Giordano v. Mkt. Am., Inc., 289 F. App'x 467 (2d Cir. 2008), New York courts do not appear to have expressly held that claims under § 214-c cannot be equitably tolled. Defendants overstate the Appellate Division's holding in Byrd v. Pinecrest Manor, 918 N.Y.S.2d 558 (App. Div. 2011). Compare Reply at 3 (describing Byrd as "holding that, where the statute of limitations under CPLR 214-c has run, 'the doctrine of equitable estoppel has no application'"), with Byrd, 918 N.Y.S.2d at 560 ("Contrary to the plaintiffs' contention, the doctrine of equitable estoppel has no application under the circumstances presented."
It is undisputed that plaintiff was aware of mold damage to her property at least by September 6, 2013, which is more than three years prior to the commencement of this action (seeCPLR 214). Indeed, the record demonstrates that, "through the exercise of reasonable diligence" (see CPLR 214-c [3]), plaintiff could have been aware of the damage at issue prior to September 6, 2013 (see Kamath v Building New Lifestyles, Ltd., 146 AD3d 765 [2017]; Byrd v Manor, 82 AD3d 813 [2011]; Searle v City of New Rochelle, 293 AD2d 735 [2002]), and plaintiff did not demonstrate that any of the claimed damage occurred within the requisite three-year period (see Gordon v ROL Realty Co., 150 AD3d 466 [2017]).
Based on that documentation, the defendant argued in an attorney affirmation in support of the motion that it was just as likely that the decedent's injury was caused by one of his prior accidents. However, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, as it failed to submit expert medical evidence that the decedent's subdural hematoma was not caused by the subject accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Byrd v Pinecrest Manor, 82 AD3d 813, 815). Since the defendant failed to meet its prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Moreover, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion for leave to amend the complaint, as the proposed amendment was patently devoid of merit. The Appellate Division, First Department, concluded that the complaint in the underlying action was properly dismissed because the plaintiff commenced that action after the applicable statute of limitations had expired ( see Magidson v. Otterman, 57 A.D.3d 264, 264, 868 N.Y.S.2d 205), and the proposed amendment, which did not include allegations that the defendants committed malpractice by failing to timely commence the underlying action, would not alter that result ( see Matter of New York County DES Litig., 89 N.Y.2d 506, 514, 655 N.Y.S.2d 862, 678 N.E.2d 474; Byrd v. Manor, 82 A.D.3d 813, 815, 918 N.Y.S.2d 558).
Nevertheless, Nova has also not excluded the possibility that plaintiffs later suffered from separate and distinct diseases (see Wells v 3M Co., 137 AD3d 1 556, 1557 [3d Dept 2016]). Furthermore, Nova has not submitted any evidence demonstrating when plaintiffs were aware that their apartment was contaminated with mold (cf. Byrd v Pinecrest Manor, 82 AD3d 813, 815 [2d Dept 2011]; Searle v City of New Rochelle, 293 AD2d 735, 736-737 [2d Dept 2002]). Accordingly, the branch of Nova's motion seeking dismissal of plaintiff's personal injury claims as time-barred must be denied.
A cause of action based on exposure to mold is subject to a three-year statute of limitations, measured "from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff." (CPLR 214-c[2]; Byrd v Pinecrest Manor, 82 AD3d 813, 815 [2d Dept 2011], quoting Searle v City of New Rochelle, 293 AD2d 735, 736 [2d Dept 2002] ["A plaintiff's cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e. when the injury is apparent, not when the specific cause of the injury is identified."]).
"A plaintiff's cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e when the injury is apparent, not when the specific cause of the injury is identified" (Searle v. City of New Rochelle, 293 AD2d 735, 736...; see Matter of New York County DES Litig., 89 NY2d at 506, 509...).Byrd v. Pinecrest Manor, 82 AD3d 813, 815 (2d Dept. 2011) (emphasis added). See also, Kamath v. Building New Lifestyles, Ltd., 146 AD3d 765, 767 (2d Dept. 2017); Suffolk County Water Authority v. Dow Chemical Co., 121 AD3d 50, 57 (2d Dept. 2014).
CPLR 214-c provides a three-year statute of limitations for latent injuries to persons or property caused by exposure to harmful substances, beginning on the date the injury is discovered or should have been discovered by a reasonably diligent plaintiff, whichever is earlier (see Byrd v Manor, 82 AD3d 813, 918 NYS2d 558 [2d Dept 2011]; Miller Realty Assoc v Amendola, 51 AD3d 987, 859 NYS2d 258 [2d Dept 2008]). A cause of action for damages resulting from exposure to toxic substances accrues when the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, i.e. when the injury is apparent, not when the specific cause of the injury is identified (see Matter of New York County DES Litigation, 89 NY2d 506, 655 NYS2d 862 [1997]; Byrd v Manorsupra; Searle v City of New Rochelle, 293 AD2d 735, 742 NYS2d 314 [2d Dept 2002]).
CPLR 214 (4) provides a three year period within which to commence an action to recover damages for an injury to property except as provided in section 214-c. Under CPLR 214 -c, "discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based" (Byrd v Manor, 82 AD3d 813 [2011]) (internal citations omitted). Since the oil spill is the primary condition on which the plaintiff's claim is based, and plaintiff was fully aware of such spill at the time of its occurrence, VDP has no cause of action under this provision.
CPLR 214(4) provides a three year period within which to commence an action to recover damages for an injury to property except as provided in section 214–c. Under CPLR 214 -c, “discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based” ( Byrd v. Manor, 82 AD3d 813 [2011] ) (internal citations omitted). Since the oil spill is the primary condition on which the plaintiff's claim is based, and plaintiff was fully aware of such spill at the time of its occurrence, VDP has no cause of action under this provision.