M.P.V. v. A.V.
Docket Index No. 300003/17|Appeal No. 6525M-1539|Case No. 2025-00571|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02807
- Docket numbers
- Index No300003/17Appeal No6525M-1539Case No2025-00571
Appeal from Supreme Court, Bronx County order granting plaintiff summary judgment on liability and denying defendant's cross-motion to dismiss STD-related claims
Summary
The Appellate Division, First Department affirmed Supreme Court's order granting plaintiff M.P. summary judgment on liability for battery, assault, and false imprisonment and denied defendant A.'s cross-motion to dismiss claims based on wrongful transmission of a sexually transmitted disease (STD). The court found the plaintiff's sworn affidavit and exhibits (photographs, arrest report, police report) established a prima facie case and that the defendant submitted no evidence creating a triable issue. The court also allowed the complaint to be conformed to proof to include the STD transmission claim and ordered a trial solely on damages.
Issues Decided
- Whether plaintiff established prima facie entitlement to summary judgment on liability for battery, assault, and false imprisonment
- Whether defendant's submissions raised a triable issue of fact to defeat summary judgment
- Whether the court properly denied defendant's cross-motion to dismiss claims for wrongful transmission of an STD when that claim was not specifically pleaded but was supported by the proof
- Whether the pleadings could be conformed to the proof without prejudicing the defendant
Court's Reasoning
The court held that plaintiff's sworn affidavit and supporting exhibits (injury photographs, arrest report, police report) were sufficient to establish a prima facie case of assault, battery, and false imprisonment. Because the defendant failed to submit evidence creating a triable issue under CPLR 3212(b), summary judgment on liability was proper. The court also concluded that, although the STD transmission cause of action was not expressly pleaded, the facts supporting it were alleged and the defendant was not surprised or prejudiced, so conforming the pleadings to the proof and granting summary judgment on liability for that claim was appropriate.
Authorities Cited
- Cadet v Ayers203 AD3d 539 (1st Dept 2022)
- Tower Ins. Co. of N.Y. v Old N. Blvd. Rest. Corp.245 AD2d 241 (1st Dept 1997)
- Broughton v State37 NY2d 451 (1975)
- CPLR 3212(b)
- Desideri v Brown184 AD2d 247 (1st Dept 1992)
- Cave v Kollar2 AD3d 386 (2d Dept 2003)
Parties
- Plaintiff
- M.P. (M.P.V.)
- Defendant
- A. (A.V.)
- Appellant
- A. (defendant-appellant)
- Appellee
- M.P. (plaintiff-respondent)
- Attorney
- Robert G. Leino (for appellant)
- Judge
- Veronica G. Hummel (Supreme Court, Bronx County)
- Judge
- Webber, J.P. (Appellate Division)
- Judge
- Moulton, J. (Appellate Division)
- Judge
- Mendez, J. (Appellate Division)
- Judge
- Higgitt, J. (Appellate Division)
- Judge
- Michael, J. (Appellate Division)
Key Dates
- Decision date
- 2026-05-05
- Supreme Court order entered
- 2024-12-23
- Appeal No. docketed (case number)
- 2025-00-571
What You Should Do Next
- 1
Prepare for damages trial
Both parties should gather evidence and witnesses relevant to damages, including medical records, expert reports, and proof of emotional or economic losses.
- 2
Consult appellate counsel
If the defendant wishes to challenge the affirmance further, they should consult appellate counsel promptly about seeking leave to appeal to the Court of Appeals and applicable deadlines.
- 3
Conform pleadings and pretrial submissions
Plaintiff should ensure the complaint and pretrial materials reflect the STD claim as conformed to the proof; defendant should file any pretrial motions or defenses to damages evidence.
Frequently Asked Questions
- What did the court rule?
- The appeals court upheld the lower court's ruling that the plaintiff proved liability for assault, battery, false imprisonment, and wrongful transmission of an STD; only damages remain to be decided at trial.
- Who is affected by this decision?
- The plaintiff (M.P.) and defendant (A.) are directly affected: plaintiff has liability established in her favor; defendant will face a trial on damages.
- Why was the defendant's challenge unsuccessful?
- Because the defendant failed to present evidence creating a triable issue to defeat the plaintiff's sworn evidence and exhibits, and was not prejudiced by the pleadings being conformed to include the STD transmission claim.
- What happens next?
- A trial will be held to determine how much the plaintiff should recover for personal injuries and for wrongful transmission of an STD.
- Can this decision be appealed further?
- Yes; the defendant may seek further review to a higher court, subject to appellate rules and deadlines, but the Appellate Division affirmed liability.
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Full Filing Text
M.P.V. v A.V. - 2026 NY Slip Op 02807 M.P.V. v A.V. 2026 NY Slip Op 02807 May 5, 2026 Appellate Division, First Department M.P., Plaintiff-Respondent, v A.., Defendant-Appellant. Decided and Entered: May 05, 2026 Index No. 300003/17|Appeal No. 6525M-1539|Case No. 2025-00571| Before: Webber, J.P., Moulton, Mendez, Higgitt, Michael, JJ. Robert G. Leino, New York, for appellant. M.P.V., respondent pro se. Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about December 23, 2024, which, to the extent appealed from as limited by the briefs, granted pro se plaintiff's motion for summary judgment on her causes of action for battery (first cause of action), assault (second cause of action), and false imprisonment (third cause of action) insofar as it sought summary judgment on liability, denied defendant's cross-motion for summary judgment dismissing any claim based on wrongful transmission of a sexually transmitted disease (STD), and ordered a trial to determine damages for personal injuries and the wrongful transmission of an STD, unanimously affirmed, without costs. Plaintiff's evidence on her motion, including her sworn affidavit supported by numerous exhibits such as photographs of her injuries, an arrest report from the New York Unified Court System website, and her report to the Special Victims Unit of the New York Police Department, established prima facie that defendant assaulted, battered, and falsely imprisoned her ( see Cadet v Ayers, 203 AD3d 539, 539 [1st Dept 2022]; Tower Ins. Co. of N.Y. v Old N. Blvd. Rest. Corp. , 245 AD2d 241, 242 [1st Dept 1997]; Broughton v State , 37 NY2d 451, 456 [1975]). Defendant did not submit any evidence in opposition sufficient to raise a triable issue of fact ( see CPLR 3212[b]). In addition, although plaintiff did not specifically plead a cause of action alleging that defendant wrongfully infected her with an STD, Supreme Court properly denied defendant's cross-motion to dismiss all claims for damages based on the wrongful transmission of an STD and, upon conforming the pleadings to the proof, awarded plaintiff summary judgment as to liability on that claim ( see Desideri v Brown , 184 AD2d 247, 247 [1st Dept 1992]; Cave v Kollar, 2 AD3d 386, 388 [2d Dept 2003]). Even though plaintiff did not specifically plead the claim in the complaint, she alleged the facts underlying it, and the record establishes that defendant was neither surprised nor prejudiced by plaintiff's request for damages arising from that claim. In addition, defendant did not submit any evidence in opposition sufficient to rebut plaintiff's prima facie showing that he had wrongfully transmitted an STD. We have considered defendant's remaining arguments and find them unavailing. M-1539 — M.P.V. v A.V. Plaintiff's motion seeking leave to file a sur-reply or, in the alternative, striking defendant's reply brief, denied as academic. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: May 5, 2026