NATASHA MUCKOVA, M.D., CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 97318.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SCHELL & SCHELL, P.C., FAIRPORT (GEORGE A. SCHELL OF COUNSEL), FOR
CLAIMANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Philip J. Patti,
J.), entered August 9, 2011. The judgment awarded claimant money
damages after a trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the amended claim is
dismissed.

     Memorandum: Claimant commenced this action seeking damages for
injuries she sustained as a result of contracting tuberculosis during
the autopsy of an inmate (decedent), allegedly owing to defendant’s
negligence. Following trial, the Court of Claims awarded claimant
$500,000. We agree with defendant that it owed no duty of care to
claimant, and we therefore reverse the judgment and dismiss the
amended claim. As a preliminary matter, we note that the language of
the court’s decision is sufficiently broad to encompass an analysis of
both defendant’s alleged duty to warn claimant of decedent’s active
tuberculosis and defendant’s alleged duty to record the active
tuberculosis diagnosis in decedent’s chart in the prison infirmary.
Inasmuch as claimant now contends that the only duty at issue is
defendant’s duty to maintain accurate records, however, we conclude
that she has abandoned any contention with respect to a duty to warn
(see Chapman-Raponi v Vescio, 11 AD3d 1042, 1043; see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 984).

     With respect to the sole remaining theory of liability at issue
on appeal, i.e., defendant’s breach of its alleged duty to record the
tuberculosis diagnosis in decedent’s medical chart pursuant to 10
NYCRR 405.10 (c) (8), we conclude that claimant has no private cause
of action against defendant for the prison’s failure to comply with
that regulation in the absence of a showing, or indeed an allegation,
                                 -2-                         1490
                                                        CA 12-01058

that claimant had the requisite special relationship with defendant
(see Pelaez v Seide, 2 NY3d 186, 198-201; Abraham v City of New York,
39 AD3d 21, 25, lv denied 10 NY3d 707). “The laws and regulations of
this State pertaining to the control of reportable or communicable
diseases were enacted to protect the public in general, and not a
particular class of persons . . . Stated otherwise, they ‘were
intended to benefit the injured [claimant], but in the broad sense of
protecting all members of the general public similarly situated’ ”
(Abraham, 39 AD3d at 25, quoting O’Connor v City of New York, 58 NY2d
184, 190, rearg denied 59 NY2d 762). In light of our determination
that defendant owed claimant no duty of care based on the alleged
violation of 10 NYCRR 405.10 (c) (8), we need not address defendant’s
remaining contentions (see Pulka v Edelman, 40 NY2d 781, 782).




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
