(dissenting). The majority’s opinion opens the door for probationers, parolees and others who are subject to mandatory drug testing in the criminal justice system, as well as job applicants and others who are subject to drug and alcohol testing, to bring tort actions against independent third-party drug laboratories based upon the results of such testing. Because the majority’s opinion defines duty too broadly, I dissent and would answer the certified question in the negative.
It is the County of Orange that had a contract with defendant Kroll Laboratory Specialists, Inc. to conduct analyses of oral fluid samples of probationers for the presence of illicit and/or controlled substances. Here, a sample was taken from plaintiff *9by his probation officer and sent to Kroll for screening. Kroll determined that the sample it received contained cannabinoids in an amount exceeding its 1 ng/mL screen test cutoff level as provided by its contract and reported these results to the Probation Department. The Probation Department filed a violation of probation (VOP) petition against plaintiff with the Orange County Court.
There is no relationship between plaintiff and Kroll, contractual or otherwise. Kroll did not know that plaintiff was the person whose sample was being tested, nor did plaintiff know that Kroll was the one doing the test. The control was strictly with the Probation Department that took the actions here, including deciding to file a VOP petition.
Because it is seemingly offended by what occurred here, the majority creates a new cause of action against third-party drug testing laboratories for “negligent testing” (majority op at 3). But the complaint alleges, at most, that Kroll: (a) had a contract with the County; (b) complied with the terms of the contract; and (c) followed its own guidelines in determining that the level of cannabinoids in plaintiffs sample exceeded its cutoff.
Although the complaint takes issue with Kroll’s alleged negligent issuance of the report and “policy of deliberate indifference,” plaintiffs primary complaint is really directed at what the Probation Department chose to do with the Kroll results, even after the Probation Department was presented with the negative results of plaintiffs independent blood test and the urine test ordered by the court. Indeed, it was the Probation Department that, in its discretion, took plaintiffs oral fluid sample, failed to simultaneously take a urine sample, filed the VOP petition and, according to the complaint, “insisted that because of [Kroll’s] positive test report the VOP proceedings continue.” The Probation Department was in the best position—indeed the only one in any position—to determine how the VOP proceedings against plaintiff would be handled, and certainly not Kroll. Thus, in my view, any relief that plaintiff seeks is better directed at the Probation Department rather than an independent drug laboratory like Kroll which, for all intents and purposes, complied with its contractual obligations.
The majority relies on Espinal v Melville Snow Contrs. (98 NY2d 136 [2002]) in support of this new-found “negligent testing” cause of action, stating that Kroll, through its alleged failure to adhere to certain “professionally accepted testing standards” (majority op at 6), “ ‘launched a force or instrument of *10harm’ ” (Espinal, 98 NY2d at 141, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928]). Forgetting for a moment that such a finding contorts our holding in Espinal beyond its intent, plaintiffs complaint does not even allege that Kroll mishandled, tampered with, improperly collected or misidentified the sample. Moreover, even accepting the allegations in the complaint as true, plaintiff does not deny having any cannabinoids in his system, but only that Kroll utilized a lower cutoff level for cannabinoids than either Orasure Technologies or the United States Department of Health and Human Services Substance Abuse and Mental Health Services Administration’s guidelines use for workplace drug testing—a choice the County made in its contract.
The majority tells us that this “negligent testing” cause of action “is in keeping with that of several other jurisdictions” that have imposed a similar duty (majority op at 7). But certain of the cases upon which the majority relies arise from jurisdictions that utilize the element of foreseeability in determining whether a duty is owed in the first instance (see Berry v National Med. Servs., Inc., 292 Kan 917, 920, 257 P3d 287, 290 [2011]; Sharpe v St. Luke’s Hosp., 573 Pa 90, 96, 821 A2d 1215, 1219 [2003]), whereas under our negligence jurisprudence, foreseeability “determines the scope of the duty once it is determined to exist” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 [2001]). Such authority therefore provides no guidance.
The other cases cited by the majority involve specific, narrow allegations of active negligence by the testing laboratory, such as mishandling, misidentifying or improperly collecting the specimen (see Drake v Laboratory Corp. of Am. Holdings, 2007 WL 776818, 2007 US Dist LEXIS 17430 [ED NY, Mar. 13, 2007, No. 02-CV-1924 (FB/RML)], affd 417 Fed Appx 84 [2d Cir 2011] [allegation that the laboratory sent wrong urine sample for testing]; Sharpe, 573 Pa at 92, 821 A2d at 1217 [hospital sued for allegedly mishandling and/or misidentifying urine sample, but the laboratory that performed the testing and reported the results not sued]; Coleman v Town of Hempstead, 30 F Supp 2d 356, 360 [ED NY 1999] [allegation that laboratory failed to safeguard the plaintiff’s urine sample in chain of custody or provide a split sample for retesting]; Duncan v Afton, Inc., 991 P2d 739, 741 [Wyo 1999] [allegation that laboratory erred in collecting the sample]). Moreover, unlike the situation here, all of the aforementioned cases involve employer/employee relationships.
*11Plaintiff was subjected to mandatory drug testing as part of the terms and conditions of his probation, and the Probation Department had an obligation to ensure that plaintiff was in compliance. Certainly, Orange County had an interest in conducting such testing, and it was the Probation Department’s use, and not Kroll’s, of the results that allegedly caused harm to plaintiff. Moreover, while employees may seek legal redress in the civil courts for any harm caused by inaccurate test results, plaintiff was able to seek relief pursuant to CPL 410.70. He did so in this case, and was eventually successful.
The question whether a laboratory’s alleged mishandling, misidentification or improper collection of a sample will result in a laboratory being answerable in damages on the ground that such alleged misconduct launched a “force or instrument of harm” was, until now, an open one. But because the complaint in this case does not even come close to the allegations made by the test subjects in Drake, Sharpe, Coleman or Duncan, the majority’s “negligent testing” cause of action would certainly encompass those specific, narrow claims where the laboratory actually played a role in bringing about erroneous test results. And, unlike the laboratories in the cases cited by the majority, it is not alleged that Kroll misplaced plaintiffs sample, tested the wrong sample, improperly collected the sample or even reported inaccurate results. Kroll received the sample from the Probation Department, tested it as per its agreement with Orange County and apprised Orange County that the results exceeded its baseline cutoff. At most, the allegations in the complaint attack Kroll’s interpretation of the test results, and not the validity of the sample itself. Thus, even assuming all of the allegations in the complaint are true, Kroll owed no legal duty to plaintiff. If the County of Orange, once sued, chooses to commence a third-party action alleging a contract breach by Kroll, it may do so. But to allow plaintiff to pursue a cause of action in a case such as this opens the door to a host of allegations of a similar nature in areas too numerous to contemplate.