| Aberbach v Biomedical Tissue Servs., Ltd. |
| 2008 NY Slip Op 01686 [48 AD3d 716] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Ronald Aberbach, Respondent, v Biomedical TissueServices, Ltd., et al., Defendants, and Medtronic, Inc., et al.,Appellants. |
—[*1] Bartels & Feureisen, LLP, White Plains, N.Y. (Michael Fahey and Justina L. Kingen ofcounsel), for respondent.
In an action, inter alia, to recover damages for battery, negligence, negligent infliction ofemotional distress, breach of express warranty, and breach of implied warranty, and based onstrict products liability, the defendants Medtronic, Inc., and Medtronic Sofamor Danek USA,Inc., appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated March 2,2007, which, inter alia, denied their motion to dismiss the complaint insofar as asserted againstthem pursuant to CPLR 3211 (a) (7).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantsMedtronic, Inc., and Medtronic Sofamor Danek USA, Inc., to dismiss the complaint insofar asasserted against them is granted.
According to the complaint, on May 19, 2005 the plaintiff underwent a surgical procedure.During that procedure, bone, bone paste, and other tissue, which were distributed by thedefendants Medtronic, Inc., and Medtronic Sofamor Danek USA, Inc. (hereinafter appellants),for allograft procedures, were implanted in the plaintiff's body. However, the plaintiff allegedonly that those materials were "potentially" contaminated with HIV and other infectious diseases.In his complaint, the plaintiff alleged that, approximately seven months after the surgery, he wasadvised about such a possibility. He then underwent certain tests to determine whether hecontracted one of those diseases. No allegation is made in the complaint that he became infectedwith any disease.[*2]
In May 2006 the plaintiff commenced the instant actionagainst the appellants and other defendants, seeking to recover damages for injuries that heallegedly sustained as a result of their allegedly wrongful conduct. The appellants moved todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a) (7). TheSupreme Court denied the motion. We reverse.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "acceptthe facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Whether the plaintiff canultimately establish the allegations "is not part of the calculus" (EBC I, Inc. v Goldman, Sachs & Co., 5NY3d 11, 19 [2005]).
The branch of the appellants' motion which was to dismiss the cause of action to recoverdamages for battery, insofar as asserted against them, should have been granted (seeCPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d at 87-88). A "valid claim for batteryexists where a person intentionally touches another without that person's consent" (Wende C. v United Methodist Church,N.Y. W. Area, 4 NY3d 293, 298 [2005], cert denied 546 US 818 [2005]; see Jeffreys v Griffin, 1 NY3d 34,41 n 2 [2003]). Here, the complaint contains no allegation that the appellants intentionallytouched the plaintiff's body, either personally or by means of an instrumentality.
The branch of the appellants' motion which was to dismiss the cause of action to recoverdamages for negligent infliction of emotional distress, insofar as asserted against them, alsoshould have been granted (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d at87-88). In this regard, the plaintiff did not allege that he was actually, or even probably, exposedto HIV (cf. Schott v St. Charles Hosp., 250 AD2d 587, 588 [1998]; Lombardo v NewYork Univ. Med. Ctr., 243 AD2d 688, 689 [1997]; Blair v Elwood Union Free Pub.Schools, 238 AD2d 295, 296 [1997]; Montalbano v Tri-Mac Enters. of Port Jefferson,236 AD2d 374 [1997]; Brown v New York City Health & Hosps. Corp., 225 AD2d36, 47 [1996]), or any other infectious disease (cf. Daluise v Sottile, 40 AD3d 801, 803-804 [2007]; E.B. v Liberation Publs., 7 AD3d566, 567 [2004]; Hecht v Kaplan, 221 AD2d 100, 105 [1996]).
In addition, those branches of the appellants' motion which were to dismiss the causes ofaction to recover damages for breach of express and implied warranties, and based on strictproducts liability, insofar as asserted against them, should have been granted (see CPLR3211 [a] [7]; Leon v Martinez, 84 NY2d at 87-88). No "sale," which is required tosupport a cause of action to recover damages for breach of warranty or based on strict productsliability, is alleged here (see Betro v GAC Intl., 158 AD2d 498, 499 [1990]; Goldfarbv Teitelbaum, 149 AD2d 566, 567 [1989]).
Furthermore, that branch of the appellants' motion which was to dismiss the cause of actionto recover damages for negligence, insofar as asserted against them, should have been granted aswell (see CPLR 3211 [a] [7]; Leon v Martinez, 84 AD2d at 87-88). Indeed, thecomplaint fails to allege a cognizable injury suffered as a result of the appellants' allegednegligence (see Boothe v Weiss, 107 AD2d 730, 731 [1985]).
Finally, the cause of action asserting a purported right to recover punitive damages shouldhave been dismissed insofar as asserted against the appellants (see Alexander v Scott,286 AD2d 692, 693 [2001]; Oakfield Group v Bell Atl. Corp., 277 AD2d 365[2000]). Ritter, J.P., Santucci, Covello and Carni, JJ., concur.