to become and remain sick, sore, lame and disabled; confining her to home and bed; compelling her to obtain hospital and medical treatment" and preventing her from obtaining employment and engaging in other gainful activities.
Based on these allegations, the plaintiff pleads two causes of action: (1) negligence; and (2) strict liability based on ultrahazardous activity. The defendant moves in accordance with the October 4, 1996 order of United States Magistrate Judge Michael L. Orenstein, for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) arguing that Emilie's claims are barred by the applicable statute of limitations, and in the alternative, that her strict liability claim fails to state a cause of action upon which relief can be granted. On November 18, 1996, the Court converted this motion to one for summary judgment, see, e.g., Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (recognizing the standard for converting motion for judgment on the pleadings to one for summary judgment), and the Court gave the plaintiff until December 2, 1996 to submit additional material in support of her position. The defendant was then given until December 9, 1996 to submit any further response. No additional papers were filed by either party.
A. The standard
A court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir. 1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58 (2d Cir. 1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
According to the Second Circuit, "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir. 1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby,, 477 U.S. at 248; see Vann v. New York City, 72 F.3d 1040 (2d Cir. 1995).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir. 1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Finally, the Court is charged with the function of "issue finding," not "issue resolution." Gallo v. Prudential Residential Services, Ltd, Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994).
B. The defendant's motion
1. The statute of limitations
Initially the defendant argues that the plaintiff's claims are barred by the three year statute of limitations governing personal injury claims. See N.Y. Civ. Prac. L. & R. ("CPLR") § 214(5). In a case such as this, where the personal injury claims are based on "latent effects of exposure to a substance or combination of substances," the three year period runs 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 been discovered by the plaintiff, whichever is earlier." CPLR § 214-c(2).
"This discovery rule was enacted to 'remedy a fundamental injustice in the laws of [New York] which has deprived persons suffering from exposure to toxic or harmful substances from having the opportunity to present their case to the court." Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 90, 637 N.Y.S.2d 674, 677, 661 N.E.2d 146 (1995), quoting, Governor's Mem. Approving L.1986, ch. 682, 1986 N.Y. Legis Ann. at 288 (emphasis in original). As a remedial statute, section 214-c should be given a liberal construction. Id., citing, 1 Weinstein-Korn-Miller, N.Y. Civ. Prac. P 214-c.06 at 2-497. The purpose of this rule was to replace the bright line "exposure rule," which provided that the statute of limitations would run from the date of the exposure, "with a balanced and more equitable discovery accrual mechanism." 637 N.Y.S.2d at 676.
However, the discovery rule, while easily stated has proven more difficult to apply. As one distinguished commentator recognized:
it is hard to believe that the first onset of symptoms would trigger the statute since this would confer precious little benefit over the old date-of-injury rule in New York. On the other hand, it seems clear that the statute does not envision that the period of limitations will await the plaintiff's personal dawning of consciousness of each and every element of his cause of action.
Joseph McLaughlin, Prac. Comm. CPLR 214-c:2. Indeed the departments of the Appellate Division of this state have reached inconsistent conclusions with respect to CPLR § 214-c(2).
In Seekings v. Jamestown Public Sch. Sys., 224 A.D.2d 942, 637 N.Y.S.2d 897 (4th Dep't 1996), the Fourth Department held that a cause of action accrues when the plaintiff suffers symptoms which indicate that she has sustained an injury. In that case, the petitioner's daughter, Christina, was first exposed to toxic substances on September 9, 1992 when she began the school year during a building renovation project. As a result of her exposure to chemical substances generated by the project, Christina began exhibiting symptoms of poor health a week later which were initially diagnosed as Lupus Syndrome. Id. at 898. On November 17, 1994, she was diagnosed with "environmentally related allergy problems." Id. She moved to file a late notice of claim against the school district on March 21, 1995. In holding the petitioner's claim time barred, the Fourth Department recognized that discovery of the injury under CPLR § 214-c does not mean "discovery of the cause of the injury." Id. (internal quotation omitted); see also Crossman v. Harding Indus. Tool & Master Chemical Corp., 222 A.D.2d 1081, 635 N.Y.S.2d 397, 399 (4th Dep't 1995) (statute of limitations runs from discovery of the injury as opposed to discovery that the injury was caused by a particular chemical). Rather, "because [the petitioner's daughter] exhibited symptoms in September 1992, which were ultimately diagnosed as 'environmentally related allergy problems', the motion to file a late notice of claim in 1995" was denied. Similarly in Johnson v. Ashland Oil, Inc., 195 A.D.2d 980, 601 N.Y.S.2d 756 (4th Dep't 1993), the court found "no merit to plaintiffs' argument that the Statute of Limitations did not begin to run until plaintiff Frank Johnson received a diagnosis . . . and learned for the first time the specific chemical that caused his injury." 601 N.Y.S.2d at 757.
The Second and Third Departments appear to firmly fix the time of accrual at the date of diagnosis. In Sweeney v. General Printing, Inc., 210 A.D.2d 865, 621 N.Y.S.2d 132, 133 (3d Dep't 1994), the Third Department recognized that "a plaintiff must be considered to have discovered such an injury when he or she is actually diagnosed as suffering from a particular disease, even though unaware of its cause." More recently, in Annunziato v. City of New York, 224 A.D.2d 31, 647 N.Y.S.2d 850 (2d Dep't 1996), the Second Department noted that the parties did not dispute that "the date their causes of action accrued, i.e., the 'date of discovery of the injury' under CPLR § 214-c(3), is the date their illnesses were diagnosed." 647 N.Y.S.2d at 854 (collecting cases)
The First Department appears to apply a more liberal interpretation of CPLR § 214-c(2), holding that "the operative question is when sufficient information was communicated to plaintiff so as to induce a reasonable person to associate his physical condition with exposure to a toxic substance." Cochrane v. Owens-Corning Fiberglass Corp., 219 A.D.2d 557, 631 N.Y.S.2d 358, 360 (1st Dep't 1995); see also Scherrer v. Time Equities, Inc., 218 A.D.2d 116, 634 N.Y.S.2d 680, 685 (1st Dep't 1995); Vincent C. Alexander, CPLR § 214-c, Prac. Comm. C214-c:2 1996 (Supp. 1997). In Wetherill v. Eli Lilly & Co., 225 A.D.2d 372, 639 N.Y.S.2d 40 (1st Dep't), leave to appeal granted, N.Y.2d , 644 N.Y.S.2d 965 (1996), the court restated the inquiry as whether the plaintiff "did, or should have, become aware that her condition was not a natural, if unfortunate, happenstance but was the result of an injury inflicted upon her." Id. at 41.
The courts in the Eastern District of New York do not appear to be consistent on this issue. In Parajecki v. International Business Machines Corp., 899 F. Supp. 1050 (E.D.N.Y. 1995), Judge Hurley, quoting Wallen v. AT & T Co., Index No. 12336/91 (Sup. Ct. Bronx Cty. Sept. 17, 1992), aff'd, 195 A.D.2d 417, 601 N.Y.S.2d 796 (1st Dep't), leave to appeal denied, 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590 (1993), recognized that CPLR § 214-c "fixes the significant date as of the time of discovery, actual or imputed, of the injury, not the time of discovery of the cause of the injury." Id. at 1054 (emphasis in original). In Braune v. Abbott Laboratories, 895 F. Supp. 530 (E.D.N.Y. 1995), Judge Weinstein applied a broader reading holding that "in a DES case, New York policy requires that section 214-c(2) be construed as triggering the statute of limitations, at the earliest, on a plaintiff's reasonable discovery of 1) her medical problem and 2) the fact of its human causes." Id. at 546 (emphasis in original).
Despite these varied interpretations of section 214-c(2), this Court finds itself in a situation similar to that faced by the Second Circuit in Griffin v. Garratt-Callahan Co., 74 F.3d 36 (2d Cir. 1996). In Griffin, in 1985 the plaintiff inhaled a substantial amount of chemicals he was placing into a water tower during the course of his employment. Soon thereafter he was admitted to the hospital for pneumonia and emphysema and advised by his doctor that his injuries may have resulted from these chemicals although he could not say for sure. From that point until 1992, the plaintiff suffered from a variety of medical problems and he eventually filed suit in 1993.
The Second Circuit, recognizing that while some New York courts have read section 214-c(2) to require "an injured person to file suit within three years after discovery of the injury," without regard to discovery of the cause of the injury, id. at 39, citing, Sweeney, 210 A.D.2d at 865-66, 621 N.Y.S.2d at 133; Johnson, 195 A.D.2d at 981, 601 N.Y.S.2d at 757, other courts in this state require both discovery of the injury as well as the fact that some man made cause was responsible, id. at 38, citing, Braune, 895 F. Supp. at 541-46, or at least implicitly requiring "discovery of the cause of the injury." Id. at 39, citing, Cochrane, 631 N.Y.S.2d at 360. Notwithstanding this distinction, the Second Circuit affirmed the district court's decision granting the defendant's motion for summary judgment finding that no matter which interpretation of section 214-c(2) is applied, the plaintiff's claims were time barred. The Court faces a similar situation in this case. Id.
This lawsuit was commenced by the plaintiff filing her Complaint on June 6, 1995. Accordingly, in order to survive the defendant's motion, her claims would have had to accrue no earlier than June 6, 1992. A review of the evidence submitted in support of Hildreth's motion, which Emilie has not refuted, establishes that her claims are time barred as a matter of law, and this conclusion is not altered by the Court's choice of interpretation of CPLR section 214-c(2).
The parties were married in September 1986. According to the plaintiff, during this period she was exposed to oil-based paints used by the defendant as an artist as well as mold and contaminated water in the marital residence. In the Complaint, she pleads that while "residing at the Southampton residence [until 1989] Emilie developed eye irritations, recurrent rashes, severe fatigue, recurrent vaginal candidiasis, cognitive dysfunction, with general depression and malaise, cause unknown." Compl. P 13. However, while she alleges that she did not know the cause of her illness, in an affidavit submitted. in the parties' related matrimonial action, the plaintiff swore that as the result of her ongoing ailments, since 1987 she has "traveled with various air filters and had two medical quality air filters in [the marital] home." Aff. of Thomas D'Antonio, Oct. 18, 1996, Exh. F, Aff. of Emilie Humphreys, Aug. 18, 1993 P 3. Further, she purchased a "Miele vacuum cleaner" and a "nilfisk vacuum cleaner" for the Southampton residence specially designed for use by persons allergic to dust mites. Id. Also, to combat the mold, dehumidifiers were installed. Id.
In a letter dated September 16, 1995 to the Disciplinary Committee for the Appellate Division, First Department, the plaintiff discussed the conditions of the marital domicile for the years 1986 through 1992, which she considered to be a "toxic" atmosphere. Id. at Exh. G. Further, during her deposition on September 27, 1996, Emilie admitted that she considered the Southampton residence as having an adverse effect on her health, testifying as follows:
Q: And you advised your husband that you were displeased with his painting habits, with the presence of the mold in the house?
A: I was very concerned, yes.