Thomas v. Suggs

• Decision Date: 06 March 2018
• Docket Number: Index No.: 159483/2017
• Citation: 2018 NY Slip Op 31635 (U)
• Parties: Jeffrey Thomas, Plaintiffs, v. James Suggs (p/k/a James Hall), Rev. Kevin Bond, Edison Bond and Citadel of Praise and Worship, Inc. Defendants.
• Court: New York Supreme Court

2018 NY Slip Op 31635(U)

Jeffrey Thomas, Plaintiffs, v. James Suggs (p/k/a James Hall), Rev. Kevin Bond,Edison Bond and Citadel of Praise and Worship, Inc. Defendants.

Index No.: 159483/2017

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

RECEIVED: March 8, 2018

March 6, 2018

NYSCEF DOC. NO. 36

DECISION/ORDER

Motion Sequence 001

PAUL A. GOETZ, J.S.C.:

This action arises from the dissolution of an alleged romantic relationship between plaintiff Jeffrey Thomas and James Suggs p/k/a James Hall ("Hall"), who sits on the board of directors of defendant Citadel of Praise and Worship, Inc. ("Citadel"). Defendants move, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action, or in the alternative, pursuant to CPLR 3024(b) to strike paragraphs 2 through 50 of the complaint on the grounds that those allegations are irrelevant to the causes of action asserted by plaintiff and are prejudicial to defendants.

The first through third causes of action arise from defendant Hall's alleged negligent, deliberate and fraudulent conduct in transmitting syphilis to plaintiff during the course of their alleged sexual relationship from December 2014 to approximately December 2016. Defendants argue that plaintiff cannot recover under either a negligence or fraud theory because he cannot possibly prove that he contracted syphilis from defendant Hall or that Hall either knew or should have known that he had syphilis. These facts, however, are specifically alleged in the complaint, along with allegations that plaintiff remained monogamous during the course of the relationship while defendant Hall allegedly had sexual relations with other men. Such allegations, which on a motion to dismiss must be taken as true, are sufficient to withstand a motion to dismiss (Plaza v. Estate of Wisser, 211 A.D.2d 111, 118-119 [1st Dep't 1995] [denying motion to dismiss negligence and fraud claims based on alleged transmission of HIV]).

With respect to the second cause of action for battery, defendants argue that this claim should be dismissed because plaintiff admits in his complaint that he consented to have sexual contact with defendant Hall. However, New York courts recognize a cause of action for battery based on transmission of a sexually transmitted disease through consensual sex, thus implicitly supporting the holding that consent can be vitiated by one partner's fraudulent concealment of the risk of infection (Plaza v. Estate of Wisser, 211 A.D.2d 111, 118 [1st Dep't 1995]; Petri v. Bank of New York, 153 Misc.2d 426, 432 [Sup. Ct. N.Y. Co. 1992]; see also Restatement (Second) of Torts § 892B(2), cmt. E, illus. 5 [1979]; Leleux v. U.S., 178 F.3d 750, 755 [5th Cir. 1999] [defendant's fraudulent concealment of the fact that he had venereal diseases from plaintiff with whom he engaged in sexual intercourse constituted battery]); Johnson v. Jones, 269 Or.App. 12, 17 [Or. Ct. App., 2015]; Kathleen K. v. Robert B., 150 Cal.App.3d 992 [Ca. Ct. App. 2d Dist., 1984]). Accordingly, plaintiff has sufficiently stated a claim for battery.

Defendant Hall also argues that plaintiff's battery claim is time-barred by CPLR 215(3), which requires plaintiff to bring his battery claim within one year of the date of the non-consensual physical contact (Plaza, 211 A.D.2d at 118 [holding that discovery rule does not apply to claims for intentional torts]). Here, plaintiff alleges that he had sexual contact with defendant Hall in December 2016, when they traveled to Italy together. Since plaintiff may have contracted syphilis from Hall as late as December 2016 and this action was commenced in October 2017, plaintiff's battery claim cannot be dismissed as untimely.

Although defendants seek dismissal of the complaint in its entirety, defendants do not assert any arguments in support of dismissing the fourth cause of action for assault and battery against defendant Kevin Bond. Accordingly, this cause of action will not be dismissed.

The fifth and eighth causes of action for malicious prosecution and abuse of process are predicated on a prior lawsuit brought by defendants Hall, Kevin Bond and the Citadel against plaintiff Thomas for defamation, slander, intentional and negligent infliction of emotional distress and a permanent injunction (Affirmation of Carmen Giordano dated November 27, 2017, Exh. B [Summons and Complaint in the action captioned Bond et al. v. Thomas, New York State Supreme Court, New York County, Index No. 155440/2017]). On July 28, 2017, this Court granted the plaintiffs in the prior action a preliminary injunction prohibiting Thomas from, among other things, publishing any photographs of plaintiffs and posting any derogatory comments about plaintiffs (Affirmation of Carmen Giordano dated November 27, 2017, Exh. C). On September 14, 2017, defendant Thomas filed a stipulation to discontinue the prior action with prejudice.

Plaintiff Thomas argues that the prior action was commenced by defendants maliciously to prevent Thomas from exposing his sexual relationship with defendant Hall and that defendants had no probable cause to initiate the prior action. In order to state a claim for malicious prosecution based upon a prior civil action, plaintiff must show (1) the commencement or continuation of a prior proceeding by the defendant; (2) the termination of the prior proceeding in favor of the plaintiff; (3) the absence of probable cause for initiating the prior proceeding; (4) actual malice and (5) special injury, which means that the prior action interfered with plaintiff's person or property, including but not requiring the issuance of provisional remedies, such as arrest, attachment or an injunction (Cantalino v. Danner, 96 N.Y.2d 391 [2001]; Engel v. CBS,Inc., 93 N.Y.2d 195 [1999]; Purdue Fredrick Co. v. Steadfast Ins. Co., 40 A.D.3d 285 [1st Dep't 2007]). Further, "when the underlying action is civil in nature the want of probable cause must be patent" (Fink v. Shawangunk Conservancy Inc., 15 A.D.3d 754, 755 [3d Dep't 2005]).

By granting a preliminary injunction against Thomas in the prior action, this Court found that the plaintiffs in that proceeding had demonstrated a likelihood of success on the merits of their claims. Thus, plaintiff Thomas cannot demonstrate that probable cause was entirely lacking from defendants' underlying defamation action against him (Hornstein v. Wolf, 67 N.Y.2d 721, 723 [1986] [upholding dismissal of malicious prosecution claim where plaintiff failed to plead facts sufficient to overcome the presumption of probable cause based on the temporary restraining orders issued in the prior action]; I.G. Second Generation Partners v. Duane Reade, 17 A.D. 206, 207 [1st Dep't 2007] [holding that a judgment rendered in prior action was prima facie evidence that prior action was based on probable cause]; Fink, 15 A.D.3d at 754-55 [holding that defendant had probable cause to commence underlying quiet title action where plaintiff's deed was ambiguous and there were questions of fact surrounding defendant's adverse possession claim]; Wilderhomes, LLC v. Zautner, 23 Misc.3d 1112(A) [Sup. Ct. Albany Cty., 2009] [holding that denial of motion to dismiss in prior action constitutes judicial recognition of the existence of probable cause for the action]). Accordingly, plaintiff's cause of action for malicious prosecution must be dismissed.

The abuse of process claim similarly does not survive. "Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v. Suozzi, 63 N.Y.2d 113, 116 [1984]). Further, "the gist of the action for abuse of process lies in the improper use of process after it is issued" (Williams v.Williams, 23 N.Y.2d 592, 569 [1969] [internal citations and quotations omitted]). Here, plaintiff does not allege that after this Court issued the preliminary injunction in the prior action, defendants used that injunction "to gain an advantage collateral to its legitimate ends", which was to prevent plaintiff from publishing photographs or derogatory comments about defendants (Bonarco, Ltd. v. Cossingion Overseas, 269 A.D.2d 158, 158-59 [1st Dep't 2000] [holding that Russian court's restraining order on plaintiff's sale of stock was insufficient to support abuse of process claim]; I.G. Second Generation, 17 A.D. at 207-08 [stating that there was no indication that "process" was perversely utilized by defendants where defendants in prior action sought declaration that they were entitled to possession of the subject premises which relief was entirely appropriate and not collateral to defendants' objective of securing an exclusive right to the premises]). Moreover, the allegation that defendants were motivated by malice and hatred in bringing the prior action is insufficient to give rise to a cause of action for abuse of process (I.G. Second Generation, 17 A.D.3d at 207). Accordingly, this cause of action must also be dismissed.

Defendants also seek to dismiss the sixth cause of action in the complaint for defamation, slander, and liber per se, arguing that plaintiff has failed to set forth with sufficient particularity the words allegedly used by defendants. Under CPLR 3016, in an action for libel, slander or defamation, a plaintiff must set forth "the particular words complained of" in the complaint and must also allege the time, manner and persons to whom the publication was made (BCRE 230 Riverside LLC v. Fuchs, 59 A.D.3d 282 [1st Dep't 2009]; Simpson v. Cook Pony Farm Real Estate, 12 A.D.3d 496 [2d Dep't 2004]). Here, plaintiff alleges that defendant Hall posted on Facebook and told others, including Elithea Sparks, Lawrence W. and members of the Citadel, that Thomas was a liar, that he was delusional, and that he and Thomas were not lovers. Such allegations are deficient because they fail to allege ...