Doe v. Belmare, 920 N.Y.S.2d 623 (N.Y. Sup. Ct. 2011)

A New York State trial court rejected a motion to dismiss for an action filed against the New York City Health and Hospitals Corporation ("HHC") and its employee, Gloria Belmare, in a case alleging that Belmare breached New York's HIV-confidentiality law by improperly accessing and sharing the HIV status of her son's ex-girlfriend. The opinion concludes that the Public Health Law protecting confidentiality of HIV-related information under which the case was brought has a three year statute of limitations.

The plaintiff "Jane Doe" was admitted to Kings County Hospital for treatment of a stomach ulcer in June of 2007; she informed her former boyfriend Joseph Belmare of this fact. Belmare's mother, defendant Gloria Belmare, was an employee at the hospital. She accessed Doe's hospital records without authorization and informed her son the plaintiff was HIV-positive. The plaintiff claims that subsequently she was harassed and threatened by her former boyfriend and his friends, leading to lost friends, emotional harm and mental anguish. The plaintiff filed suit in June of 2010 based on HHC and Belmare violating Article 27-F of the New York Public Health Law protecting confidentiality of HIV-related information.

HHC filed a motion to dismiss on statute of limitation grounds. HHC characterized Doe's claims of emotional harm, mental anguish and harassment as falling within the broad category of common law personal injury tort. Pursuant to NY Unconsolidated Laws § 7401, personal injury torts require a notice of intention to commence an action to be filed within 90 days and have a statute of limitations of one year plus 90 days. Doe did not file such a notice of intention and filed her actual claim almost three years after the violation. Doe argued that her claim was based on a statute, not common law tort, and can be analogized to civil rights claims filed under the State Human Rights Law. Such civil rights claims are not subject to § 7401 requirements and have a statute of limitations of three years based on New York Civil Practice Law and Rules § 214(2).

The court sided with Jane Doe. Specifically, the court noted that Article 27-F was "enacted to protect a vulnerable class of individuals" against discrimination and violations of privacy, and thus similar to civil rights actions and dissimilar to standard personal injury tort claims. Additionally, Article 27-F provides for civil and criminal penalties, which adds support to the notion that Doe's claim was based on a statute, not common law. As a result of this ruling, plaintiffs suing based on breaches of confidentiality of HIV-related information in New York have three years instead of one year and 90 days to file their claim, and do not have to file a notice of intention to commence an action within 90 days.