Calendar Date: April 23, 2018
& Associates, LLC, New Hartford (Mo Athari of counsel),
Williamson, Clune & Stevens, Ithaca (Allan C. VanDeMark
of counsel), for Mark Williams and another, respondents.
Seamans Cherin & Mellott, LLC, White Plains (Michael J.
Burke of counsel), for J. Peter McPartlon, respondent.
J. Cochi, Utica, for Roger A. Ploof, respondent.
Bailey, Johnson, DeLeonardis & Peck, PC, Albany (Syma S.
Azam of counsel), for Polly N. Rutnik, respondent.
Barclay Damon LLP, Syracuse (Jonathan H. Bard of counsel),
for Daniel W. Bowlin and another, respondents.
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and
MEMORANDUM AND ORDER
from an order of the Supreme Court (Ferreira, J.), entered
September 6, 2017 in Albany County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint.
commenced this action in December 2014, when he was 24 years
old, seeking money damages for injuries purportedly resulting
from lead poisoning that occurred when he was a child living
at properties owned by defendants. As relevant here, after
joinder of issue and some discovery, defendants separately
moved for summary judgment, claiming that the action was not
timely commenced pursuant to the relevant statute of
limitations. Plaintiff opposed the motions, asserting that
the action was timely under CPLR 214-c (2). Supreme Court
granted defendants' motions, dismissing the complaint as
time-barred, and plaintiff now appeals.
to recover damages for a personal injury generally have a
three-year statute of limitations that begins to run on the
date of the injury (see CPLR 214 ; Snyder v
Town Insulation, 81 N.Y.2d 429, 432-433 ).
However, where, as here, the personal injury claim is
premised upon damages "caused by the latent effects of
exposure to any substance or combination of substances, in
any form, upon or within the body or upon or within property,
" the three-year statute of limitations 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 have been discovered by the plaintiff,
whichever is earlier" (CPLR 214-c ; accord
Caronia v Philip Morris USA, Inc., 22 N.Y.3d 439, 448
; Vasilatos v Dzamba, 148 A.D.3d 1275,
1276-1277 ). As the Court of Appeals has held,
"when the Legislature used the phrase 'discovery of
the injury' it meant discovery of the physical condition
and not... the more complex concept of discovery of both the
condition and the nonorganic etiology of that condition"
(Matter of New York County DES Litig., 89 N.Y.2d
506, 514 ; see Vasilatos v Dzamba, 148 A.D.3d
defendants bore "the initial burden of establishing
prima facie that the time... to sue [had] expired, and thus
[were] required to establish, [among of things, ] when the
plaintiff's cause of action accrued" (Larkin v
Rochester Hous. Auth., 81 A.D.3d 1354, 1355 
[internal quotation marks and citations omitted]). To that
end, defendants offered ample proof, including deposition
testimony of plaintiff and his mother and various medical
records, all of which demonstrated that plaintiff was exposed
to lead as a child. Notably, according to one record,
plaintiff was diagnosed with lead poisoning when he was three
years old. Another record shows that plaintiff's elevated
blood lead level was first recorded in 1992, when he was two
years old, and ongoing follow-up testing showed that his
blood lead level remained elevated through 1996 (see
Public Health Law § 1370 ). Plaintiff himself
testified that he recalled removing paint chips from the
walls and placing them in his mouth many times. Additionally,
the bill of particulars articulates a legion of cognitive
deficits. Plaintiff testified that the symptoms of these
deficits were manifest since childhood and that he always had
been late to everything, suffered from headaches and
sleeplessness, received extra help but still struggled with
school work, had poor impulse control as a teenager and
performed dismally during his one year in community college.
that defendants' submissions "were sufficient to
demonstrate that plaintiff was cognizant of [his] claimed
injuries, or, at a minimum, reasonably should have been, such
that the action is barred by the statute of limitations"
(Vasilatos v Dzamba, 148 A.D.3d at 1278). Here, if
we accept that lead was the causative harmful substance,
plaintiff has been aware of his injuries since early
childhood, when they were first evident, and then as they
continued throughout his school years and to the present day.
Plaintiff argues that the statute of limitations did not
commence until July 2013 when, after receiving a solicitation
letter from his attorney, he became aware of his exposure to
lead as a young child. This argument is without merit as
"the statute runs from the date the condition or symptom
is discovered or reasonably should have been discovered, not
the discovery of the specific cause of the condition or
symptom" (id.; see Matter of ...