Ward v. Lincoln Electric Co.

Appellate Division of the Supreme Court of New York

Ward v. Lincoln Electric Co.

116 A.D.3d 558, 983 N.Y.S.2d 718

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 2014

StatusPublished

This text of 116 A.D.3d 558 (Ward v. Lincoln Electric Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ward v. Lincoln Electric Co., 116 A.D.3d 558, 983 N.Y.S.2d 718 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered September 11, 2013, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

[559]*559In this action for injuries related to the latent effect of exposure to a toxic substance, the statute of limitations began to run when plaintiff discovered the primary condition on which his claim is based, and not when he discovered the causation connection to the toxic substance (Matter of New York County DES Litig., 89 NY2d 506 [1997]).

Plaintiffs uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518 [c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running (see CPLR 214-c [2]).

In any event, plaintiffs own deposition testimony establishes that he had persistent, severe, progressively worsening symptoms that limited his physical activity, for which he sought regular, ongoing medical treatment, as far back as at least 2007, and that, by 2008, necessitated an invasive procedure that confirmed a diagnosis of pulmonary fibrosis. These dates are corroborated by his workers’ compensation claim. Contrary to plaintiffs contention, his symptoms were not “too isolated or inconsequential” to start the limitations period running before January 30, 2009 (see Cabrera v Picker Intl., 2 AD3d 308, 309 [1st Dept 2003] [internal quotation marks omitted]). They became apparent by, at the latest, the latter half of 2008, more than three years before this action was commenced, on January 30, 2012 (see Matter of New York County DES Litig., 89 NY2d at 514). Concur — Friedman, J.P, Sweeny, Andrias, Gische and Clark, JJ.

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Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered September 11, 2013, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

[559]*559In this action for injuries related to the latent effect of exposure to a toxic substance, the statute of limitations began to run when plaintiff discovered the primary condition on which his claim is based, and not when he discovered the causation connection to the toxic substance (Matter of New York County DES Litig., 89 NY2d 506 [1997]).

Plaintiffs uncertified medical records may be considered since plaintiff does not dispute their accuracy or veracity (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept 2012]; CPLR 4518 [c]). He only disputes the inferences to be drawn from the records as to the date on which his condition was sufficiently apparent to start the limitations period running (see CPLR 214-c [2]).

In any event, plaintiffs own deposition testimony establishes that he had persistent, severe, progressively worsening symptoms that limited his physical activity, for which he sought regular, ongoing medical treatment, as far back as at least 2007, and that, by 2008, necessitated an invasive procedure that confirmed a diagnosis of pulmonary fibrosis. These dates are corroborated by his workers’ compensation claim. Contrary to plaintiffs contention, his symptoms were not “too isolated or inconsequential” to start the limitations period running before January 30, 2009 (see Cabrera v Picker Intl., 2 AD3d 308, 309 [1st Dept 2003] [internal quotation marks omitted]). They became apparent by, at the latest, the latter half of 2008, more than three years before this action was commenced, on January 30, 2012 (see Matter of New York County DES Litig., 89 NY2d at 514). Concur — Friedman, J.P, Sweeny, Andrias, Gische and Clark, JJ.

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Bluebook (online)

116 A.D.3d 558, 983 N.Y.S.2d 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-lincoln-electric-co-nyappdiv-2014.

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