Lawsuit Against Husband for Not Disclosing That He Had Genital Herpes
In Maharam v. Maharam (123 AD2d 165), the wife's action was commenced in 1983, and it was undisputed that the husband knew in 1975 that he had genital herpes.
The complaint alleged that the husband's continuing failure to disclose that he had contracted herpes resulted in injury to the wife who was treated for certain symptoms in 1975, but claimed that her physician did not diagnose her as having herpes until December 1980.
While the court held that the wife's complaint stated a cause of action, sounding in "constructive, if not actual, fraud," it also held that the husband's Statute of Limitations defense was viable in that there was an issue of fact, to be determined at trial, as to whether or not the wife had learned that she had genital herpes some time between 1975 and December 1980 ( id., at 170).
The court reasoned that the husband's fraudulent conduct, of failing to disclose his illness, continued only until such time as the wife knew that she had contracted genital herpes.
Once the fraudulent conduct ceased, the wife in Maharam (supra) had six years within which to commence an action for damages.
If the wife in Maharam (supra) first learned that she had herpes in 1975, the Statute of Limitations of six years set forth in both CPLR 213 (1) and 213 (8) would have expired in 1981, making the action commenced in 1983 untimely.
If the husband's fraudulent failure to disclose continued until December 1980, the Statute of Limitations would not expire until six years later in 1986.
However, as the wife admittedly discovered she had herpes in December 1980, and did not commence an action until almost three years later in 1983, the two years from discovery exception of CPLR 213 (8) was never applicable or relevant in Maharam (supra), and that court never had to reach the issue of whether or not the husband's alleged conduct constituted actual fraud.