Summary
finding symptoms too isolated or inconsequential to trigger statute of limitations where "[w]hile plaintiff complained of shortness of breath and had intermittent coughs, her physical activities were not affected"
Summary of this case from Rouviere v. Howmedica Osteonics Corp.Opinion
2561.
Decided December 23, 2003.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered May 13, 2003, which denied defendant-appellant's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Marc R. Thompson, for Plaintiff-Respondent.
Susan Jacquemot, for Defendant-Appellant.
Before: Buckley, P.J., Sullivan, Ellerin, Williams, Gonzalez, JJ.
Insofar as based on CPLR 214-c(2), the motion was properly denied for failure to show that plaintiff discovered the primary condition on which the claim is based before September 1992, more than three years before she instituted the action ( Matter of New York County DES Litig., 89 N.Y.2d 506, 509, 514). To the extent that plaintiff may have exhibited some symptoms after her alleged exposure to chemical fumes and before September 1992, those "'early symptoms [were] too isolated or inconsequential to trigger the running of the Statute of Limitations under CPLR 214-c(2)'" ( O'Halloran v. 345 Park Co., 251 A.D.2d 260, lv dismissed 92 N.Y.2d 1026, quoting DES Litig., id. at 514, n4; see also Johnson v. Exxon Corp., 258 A.D.2d 946). While plaintiff complained of shortness of breath and had intermittent coughs, her physical activities were not affected, she did not miss work until February 1993, she was not diagnosed with chronic obstructive pulmonary disease, her claimed injury, until June 1993, she did not stop working until July 1993 and she did not file a workers' compensation claim until August 1993 ( compare Whitney v. Quaker Chem. Corp., 90 N.Y.2d 845).
Defendant also fails to establish that it did not owe plaintiff a duty of care. There is evidence that chemical spills were produced when defendant serviced the equipment at issue, that the chemical fumes were particularly intense after servicing and that plaintiff continually complained to defendant's service representatives about the chemical odors in the darkroom where she worked. Defendant may be found to have assumed a duty of care to plaintiff on the basis of such evidence, either because it created or exacerbated a dangerous condition, or because plaintiff, a known user of the premises, detrimentally relied on its performance of its contractual obligations to her employer ( see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 139-141; see Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 586-587, 589).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.