Tischler v. Dimenna

• Citation: 609 N.Y.S.2d 1002,160 Misc.2d 525
• Parties: Connie TISCHLER, Plaintiff, v. Phyliss DIMENNA, Executrix of the Estate of Robert L. Lawson, a/k/a Robert L. Lawson, Sr., Defendant.
• Decision Date: 01 March 1994
• Court: New York Supreme Court

Page 1002

609 N.Y.S.2d 1002

160 Misc.2d 525

Connie TISCHLER, Plaintiff, v. Phyliss DIMENNA, Executrix of the Estate of Robert L Lawson, a/k/a Robert L. Lawson, Sr., Defendant.

Supreme Court, Westchester County.

March 1, 1994.

Rocco Conte, O'Connor McGuinness Conte Doyle Oleson & Collins, White Plains, for defendant.

Stephen P. Long, Rubin Kalnick & Balin, P.C., New York City, for plaintiff.

JOAN B. LEFKOWITZ, Justice.

Factual Background

During the period February 1980 until the summer of 1989 plaintiff and Robert Lawson, now deceased, engaged in unprotected sexual intercourse (vaginal, fellatio and cunnilingus). Beginning in the summer of 1989 the parties made sporadic use of condoms. Plaintiff and Mr. Lawson lived together for several years and contemplated marriage.

Plaintiff alleges in her complaint that prior to his death, Robert Lawson contracted "HIV (AIDS) Virus, that eventually caused his death and failed to so advise plaintiff at any time during their relationship" (Complaint para. 5). Decedent is survived by a Plaintiff claims that Mr. Lawson became infected with the HIV virus sometime in 1990 as she was told that by Mr. Lawson on his deathbed in December 1991. She stated that Mr. Lawson's best male friend died in 1990 and she believes now that Mr. Lawson and that friend had a homosexual relationship.

                daughter.   Plaintiff sues the estate of Robert Lawson for $1,000,000 damages for intentional tort and negligence.   Defendant denies the allegations and asserts an affirmative defense of culpable conduct and assumption of risk
                

As of February 1993 plaintiff has been tested three times for the HIV virus with negative results. The last test was on January 15, 1993.

This action was commenced in June 1992. [Portions of factual background deleted for publication.]

Arguments

Defendant moves for summary judgment dismissing the complaint on two grounds: (1) that plaintiff has not suffered a physical injury and absent a verifiable precipitating event, the claim is not cognizable; and (2) the only proof of sexual conduct between plaintiff and the decedent is her word and such testimony would be barred under the Deadman's Statute, CPLR 4519, so that the case could never be proven at trial.

Plaintiff vigorously opposes the motion through her counsel's affidavit, claiming that the law supports an AIDS-phobia claim where, as here, there exists indicia of legitimacy and, further, that on a motion for summary judgment the Court may consider evidence that might ultimately be barred by statute at trial.

[The Court discussed the principles applicable to summary judgment motions and held that the Deadman's Statute (CPLR 4519) did not bar evidence of plaintiff's sexual activity with defendant while he was alive, so that the merits of the phobia claim had to be addressed. The Court also observed that claims for emotional distress without physical injury were recognized in New York.]

Phobia Cases

In the landmark decision of the Court of Appeals in Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958), reh. den. 5 N.Y.2d 793, 180 N.Y.S.2d 1025, 154 N.E.2d 581 (annotated at 71 ALR 2d 338 [1960], Damages--Anxiety Future Condition; superseded in Ann. 50 ALR 4th 13 [1986], Damages--Future Disease), the Court sustained a claim of cancer phobia upon a statement by a physician to the patient after a radiation burn that she might contract cancer. The circumstances surrounding the incident--the radiation burn and doctor's advice--provided a "guarantee of genuineness" to the claim (5 N.Y.2d at 21, 176 N.Y.S.2d 996, 152 N.E.2d 249). Also see, Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (Supreme Ct. In Bank 1993) (distinguishing between fear of cancer and cancer phobia).

Nevertheless, the courts of this state have rejected cancer phobia and cancerlike-phobia claims (i.e., asbestos phobia) where there were no chemical manifestations of the disease and no reasonable basis that the disease would develop. Winik v. Jewish Hosp. of Brooklyn, 31 N.Y.2d 936, 340 N.Y.S.2d 927, 293 N.E.2d 95 (1972); Conway v. Brooklyn Union Gas Co., 189 A.D.2d 851, 592 N.Y.S.2d 782 (2d Dep't 1993); Acevedo v. Consol. Edison Co., 151 Misc.2d 347, 572 N.Y.S.2d 1015 (Supreme Ct.New York 1991), mod., 189 A.D.2d 497, 596 N.Y.S.2d 68 (1st Dep't 1993); Rittenhouse v. St. Regis Hotel, 149 Misc.2d 452, 565 N.Y.S.2d 365 (Supreme Ct.New York 1990), rvd. other gr., 180 A.D.2d 523, 579 N.Y.S.2d 100 (1st Dep't 1992). Similar judicial reluctance appears in other fear or phobia claim cases. Creed v. United Hosp., 190 A.D.2d 489, 600 N.Y.S.2d 151 (2d Dep't 1993); DeRosa v. Michelman, P.C., 184 A.D.2d 490, 584 N.Y.S.2d 202 (2d Dep't 1992); Vossler v. Amin, 175 A.D.2d 570, 572 N.Y.S.2d 238 (4th Dep't 1991); Lancellotti v. Howard, 155 A.D.2d 588, 547 N.Y.S.2d 654 (2d Dep't 1989). The policy reason behind these rulings has less to do with feigned claims; rather, it is the guarantee of trustworthiness of the claim that is lacking, as recovery for damages for the possibility of obtaining a future disease as a

                result of a present physical injury requires medical proof of a reasonable certainty that such developments will occur.  Matott v. Ward, 48 N.Y.2d 455, 461, 423 N.Y.S.2d 645, 399 N.E.2d 532 (1979);  Strohm v. New York, Lake Erie & Western R.R. Co., 96 N.Y. 305 (1884).   Where medical proof is sufficient, phobia claims are compensable.   36 NY Jur.2d, Damages § 98 [Other authorities deleted for publication.]
                

SEXUALLY TRANSMITTED DISEASES

Duty of Partners

The law of tortious wrongs, intentional and negligent, recognizes claims for sexually transmitted diseases (STD). (White v. Nellis, 31 N.Y. 405 [1865] [venereal disease]; Maharam v. Maharam, 123 A.D.2d 165, 170-71, 510 N.Y.S.2d 104 [1st Dept. 1986] [genital herpes]; Doe v. Roe, 157 Misc.2d 690, 598 N.Y.S.2d 678, 680 [Just. Ct. Rockland County 1993] [chlamydia]; Annotation, Tortious Transmission of Venereal Disease, 40 ALR 4th 1089; Porter, Cause of Action for Negligent Transmission of Contagious or Infectious Disease in 22 Causes of Action at 1 [1991]; Tort Liability Between Sexual Partners, 43 Am.Jur., Trials § 157; Note, Liability in Tort for the Sexual Transmission of Disease; Genital Herpes and the Law, 70 Cornell L Rev 101 [1984].) The usual principles underlying causes of action apply, to wit: defendant must have owed a duty to the plaintiff that was breached and proximately caused the condition complained of. The duty has been found to exist in the relationship between the parties where the defendant knew or should have known that he had a communicable disease. (Doe v. Roe, supra, 598 N.Y.S.2d 678; R.A.P. v. B.J.P., 428 N.W.2d 103 [Minn.1988] [herpes].) Similar rules apply to AIDS cases (C.A.U. v. R.L., 438 N.W.2d 441 [Minn.1989]; Dornette, AIDS and The Law §§ 2.24, 8.1, 8.2, 8.3, 8.4, 8.9 [Wiley & Sons 1987] [hereafter Dornette]; Herman & Schurgio, Legal Aspects of AIDS §§ 3.16-3.19 [Callaghan 1991]; AIDS Law & Litigation Rep., vols. 1-4 and Monthly Review; comment, 91 Dick.L.Rev 529, 537-49 (1986), You Never Told Me ... You Never Asked; Tort Liability for the Sexual Transmission of AIDS). However, in New York for policy reasons against involuntary testing, AIDS is not listed by the state health authorities as a sexually transmittable disease, though it is communicable through sexual contact. Socy. of Surgeons v. Axelrod, 77 N.Y.2d 677, 682, 569 N.Y.S.2d 922, 572 N.E.2d 605 (1991); see Matter of Doe v. Coughlin, 71 N.Y.2d 48, 57, 60, 523 N.Y.S.2d 782, 518 N.E.2d 536 (1987); Doe v. Roe, 155 Misc.2d 392, 398, 588 N.Y.S.2d 236 (Supreme Ct. Onondaga 1992), mod. 190 A.D.2d 463, 599 N.Y.S.2d 350 (4th Dep't 1993); Matter of John Doe (City of New York), 15 F.2d 264 (2d Cir.1994) (constitutional right to privacy recognized as to HIV status); Cf. Public Health Law § 2785; Doe v. State of New York, 152 Misc.2d 922, 579 N.Y.S.2d 822 (Ct. Claims 1991); Flynn v. Doe, 146 Misc.2d 934, 553 N.Y.S.2d 288 (Supreme Ct. New York 1990) (no legal justification to use pseudonyms for true names when decedent died of AIDS in action against estate for decedent's concealment of condition).

AIDS

Acquired Immune Deficiency Syndrome, for which AIDS is an acronym, is a disease that affects the human immune system by way of a human immunodeficiency virus (HIV). Scientists have also referred to HIV as HTLV-III (Human T-Lymphotropic Virus Type III) and LAV (Lymphadenopathy). Note, First, Do No Harm, 12 Pace L.Rev. 665, 668, n. 14 (1992). Persons with AIDS are infected with HIV and have a T-cell count of less than 200 and exhibit one or more of several symptoms listed by the federal Centers for Disease Control. Sangree, Control of Childbearing by HIV-Positive Women: Some Responses to Emerging Legal Policies, 41 Buff.L.Rev. 309, 311 n. 2 (1993); Dornette, supra, § 1.15 and Appendix B, pp. 264-66; Am.Jr. Proof of Facts 3rd, Cyclopedic Medical Dictionary, AIDS, pp. 53-55. There is no known cure for AIDS which is always fatal (Socy. of Surgeons v. Axelrod, supra, 77 N.Y.2d 677, 569 N.Y.S.2d 922, 572 N.E.2d 605), since it destroys the body's ability to defend itself against infection. Dornette, supra, § 3.2; 2 Gordy-Gray, Attorney's Textbook of Medicine, pp 46.10-46.30. It has been estimated that one and one half million persons in the United States (and five million worldwide) have the HIV virus (Note, 62 Ford L.Rev. 225, 226 [1993], Can HIV-Negative Plaintiffs Recover Emotional Distress Damages for Their Fear of AIDS? [hereafter referred to as "Note, HIV-Negative"]. Approximately two hundred and ten thousand persons in the United States have died from AIDS or complications thereof. NY Times 2/15/94, C1, Consummate Politician on the AIDS Front.

In discussing the qualities, etiology, epidemiology and methodology of AIDS the Court is taking judicial notice of those medical facts which are now considered indisputable. Matter of Lahey v. Kelly, 71 N.Y.2d 135, 143, 524...