                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 22, 2015                     520371
________________________________

JO DREVER,
                      Respondent,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Appellant.
________________________________


Calendar Date:   September 9, 2015

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                               __________


      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for appellant.

      Law Offices of Bonita E. Zelman, Lake Success (Alexander J.
Wulwick, New York City, of counsel), for respondent.

                               __________


Peters, P.J.

      Appeal from an order of the Court of Claims (Hard, J.),
entered March 31, 2014, which, among other things, partially
granted claimant's cross motion for summary judgment on the issue
of liability.

      This appeal concerns whether defendant's enrollment of
individuals into its organ and tissue donor registry constitutes
a governmental or proprietary function. We hold that this
activity is a governmental function and that, absent the
assumption of a special duty to claimant, defendant may not be
held liable for its negligent performance of that function.

      On August 5, 2009, claimant's mother, Margaret Lanza,
filled out a driver's license renewal application and submitted
                              -2-                520371

it to the Department of Motor Vehicles (hereinafter DMV). The
application contained a donor consent box in which a person could
sign his or her name to indicate that he or she "consent[ed] to
the donation of all organs and tissues." On Lanza's application,
a straight line was drawn in the space provided for the
signature.1 Employees of DMV apparently interpreted the mark as
Lanza's consent to be an organ donor and processed her
application accordingly. This information was electronically
transferred to the Department of Health (hereinafter DOH), which
then enrolled Lanza into defendant's Donate Life Registry (see
Public Health Law § 4310 [1]), with an effective date of August
24, 2009. On the effective date, DOH mailed a letter to Lanza
confirming her registration as an organ donor.2 Prior to
receiving the letter, Lanza died and her organs and tissues were
harvested.

      Claiming that her mother did not consent to be an organ
donor, claimant commenced this action alleging unlawful
interference with her common-law right of sepulcher, negligence
and negligent and intentional infliction of emotional distress,
seeking both compensatory and punitive damages.3 Following
joinder of issue, defendant moved for summary judgment dismissing
the claim on the basis of, among other things, governmental
immunity, and claimant cross-moved for partial summary judgment
on the issue of liability. With respect to the issue of



    1
        According to claimant, who apparently reviewed the
application before it was mailed out, neither she nor Lanza drew
the straight line.
    2
        This case apparently prompted DOH to implement a 28-day
lag between the time the enrollment letter is sent to an enrollee
and the time at which that person becomes active on the Donate
Life Registry.
    3
        Although DMV and DOH were named as defendants, the
caption was amended to list the State of New York as the only
defendant (see Court of Claims Act § 9; Mid-State Indus., Ltd. v
State of New York, 117 AD3d 1255, 1255 n 1 [2014]).
                              -3-                520371

governmental immunity, the Court of Claims found that the
negligent acts at issue stemmed from defendant's performance of a
proprietary function, thereby subjecting it to suit under the
ordinary rules of negligence applicable to nongovernmental
parties. The court then dismissed the negligence, negligent and
intentional infliction of emotional distress and punitive damages
claims on various grounds, but granted claimant summary judgment
on the issue of liability on her claim for unlawful interference
with her common-law right of sepulcher. Defendant appeals.

      It has long been recognized that a "governmental entity's
conduct may fall along a continuum of responsibility to
individuals and society deriving from its governmental and
proprietary functions" (Miller v State of New York, 62 NY2d 506,
511-512 [1984]; see Matter of World Trade Ctr. Bombing Litig., 17
NY3d 428, 446-447 [2011], cert denied sub nom. Ruiz v Port Auth.
of New York & New Jersey,     US ___, 133 S Ct 133 [2012]).

           "At one end of the continuum lie purely
           governmental functions undertaken for the
           protection and safety of the public
           pursuant to the general police powers. In
           this category, [defendant] remains
           generally immune from negligence claims,
           absent a special relationship between the
           injured party and [defendant]. On the
           opposite periphery lie proprietary
           functions in which governmental activities
           essentially substitute for or supplement
           traditionally private enterprises.
           Activities catalogued in the proprietary
           ledger generally subject [defendant] to
           the same duty of care as private
           individuals and institutions engaging in
           the same activities" (Sebastian v State of
           New York, 93 NY2d 790, 793 [1999]
           [internal quotation marks, citations and
           brackets omitted]; see Wittorf v City of
           New York, 23 NY3d 473, 478-479 [2014];
           Applewhite v Accuhealth, Inc., 21 NY3d
                              -4-                520371

           420, 425 [2013]; Metz v State of New York,
           20 NY3d 175, 179 [2012]).

Quintessential examples of purely governmental functions include
police and fire protection (see Valdez v City of New York, 18
NY3d 69, 75 [2011]; Harland Enters. v Commander Oil Corp., 64
NY2d 708, 709 [1984]; Bass v City of New York, 38 AD2d 407, 411
[1972], affd 32 NY2d 894 [1973]) and traffic regulation (see
Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997]; Murchison v
New York, 97 AD3d 1014, 1016 [2012]). On the other hand, a
governmental entity acts in a purely proprietary capacity when it
serves as a landlord by virtue of its ownership and maintenance
of property (see Sebastian v State of New York, 93 NY2d at 793-
794; Miller v State of New York, 62 NY2d at 511-512). In
determining where along the continuum a governmental entity's
challenged conduct falls, it is necessary to examine "'the
specific act or omission out of which the injury is claimed to
have arisen and the capacity in which that act or failure to act
occurred'" (Miller v State of New York, 62 NY2d at 513, quoting
Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182 [1982];
accord Wittorf v City of New York, 23 NY3d at 479; Matter of
World Trade Ctr. Bombing Litig., 17 NY3d at 447; Balsam v Delma
Eng'g Corp., 90 NY2d at 967-968).

      The allegations of negligence here center on defendant's
role in the establishment and management of the Donate Life
Registry, particularly its act of enrolling individuals as donors
via DMV applications. The need for government involvement in the
organ and tissue donation process was recognized almost a half-
century ago with the enactment of the Uniform Anatomical Gift Act
(hereinafter UAGA). Such act was designed to "encourage the
making of anatomical gifts" and to serve the need of several
competing interests including, among others, "the need of society
for bodies, tissues and organs for medical education, research,
therapy and transplantation" (Prefatory Note to Uniform
Anatomical Gift Act of 1968). Notably, every state, as well as
the District of Columbia, has adopted some variation of the UAGA
(http://www.organdonor.gov/legislation_micro). With minor
variation, New York codified the UAGA as Public Health Law
article 43 in 1970 (see L 1970, ch 466). Article 43, among other
                              -5-                520371

things, describes who may be a donor or donee of an anatomical
gift (see Public Health Law §§ 4301, 4302), specifies how a gift
may be executed or revoked (see Public Health Law §§ 4303-4305)
and expressly prohibits the exchange of valuable consideration
for any human organ for use in human transplantation (see Public
Health Law § 4307).

      Over the course of the ensuing 45 years, New York has
employed DMV applications as a means of encouraging anatomical
donations and facilitating the timely identification of organ and
tissue donors. In 1975, the Legislature amended Vehicle and
Traffic Law § 504 to permit people to record their anatomical
gift wishes on their driver's licenses (see L 1975, ch 315).
Supporters noted that "[r]apid and easier identification of
anatomical gifts is critical to their usefulness" (Mem in
Support, Bill Jacket, L 1975, ch 315). In 2004, the Legislature
acted to codify the Donate Life Registry, which had been
established by DOH in 2000, into the Public Health Law
(see Public Health Law § 4310; Hannon Letter in Support, Bill
Jacket, L 2004, ch 454 at 3). The codification of the Donate
Life Registry was designed to "advance public health and well-
being by encouraging and facilitating . . . organ and tissue
donor registry in cooperation with [DMV]" (Leslie Mem in Support,
Bill Jacket, L 2004, ch 454 at 10). As ultimately enacted, it
provided that a person could register his or her intent to make
an anatomical gift via, among other avenues, "the application or
renewal form of a license" (L 2004, ch 454, § 1; see Public
Health Law § 4310 [2]; [5] [a] [i]). Most recently, in 2012, the
Legislature again took steps to increase anatomical donations
through DMV license and nondriver identification application and
renewal forms, this time mandating the use of specific and
conspicuous language in the section of the forms that pertain to
the Donate Life Registry and requiring applicants to make an
election as to their participation (see Public Health Law § 4310
[5] [b]; Vehicle and Traffic Law §§ 490 [2]; 502 [1]). Given
that New York had, at the time, the lowest donor designation rate
in the United States, these amendments sought to "create a new
model for organ and tissue donation that is aimed at
significantly increasing that percentage while taking into
consideration all of the individual rights of persons to decline
                              -6-                520371

enrollment into the program" (Mem in Support, Bill Jacket, L
2012, ch 465 at 9).

      By establishing the Donate Life Registry and facilitating
the identification of organ and tissue donors and the making of
anatomical gifts through DMV applications and renewals, defendant
is protecting and promoting the health and welfare of the public
through the exercise of its general police powers. It is
axiomatic that "'[p]rotecting health and safety is one of
municipal government's most important duties'" (Applewhite v
Accuhealth, Inc., 21 NY3d at 427, quoting Laratro v City of New
York, 8 NY3d 79, 81 [2006]; accord Matter of World Trade Ctr.
Bombing Litig., 17 NY3d at 446-447; see Augustine v Town of
Brant, 249 NY 198, 204 [1928]; see also Pelaez v Seide, 2 NY3d
186, 203 [2004] [holding that the function of "(p)roviding advice
on health and hygiene issues is a governmental activity"]). The
donor registry and enrollment program at issue here is analogous
to other public health measures that have been deemed to be
governmental functions (see e.g. McLean v City of New York, 12
NY3d 194 [2009] [maintenance of a registry of child care
centers]; Pelaez v Seide, 2 NY3d 186 [2004] [lead poisoning
prevention and treatment program]; Nehrbas v Incorporated Vil. of
Lloyd Harbor, 2 NY2d 190 [1957] [municipal garbage collection];
County of Nassau v South Farmingdale Water Dist., 62 AD2d 380
[1978], affd for reasons stated below 46 NY2d 794 [1978]
[supplying of water by a municipal water district for
consumption]; City of New Rochelle v State of New York, 19 AD2d
674 [1963], affd 14 NY2d 559 [1964] [maintenance of a sewer and
drainage system]).

      While the enrollment of organ and tissue donors in New York
was, at least prior to 1975, performed largely by private
enterprises, "[g]overnmental functions are not to be regarded as
nonexistent because they are held in abeyance, or because they
lie dormant, for a time. If they be by their nature
governmental, they are none the less so because the use of them
has had a recent beginning" (Brush v Commissioner, 300 US 352,
371 [1937]; accord County of Nassau v South Farmingdale Water
Dist., 62 AD2d at 391-392). Indeed, "the legal classification of
a particular municipal activity as governmental or proprietary
                              -7-                520371

is, in this transitional age, subject to change with time and
circumstance" (Little Joseph Realty v Town of Babylon, 41 NY2d
738, 742 [1977]; see New York Tel. Co. v City of Binghamton, 18
NY2d 152, 159 [1966]; Nehrbas v Incorporated Vil. of Lloyd
Harbor, 2 NY2d at 194-195). As of February 1, 2012 (just prior
to the motions for summary judgment at issue here), 95% of those
enrolled in the Donate Life Registry were enrolled by DMV through
driver's license and nondriver identification card applications
and renewals, with another 2% enrolled through other governmental
sources such as board of election and DOH enrollments. The fact
that private organizations also enroll a small percentage of
organ donors "is not determinative because those [entities]
provide supplemental support for a . . . governmental duty rather
than vice versa" (Applewhite v Accuhealth, Inc., 21 NY3d at 428;
see Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d at
194-195). Further, that defendant is particularly well-suited to
facilitate and encourage the enrollment of organ donors and has
not undertaken the function for profit or revenue favors placing
the challenged activity at the governmental end of the continuum
(see Matter of Karedes v Colella, 100 NY2d 45, 50 [2003];
Kochanski v City of New York, 76 AD3d 1050, 1052 [2010]).

      For these reasons, we conclude that defendant's enrollment
of individuals into the Donate Life Registry constitutes a
governmental function. As such, liability may be imposed for the
negligent performance of that function only if defendant owed a
special duty to claimant (see Applewhite v Accuhealth, Inc., 21
NY3d at 426; Metz v State of New York, 20 NY3d at 179; Valdez v
City of New York, 18 NY3d at 75). Claimant does not assert the
existence of a special duty, and a review of her submissions
reveals no facts or allegations that could be construed to
demonstrate the existence of such a duty under the circumstances
present here (see Lewis v State of New York, 68 AD3d 1513, 1514
[2009]; Bell v Village of Stamford, 51 AD3d 1263, 1264 [2008]).
Accordingly, claimant's cause of action for unlawful interference
with her common-law right of sepulcher should have been dismissed
on the basis of governmental immunity.

      Defendant's remaining arguments have been rendered academic
by our determination.
                              -8-                  520371

     Lahtinen, Garry and Rose, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied defendant's motion
for summary judgment dismissing the cause of action for unlawful
interference with claimant's common-law right of sepulcher and
granted claimant's cross motion for partial summary judgment on
the issue of liability with respect to said cause of action;
motion granted and cross motion denied to that extent; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
