Gordon Rees Scully Mansukhani Partner Julia E. Braun and Associate Ross M. Keiser achieved appellate victory, securing the Appellate Division, First Department’s unanimous affirmance of the trial court’s order granting summary judgment and dismissing the case brought against the firm’s client, a national retailer.
In the underlying case, the plaintiff, a retail customer, sought damages for her alleged psychological injuries after pricking her finger on a sharp object in a shoe, alleged to be a needle, while shopping at the client’s flagship location in the heart of Times Square. The plaintiff claimed that she suffered from a fear of contracting a blood-borne illness, namely HIV/AIDS, and demanded $5 million in damages. GRSM successfully argued on summary judgment that the fear was too remote and speculative to be actionable.
In opposition, the plaintiff attempted to create disputes of fact and argued that the probable presence of a virus is sufficient to support recovery for emotional trauma. The trial court rejected the plaintiff’s arguments and granted summary judgment to GRSM’s client. The court held that the plaintiff’s alleged fears were remote and speculative and, therefore, insufficient to support a claim for alleged psychological injuries, as there was a lack of evidence of the alleged object’s contamination or that the plaintiff had suffered any damages.
The plaintiff appealed, arguing that the precedential case law GRSM cited should not apply or should be abrogated as it was outdated and solely based on “public misconceptions” during the HIV/AIDS epidemic of the 1990s. GRSM aggressively countered the plaintiff-appellant’s argument and argued that the actual exposure standard must prevail in New York jurisprudence. Under current New York law, emotional distress claims for fear of contracting a blood-borne illness can only survive where the claimant can prove “(1) a means of transmission that is scientifically accepted as capable of conveying the virus, and (2) the presence of blood or other fluid that is HIV-positive.” Ornstein v. New York City Health & Hospitals Corporation, 10 N.Y.3d 1 (2008).
The Appellate Division, First Department agreed with GRSM, affirming the trial court’s decision and rejecting the plaintiff-appellant’s view of the necessity for new law.
The decision reinforces the capabilities of GRSM’s Commercial Litigation practice in deploying strategic, precedent-based arguments to protect clients from unwarranted liability, ensuring they can operate without the burden of unfounded legal threats.