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PARAJECKI v. IBM

September 22, 1995

KATHLEEN PARAJECKI, and ALLEN PARAJECKI, and ELIZABETH L. JOHNSON, and WILLIAM E. JOHNSON, Plaintiffs, against INTERNATIONAL BUSINESS MACHINES CORPORATION, and COMPAQ COMPUTER CORPORATION, and XEROX CORPORATION, and CANON U.S.A., INCORPORATED, and SMITH CORONA CORPORATION, Defendants.


The opinion of the court was delivered by: HURLEY

 APPEARANCES: *fn1"

 HURLEY, District Judge

 Presently pending before the Court, in the above-captioned so-called repetitive stress injury ("RSI") case, is a Motion for Summary Judgment by Canon U.S.A., Incorporated ("Canon") *fn2" , a Motion for Summary Judgment by Compaq Computer Corporation ("Compaq"), and a Motion to Dismiss by Xerox Corporation ("Xerox"). *fn3" The ground for each of these three motions is that the claims of Plaintiff Kathleen Parajecki and her spouse, Plaintiff Allen Parajecki, (collectively, "the Parajecki Plaintiffs") are barred by the applicable statute of limitations.

 For the reasons set forth below, Canon's Motion for Summary Judgment and Compaq's Motion for Summary Judgment are granted. Finally, Xerox's Motion to Dismiss is granted in part.

 DISCUSSION

 I. Motion for Summary Judgment

 A motion for summary judgment may be granted only when it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987); Winant v. Carefree Pools, 709 F. Supp. 57, 59 (E.D.N.Y.), aff'd 891 F.2d 278 (2d Cir. 1989). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323; see also Trebor Sportswear Co., Inc. v. The Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989); Pariente v. Scott Meredith Literary Agency, Inc., 771 F. Supp. 609, 612 (S.D.N.Y. 1991). The substantive law governing the case will identify those facts which are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Once the moving party has come forward with support demonstrating that no genuine issue of material fact remains to be tried, including pleadings, depositions, interrogatory answers, and affidavits, the burden shifts to the non-moving party to provide similar support setting forth specific facts about which a genuine triable issue remains. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250; Borthwick v. First Georgetown Secs., Inc., 892 F.2d 178, 181 (2d Cir. 1989); Donahue, 834 F.2d at 57. The court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Donahue, 834 F.2d at 57.

 "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphases omitted). Moreover, "conclusory allegations will not suffice to create a genuine issue. There must be more than a 'scintilla of evidence,' and more than 'some metaphysical doubt as to the material facts.'" Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 114 L. Ed. 2d 125, 111 S. Ct. 2041 (1991) (quoting Anderson, 477 U.S. at 252, and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)); see also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed materials facts, . . . or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations and internal quotations omitted). With the above principles in mind, the Court turns to a discussion of the case at bar.

 A. Claims by Parajecki Plaintiffs

 The Complaint in the above-captioned case -- based upon alleged "repetitive stress injuries" suffered by the plaintiffs -- was filed on August 5, 1993. It sets forth three theories for recovery: negligence; strict products liability; and loss of consortium. (See Compl. PP 36-52.) The following allegations in the Complaint pertain to the claims of the Parajecki Plaintiffs against Canon, Compaq and Xerox:

 
Plaintiff Kathleen Parajecki's repetitive stress injuries were insidious in their onset and, accordingly, it is not possible to identify precisely the precise date of the onset of symptoms. Nor is it possible at this point to state that any initial symptoms experienced constituted the full manifestation or even a partial manifestation of each or any of the injuries that plaintiff ultimately sustained, or continues to sustain. Nonetheless, on or about April 1988, plaintiff began to experience some symptoms such as numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck and torso, with additional and new symptoms and injuries experienced thereafter.

 (Compl. P 7.)

 
Further, the Complaint alleges that:
 
on or about April 1988; October 1989; April 1990; May 1990; September 1991; October 1991; and November 1992, plaintiff Kathleen Parajecki received the diagnoses of or underwent surgery for the following conditions, respectively: tendonitis [sic] of the upper left extremity; surgery for tendonitis [sic] of the upper left extremity; bilateral carpal tunnel syndrome, surgery for left carpal tunnel syndrome, tendonitis [sic] of the upper right extremity; surgery for right carpal tunnel syndrome; right trigger finger syndrome; surgery for right trigger finger syndrome; and surgery for tendonitis [sic] of the upper right extremity.

 (Compl. P 8.)

 
Finally, the Complaint alleges that:
 
the nature of plaintiff's [sic] injuries is such that there is no precise moment of injury. Rather, there is a cumulative and prolonged process by which plaintiff [sic] sustained injury, aggravated existing injury, sustained new injury, and continues to do so.

 (Compl. P 9.)

 B. New York Statute of Limitations

 Again, Canon and Compaq both seek summary judgment, on the ground that the claims of the Parajecki Plaintiffs are barred by New York's statute of limitations. *fn4" New York Civil Practice Law and Rules provides, in relevant parts, as follows:

 
(a) Accrual of cause of action and interposition of claim. The time within which an action must be commenced, except as otherwise expressly prescribed, shall be computed from the time the cause of action accrued to the time the claim is interposed.

 N.Y. Civ. Prac. L. & R. 203(a).

 
The following actions must be commenced within three years:
 
. . .
 
(5) an action to recover damages for a personal injury except as provided in sections 214-b, 214-c and 215.

 N.Y. Civ. Prac. L. & R. 214(5) ("Section 214(5)").

 It is well settled that a cause of action for personal injury in New York accrues from the date of injury. Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824 (1936); see also Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 599 N.Y.S.2d 515, 516, 615 N.E.2d 999 (1993). However, New York Civil Law and Rules 214-c ("Section 214-c"), the so-called "discovery rule," provides an exception to this general principle; the Parajecki Plaintiffs argue that this exception is applicable to the instant case.

 In relevant part, Section 214-c provides as follows:

 
Certain actions to be commenced within three years of discovery.
 
(1) In this section: "exposure" means direct or indirect exposure by absorption, contact, ingestion, inhalation, implantation or injection.
 
(2) Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body . . . must be commenced shall be computed 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, whichever is earlier.

 N.Y. Civ. Prac. L. & R. 214-c.

 Defendants argue that Section 214-c is not applicable to the case at bar, and that, therefore, the three (3) year period provided by Section 214 should be computed from date of injury, not the date of discovery. The Court has reviewed the New York State cases that were cited by both sides in support of their respective positions as to the applicability of Section 214-c to RSI claims. The Court finds most significant the First Department's affirmation of the decision by Justice Saks in Wallen v. American Tel. & Tel. Co., Index No. 12336/91 (N.Y. Sup. Ct. Bronx County Sept. 17, 1992), aff'd, 195 A.D.2d 417, 601 N.Y.S.2d 796 (1st Dep't), leave to appeal denied, 605 N.Y.S.2d 5 (1993).

 The plaintiff in Wallen filed a products liability action in 1991. Wallen at 1. Justice Saks found, inter alia, that Section 214-c was inapplicable to the plaintiff's claim for "bilateral carpal tunnel syndrome," (see id. at 1), because "there was no contact with a 'substance' within that statute's meaning. " Wallen at 2. The court continued that "in any event, even if this case had fallen under Section 214-c, it is important to note that that statute fixes the significant date ...


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