Jurisdiction: Supreme Court of New York, New York County
On July 22, 2021, plaintiffs filed a complaint alleging asbestos exposure. Plaintiffs’ complaint specifically claims that asbestos exposure caused plaintiff Victoria Pawlowski to be diagnosed with peritoneal malignant mesothelioma after undergoing laparoscopic surgery, resulting in a nodule to be removed from her peritoneum.
Defendants filed a motion to dismiss plaintiffs’ complaint based upon the governing statute of limitations pursuant to CPLR § 3211(a)(5). Plaintiffs opposed this dispositive motion.
CPLR § 214-c(2) provides a three-year limitations period for actions to recover damages for personal injuries “caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body…”. The limitations period for such claims begins to run 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(2). “Discovery of the injury” occurs “‘when the injured party discovers the primary condition on which the claim is based.'” Matter of New York County DES Litig., Wetherill v Eli Lilly & Co., 89 NY2d 506, 509 (1997). In other words, the limitations period begins to run from “the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced”. Id. at 514. However, exceptions exist where a plaintiff’s symptoms are “too isolated or inconsequential to trigger the running of the Statute of Limitations under CPLR § 214-c(2). Id. n. 4; see In re New York City Asbestos Litig., Feinberg v Colgate-Palmolive Co., et. al., 53 Misc 3d 579, 582 (Sup Ct 2016).
Defendants’ motion to dismiss argued that the nodule was the primary condition on which Ms. Pawlowski’s asbestos exposure claim is based, such that the statute of limitations began to run when it was removed on November 16, 2017. As such, defendants argued the limitations period expired in November 2020. At the very latest, defendants further argued that the limitations period began to run in January 2018 after Ms. Pawlowski received a peritoneal mesothelioma from an oncologist and therefore expired in January 2021. Lastly, moving defendants alleged that the tolling of the statute of limitations in response to the COVID-19 pandemic does not apply.
In opposition, plaintiffs asserted that that malignant mesothelioma is the primary condition on which Ms. Pawlowski’s asbestos exposure claim is based, and it was not discovered until February 2019, or at the earliest, November 2018. They contended that the November 2017 discovery of the nodule was too isolated and inconsequential to trigger the running of the statute of limitations because Ms. Pawlowski’s mesothelioma was not actually discovered at that time, nor did she have any symptoms. In support, they offered her histology record from University Hospitals of Morecambe Bay from November 2017, in which her treating physician offered several possible diagnoses, such as a “florid adenomatoid tumor or some form of trophoblastic proliferation” and suggests that Ms. Pawlowski seek further opinions. In further support, plaintiffs offered Ms. Pawlowski’s deposition testimony in which she states that her next appointment was not until January 2018, at which time doctors informed her of her possible mesothelioma diagnosis, but that they were sending the nodule out for further testing.
In addition, plaintiffs argued that various pathologist reports from early 2018 indicate that Ms. Pawlowski’s disease was likely some form of mesothelial cell proliferation, and in March 2018, the Regional Mesothelioma Multi-Disciplinary Team at the University of South Manchester concluded that there was “[n]o sufficient evidence to conclude malignant aggressive mesothelioma”, and the diagnosis was “[b]enign.” Ms. Pawlowski underwent another scan in August 2018 which revealed a new nodule that was later removed in October 2018. As such, plaintiffs argued that was not until November 9, 2018, Ms. Pawlowski was informed she may have malignant mesothelioma, a diagnosis that plaintiffs assert was not “definitive” until February 21, 2019. Lastly, Plaintiffs asserted Gov. Cuomo’s Executive Orders did, in fact, toll plaintiff’s claims.
In view of the above, the court initially held that moving defendants’ argument that tolling the “time limit for the commencement, filing, or service of any legal action” pursuant to Executive Order 202.8 (and the nine subsequent executive orders extending the toll) should not apply was meritless, as courts have upheld the applicability of the tolling period. See Murphy v Harris, 210 AD3d 410, 411 (1st Dept 2022); Baldi v Rocky Point Union Free School Dist., 2022 NY Slip Op 30891[U], 2 (N.Y. Sup Ct, New York County Mar. 17, 2022).
“A toll suspends the running of the applicable period of limitation for a finite time period, and [t]he period of the toll is excluded from the calculation of the [relevant time period]”‘. Brash v. Richards, 195 AD3d 582, 582 (2d Dept 2021) (internal citations omitted). Consequently, the toll ended when Executive Order 202.67 was signed on November 3, 2020. As the tolling period applies, an additional 228 days was added to the end of the limitations period for plaintiffs to bring their claims.
With respect to the start of the limitations period, the court found that it began to run in January 2018, the time at which Ms. Pawlowski was first informed of her mesothelioma diagnosis. The primary condition on which her claim is based is her mesothelioma diagnosis, not the mere discovery and removal of a nodule. Moreover, plaintiffs correctly argued that the scant discovery of her nodule in November 2017 was too isolated and inconsequential to trigger the start of the limitations period because it was unknown exactly what the nodule was, and “the time at which the statute was intended to start the clock is when plaintiff can ascertain the cause of the injury, and not just a display of the symptoms.” Baldi v Rocky Point Union Free School Dist., supra. The court also noted that prior to the discovery of the nodule, Ms. Pawlowski was asymptomatic. In addition, Ms. Pawlowski testified that her first doctor’s appointment after the nodule was removed was in January of 2018. The oncologists’ reports dated January 12, 2018, and January 30, 2018, conclusively established that Ms. Pawlowski was informed of her diagnoses of mesothelioma on January 10, 2018.
In view of the above, the court found Ms. Pawlowski reasonably discovered her injuries on January 10, 2018, at which time the statute of limitations began to run and would have expired on January 10, 2021. However, upon adding the additional 228 days to the end of the limitations period, Ms. Pawlowski’s deadline to file her complaint was August 26, 2021.
As plaintiffs’ complaint was filed on July 22, 2021, it was deemed timely. Accordingly, defendants’ motion to dismiss based upon the governing statute of limitations was denied.
Read the full decision here.
