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January 4, 1997


The opinion of the court was delivered by: SPATT

 SPATT, District Judge:

 This diversity action arises from the claims of the plaintiff, Emilie Jane Humphreys ("Emilie" or the "plaintiff") that her ex-husband, W. Hildreth Humphreys ("Hildreth" or the "defendant") is liable to her under common law tort theories sounding in negligence and strict liability based upon ultrahazardous activity. According to the plaintiff, she became ill, and has sustained serious personal injuries, as the result of her exposure to the defendant's use of paint containing toxic substances in his work as an artist while the parties were living together.

 Presently before the Court is the defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). According to Hildreth, his ex-wife's claims are barred by the applicable statute of limitations and further, her cause of action based on strict tort liability fails to state a claim upon which relief can be granted.

 I. Background

 The plaintiff, Emilie, now a resident of Cambridge, Massachusetts, was married to the defendant, Hildreth, in September 1986. The two lived together in Southampton, New York from that time until 1989 when the plaintiff moved to Cambridge to study at Radcliffe College.

 According to the Complaint, while the parties were married and lived together, Hildreth used their home both as a "living quarters" and a "painting studio." Emilie pleads, upon information and belief, that the defendant regularly used "oil-based paints containing multiple poisonous heavy metals, as well as volatile organic compounds" in his work. The plaintiff claims that during the parties' marriage she was compelled to live with these toxins, along with "mold due to retained moisture" and "contaminated drinking water." As a result, throughout this period she developed "eye irritations, recurrent rashes, severe fatigue, recurrent vaginal candidiases, cognitive dysfunction, with general depression and malaise, cause unknown."

 In 1989, Emilie left Southampton to study landscape design at Radcliffe College in Cambridge, Massachusetts. In May 1991 her symptoms worsened to the point where she had to forego her studies. According to the Complaint, by 1993 she was housebound.

 The plaintiff claims that in April 1993, she was diagnosed with "multiple chemical sensitivities [MCS], food allergies, and cognitive dysfunction due to unnecessary exposure to multiple toxic chemicals used in conjunction with paints and solvents, chemicals in the drinking water supply, and chronic mold at the former Southampton residence." As a result of her exposure to these substances she has allegedly suffered and continues to suffer "serious personal injuries causing her 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.

 II. Discussion

 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 ...

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