Plaza v. Estate of Wisser

211 A.D.2d 111, 626 N.Y.S.2d 446, 1995 N.Y. App. Div. LEXIS 4569
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 25, 1995
StatusPublished
Cited by21 cases

This text of 211 A.D.2d 111 (Plaza v. Estate of Wisser) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plaza v. Estate of Wisser, 211 A.D.2d 111, 626 N.Y.S.2d 446, 1995 N.Y. App. Div. LEXIS 4569 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

In this action plaintiff seeks to recover against the estate of his now-deceased companion for decedent’s allegedly negligent, deliberate and fraudulent conduct in causing the Human Immunodeficiency Virus (HIV) to be transmitted to plaintiff. Plaintiff also seeks recovery against decedent’s parents—in both their individual capacities and as administrators of the estate—alleging, inter alia, intentional infliction of emotional distress, a fraudulent conveyance in violation of article 10 of the Debtor and Creditor Law, breach of contract and anticipatory breach of contract.

Plaintiff’s version of the facts is as follows: He met decedent on August 12, 1986, and moved in with him approximately two months later. The two continuously lived together in a monogamous relationship until December 17, 1992, when decedent died from AIDS-related complications. Plaintiff’s sex[115]*115ual contact with decedent, his first—and only—sexual partner, was the only high-risk activity in which plaintiff engaged. Some weeks after they began to live together decedent told plaintiff that he "had had no other homosexual relationships involving penetration.”

Approximately four years after they began living together (in September or October of 1990), decedent developed what looked to plaintiff like a chicken pox pustule on his forehead. Plaintiff suggested that decedent see a physician, but decedent decided to wait a few days and see if it would disappear. When the condition became worse, decedent visited a doctor and told plaintiff afterward that he was "not contagious” and plaintiff "had nothing to worry about.” About two weeks later, decedent found out that he tested positive for HIV antibodies and told plaintiff that he was infected with the virus that causes AIDS.

At about the same time, decedent told plaintiff that his former partner, whom he described as a "very wild, promiscuous, person,” "killed” him, and that he broke off the relationship because of his former partner’s promiscuity. Plaintiff had no reason to believe that decedent, whom he believed to be a healthy person, was HIV positive until decedent advised him of the fact. Plaintiff asserts that decedent’s former partner was HIV positive and that decedent knew of this fact before he found out that he himself was HIV positive and withheld the information from plaintiff. Plaintiff remained decedent’s partner and became decedent’s sole caregiver until he died in December 1992, but never again engaged in any high-risk behavior with him. In or about February .1993, plaintiff tested positive for HIV antibodies and commenced this action on August 23,1993, approximately six months thereafter.

The amended verified complaint dated November 9, 19931 pleads twelve causes of action, the first seven of which are against the estate, with the remaining against decedent’s parents in their individual capacity (the eighth) and as coadministrators of the estate (ninth through twelfth). The first and second causes of action allege, respectively, decedent’s [116]*116intentional and negligent infliction of emotional distress in failing to exercise safe sex precautions and exposing plaintiff to and transmitting to him the HIV infection. In the third cause of action, plaintiff alleges that decedent, by failing to inform plaintiff of his probable HIV status and failing to exercise safer sex precautions, negligently transmitted the AIDS virus to plaintiff. The fourth cause of action alleges a battery, in that decedent intentionally failed to inform plaintiff of his HIV status and intentionally engaged in harmful contact with plaintiff, thereby causing plaintiff to become infected with the AIDS virus. The fifth cause of action is based on decedent’s fraudulent concealment of the fact that he was infected with the AIDS virus. Plaintiff alleges that after decedent returned from his visit to the doctor, decedent, knowing or having reason to know that he was infected with the AIDS virus, fraudulently told plaintiff that plaintiff "had nothing to worry about” and fraudulently failed to inform plaintiff about the HIV test decedent underwent in order to induce plaintiff to engage in unprotected sexual relations with decedent. The sixth cause of action alleges decedent’s fraudulent transmission of the AIDS virus, specifically, that decedent represented to plaintiff that he was healthy when he knew or had reason to know that he was at high risk of being infected with the AIDS virus, thereby intending to induce and inducing plaintiff to have anal intercourse with him. The seventh cause of action alleges a violation of Public Health Law § 2307, which provides that any person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another shall be guilty of a misdemeanor.

The remaining causes of action are against the Wissers, decedent’s parents—either in their individual capacity or as coadministrators of the estate. The eighth cause of action alleges the Wissers’ intentional infliction of emotional distress for the manner in which they treated plaintiff at decedent’s funeral. The ninth cause of action alleges the Wissers’ breach of fiduciary duty and intentional infliction of emotional distress based on their conveyance of decedent’s condominium apartment in violation of decedent’s assurances to plaintiff that he would be allowed to continue residing in the apartment. The tenth cause of action alleges the Wissers’ fraudulent conveyance of decedent’s real property knowing that plaintiff had a right to remain in the premises. Finally, the eleventh and twelfth causes of action allege, respectively, the [117]*117Wissers’ breach and anticipatory breach of an agreement to provide financial support for plaintiff.

Plaintiff moved for a preliminary injunction, inter alia, to compel the Wissers to make monthly payments to plaintiff and for disclosure of confidential HIV-related information pursuant to Public Health Law § 2785 (2) (a). Defendants cross-moved for a protective order with respect to the confidential medical records of decedent and to dismiss the complaint pursuant to CPLR 3211 (a) (7). The court concluded that plaintiff had failed to make out a valid cause of action against the estate either in negligence, battery, fraud or breach of contract, stating that his concession of knowledge of pertinent information belied his claim that he had been deceived. In addition, the court held that, given the two and a half years that have elapsed since the information was revealed and the six-year term of the relationship, the fraud and battery claims are time barred (see, CPLR 213 [8]; 203 [g]; 215 [3]). The court found "[e]qually vague and unenforceable” the claim that the estate is liable for an alleged commitment that plaintiff could continue to reside in decedent’s condominium with all expenses paid. It also dismissed the causes of action against decedent’s parents and denied as moot plaintiff’s motions for disclosure and injunctive relief and defendants’ cross motion for a protective order.

Plaintiff initially argues that the negligence, battery and fraud causes of action against the estate for the wrongful transmission of the AIDS virus were timely since transmission of the HIV virus constitutes a toxic tort (see, CPLR 214-c [2]) and, accordingly, these causes of action did not accrue until plaintiff discovered his injury in February 1993, less than three years prior to the commencement of the action.

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Bluebook (online)
211 A.D.2d 111, 626 N.Y.S.2d 446, 1995 N.Y. App. Div. LEXIS 4569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plaza-v-estate-of-wisser-nyappdiv-1995.