Illustrating the limits of New York’s discovery rule, a New York appeals court dismissed claims alleging injuries from lead paint exposure as barred by the statute of limitations. See Vasilatos v. Dzamba, No. 523286 (N.Y. App. Div., Mar. 2, 2017).

As a child in the late 1980s and early 1990s, the plaintiff Violet Vasilatos lived in or often visited apartments owned by Defendants. Blood tests in 1990 showed Plaintiff had elevated blood lead levels.  She filed a personal injury suit in 2014 at age 28, alleging she was exposed to and ingested lead paint particles at Defendants’ properties, which caused cognitive difficulties in school.  Defendants moved to dismiss the complaint as untimely.  The trial court denied the motion and Defendants appealed.

The appeals court evaluated Plaintiff’s claim under New York’s discovery rule. New York has a three-year statute of limitations for personal injury actions, but the statute is tolled until a plaintiff turns eighteen.  When the claim is based on a latent injury caused by exposure to a toxic substance, the statute can be further tolled by the discovery rule, or until the date “through the exercise of reasonable diligence such injury should have been discovered by the plaintiff.” Vasilatos, slip op. at 3.

As Plaintiff turned eighteen in 2004, the statute of limitations was only tolled until 2007. Further the court found that she reasonably should have known of her injury based on blood tests conducted in 1990 combined with the cognitive difficulty she experienced throughout her school career.  Under New York’s discovery rule in toxic tort cases, the court held, “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. at 4. Therefore Plaintiff’s claims were untimely.