Maharam v. Maharam

• Decision Date: 30 December 1986
• Citation: 510 N.Y.S.2d 104,123 A.D.2d 165
• Parties: Jane MAHARAM, Plaintiff-Respondent, v. Robert D. MAHARAM, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 104

510 N.Y.S.2d 104

123 A.D.2d 165

Jane MAHARAM, Plaintiff-Respondent, v. Robert D. MAHARAM, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Dec. 30, 1986.

Allan D. Mantel, of counsel (Rosenthal, Herman & Mantel, P.C., New York City, attorneys), for defendant-appellant.

Bernard E. Clair, of counsel (Clair & Daniele, New York City, attorneys), for plaintiff-respondent.

Before ASCH, J.P., and FEIN, MILONAS, ROSENBERGER and WALLACH, JJ.

ROSENBERGER, Justice.

The plaintiff and defendant were married in June 1952, and two children, now adults, were born of the marriage. On or about July 26, 1983, plaintiff commenced this action by service of a summons and a verified complaint naming Ann Davis as corespondent. In addition to seeking a divorce on grounds of adultery and cruel and inhuman treatment, and distribution of the marital property, plaintiff asserted third and fourth causes of action for compensatory and punitive damages based upon allegations that defendant fraudulently or negligently infected her with the incurable venereal disease, Herpes Simplex II, commonly known as genital herpes. She alleged, inter alia, that on or about December 4, 1980, she was diagnosed as having genital herpes, and that "upon information and belief, the defendant on a prior occasion contracted genital herpes through sexual relations with third parties other than his wife."

In his verified answer, the husband admitted one allegation of having committed adultery with Ms. Davis on December 4, 1981 and having, since June 1983, maintained an open and notorious relationship with her at a Virginia residence. He neither admitted nor denied the allegations in the first cause of action concerning adultery between 1978 and 1983, but denied all of the allegations in the second, third, and fourth causes of action regarding his association with prostitutes and the infection of his wife with genital herpes.

Special Term granted the husband's motion for partial reverse summary judgment of divorce in favor of the wife on the ground of the commission of acts of adultery by defendant (Domestic Relations Law § 170[4] ), and severed and reserved for trial the ancillary, economic issues and the cause of action for tort damages. The marriage was terminated by judgment entered February 7, 1984.

Pursuant to an agreement of counsel, the parties deferred discovery regarding the personal injury claims until discovery relating to the claim for a distributive award of the marital assets had been completed. Under the agreement the husband had priority to conduct medical discovery. However, after the wife concluded deposing her husband concerning the financial issues, she served him with a notice to submit to a medical examination and to provide necessary medical authorizations pursuant to CPLR 3121. The husband moved for a protective order vacating the notice. The wife opposed the motion and cross-moved for certain relief not relevant here. By order of July 10, 1985, Special Term granted the motion for a protective order and vacated the notice with leave to the wife "to make an application to reserve [sic] a notice for such examination in conjunction with a showing that the factual allegations made set forth a cause of action. (See, e.g. Warren's Negligence, Vol 5B at 563.)"

The wife thereafter made the invited application. The husband cross-moved for summary judgment dismissing the personal injury claims for failure to state a legally cognizable cause of action, or for an evidentiary hearing to determine the bona fides of the factual allegations. Pending hearing of the motion and cross motion, the husband served a subpoena duces tecum upon the family physician and obtained the medical records of the wife.

By order to show cause obtained on the return date of the other motions, the husband moved for leave to amend the verified answer to interpose the affirmative defense of the Statute of Limitations and for dismissal of the tort claims as time-barred. He claimed that the contemporaneously made entry of March 17, 1975 on the medical records of the wife proved she knew, at the latest, that she had been exposed to genital herpes by that date. The entry stated:

Patient comes in with a heavy vaginal discharge. Relates that she had intercourse with husband a couple of days before he broke out with his herpes progenitalias. Inspection shows small ulcers deep within the vaginal vault with a heavy yellowish-greenish discharge which is taken for culture. Patient is started on sultrin vaginal cream plus vinegar douches.

In opposition to the motion to amend and to dismiss, the wife submitted the affidavit of the family physician. He explained that the reference to the medical term "herpes progenitilias" reflected, not the wife's knowledge, but rather his own knowledge that, by 1975, the husband had contracted the disease. He averred that he had respected the husband's privilege and request that his condition not be disclosed by him to the wife. The physician further averred that the symptoms and the diagnostic culture taken on March 4, 1975 had been consistent with a "bacterial (as opposed to a viral) infection", and that he successfully treated the wife for acute bacterial vaginitis. He recalled first communicating the probable diagnosis of genital herpes to the wife on December 4, 1980. An examination on that date revealed for the first time, an outbreak of viral lesions on her face and vagina.

By order entered March 18, 1986, Special Term granted the motion for an order directing the husband to appear for a physical examination and denied the cross motion for summary judgment, finding that the third and fourth causes of action were viable. The court reasoned that the allegations that the husband had a legal duty to disclose his condition to his wife of thirty-one years, breached that duty, and that he caused injury were sufficient to state a negligence claim under Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). As to the fraud claim, the court noted that there is a duty to speak, and in some circumstances the failure to do so is equivalent to fraudulent concealment. Liberally construing the pleadings, in view of the thirty-one year marriage between the parties, the court held that the wife at "a minimum" stated a claim for constructive fraud.

By order entered March 7, 1986, the court also denied the motion of the husband to amend his pleading, finding that there was no meritorious Statute of Limitations defense. The husband appeals from both orders, which appeals have been consolidated.

The record evidence is sufficient to support the order directing the husband to submit to appropriate medical discovery. Section 3121 of the CPLR requires a party whose physical condition is "in controversy" to submit to a physical examination upon notice from another party. Although the husband did not affirmatively place his condition in controversy by counterclaim or excuse, it is in controversy because "he ha[s] undergone a prior physical examination which substantiate[s] or [gives] credence to the allegations of the plaintiff's complaint." Koump v. Smith, 25 N.Y.2d 287, 299,...