Plaintiff Berroth commenced this action on December 7 1995 against his former employer defendant Chemical Leaman Tank Lines Inc. ("Chemical Leaman") and a medical facility that had collected a urine sample from him in connection with a random drug test defendant HealthWorks. By Order dated January 31 1997 Berroth's sole claim against Chemical Leaman was dismissed with prejudice pursuant to a Stipulation of Dismissal. Presently before this Court is a motion by HealthWorks the only remaining defendant in this action seeking a summary judgment dismissing Berroth's sole claim against it pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons set forth below that motion will be granted.

On July 8 1995 Chemical Leaman selected Berroth for random drug testing and directed him to report to HealthWorks which collected a urine sample from Berroth and forwarded it to an unrelated medical facility MedExpress for testing. Shortly thereafter MedExpress notified Chemical Leaman that Berroth had tested positive for marijuana. Berroth resigned from Chemical Leaman effective July 27 1995 allegedly because of the results of his drug test. Berroth's sole claim against HealthWorks is a common law negligence claim arising under the law of New York. Berroth alleges that HealthWorks collected his urine sample in a negligent manner thereby causing the sample to test positive for marijuana even though he has "never in [his] life smoked ingested or in any way consumed marijuana." Affidavit of Peter Berroth sworn to December 13 1996 P25.

The standards applicable to HealthWorks' summary judgment motion are well established. FRCvP.56(c) provides that summary judgment "shall be rendered forthwith" if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See generally Celotex Corp. v. Catrett 477 U.S. 317 322-328 91 L. Ed. 2d 265 106 S. Ct.2548 (1986); Anderson v. Liberty Lobby Inc. 477 U.S. 242 248-252 91 L. Ed. 2d 202 106 S. Ct.2505 (1986); Matsushita Elec. Industrial Co. v. Zenith Radio 475 U.S. 574 585-588 89 L. Ed. 2d 538 106 S. Ct.1348 (1986). A genuine issue of material fact exists if the evidence in the record would allow a reasonable jury to return a verdict for the non-movant. Anderson at 248. In ruling on a motion for summary judgment Court must consider the substantive evidentiary burdens assigned to each party. Id. at 254. Ambiguities must be resolved and all reasonable inferences must be drawn in favor of the non-movant Adickes v. Kress & Co. 398 U.S. 144 157 26 L. Ed. 2d 142 90 S. Ct.1598 (1970); Eastway Const. Corp. v. City of New York 762 F.2d 243 249 (2d Cir.1985) but the "mere existence of a scintilla of evidence" supporting the non-movant's case is insufficient to defeat a motion for summary judgment. Anderson at 252.

In order to prevail on his negligence claim Berroth must show (1) that HealthWorks owed him a cognizably duty of care (2) that HealthWorks breached that duty and (3) that he suffered some type of injury as a proximate result of HealthWorks' breach. See Solomon v. City of New York 66 N.Y.2d 1026 1027 499 N.Y.S.2d 392 489 N.E.2d 1294 (1985); Stagl v. Delta Airlines Inc. 52 F.3d 463 467 (2d Cir.1995). This Court need not -- and will not - consider whether the first two elements have been satisfied because it is clear from the record that Berroth has failed to come forward with sufficient evidence to create a genuine issue regarding whether HealthWorks' alleged breach proximately caused his alleged injury.

Berroth's negligence claim is bottomed on his contention that HealthWorks' actions caused his urine sample to test positive for marijuana which forced him to resign from Chemical Leaman and thereby suffer financial and emotional injury. The breaches alleged by Berroth stem from federal regulations that applied to HealthWorks' collection of Berroth's urine sample. Most of those alleged breaches even if true are irrelevant to this action because even if they occurred they could not have caused a false positive test result. *fn1 Moreover several of the federal regulations allegedly violated by HealthWorks were not even violated. *fn2 Of Berroth's numerous allegations of negligence by HealthWorks only two could arguably support his contention that HealthWorks' actions affected the results of his drug test. Those allegations are that the collection bottle into which Berroth provided his sample was not sealed before it was given to him and that after he was given the bottle but before he provided his sample the container was left unattended in a hallway for several minutes. Although those allegations arguably could be used to support Berroth's negligence claim Berroth has not submitted any evidence showing how those errors by HealthWorks led to a false positive test result. Indeed Berroth has not even alleged how those errors affected the test results. While it seems possible that the collection bottle could have been contaminated before Berroth used it and also that someone could have tampered with the bottle while it was left unattended Berroth has not even alleged such let alone submitted an iota of evidence demonstrating such. Consequently in order to find that HealthWorks was negligent a jury would have to engage in rank speculation as to how the alleged errors by HealthWorks led to a false positive test result. Berroth's negligence claim must therefore be dismissed. See Bryant v. Maffucci 923 F.2d 979 982 (2d Cir.1991) (a properly supported summary judgment motion may not be defeated by conjecture or surmise) cert. denied 502 U.S. 849 116 L. Ed. 2d 117 112 S. Ct.152 (1991). *fn3

Accordingly it is hereby ORDERED that defendant HealthWorks' motion for a summary judgment is granted that Berroth's sole claim against HealthWorks is dismissed with prejudice and that this case shall be closed.