CASSON v. CITY OF NEW YORK (2000)

Orders, Supreme Court, Bronx County (Douglas McKeon, J.), entered August 11, 1997, which granted defendant Mine Safety Appliance Company's motion to dismiss the complaint in Martzloff as against it, unanimously affirmed, without costs.   Orders, same court and Justice, entered August 31, September 10, October 1 and October 5, 1998, which granted defendants' motions to dismiss the complaints in Denaro, Murphy, Jimenez-Cintron and McCormack, unanimously affirmed, without costs.   Orders, same court and Justice, entered July 3, August 8, August 11, August 12 and August 19, 1997, which dismissed the complaints in Casson, Mundy, Molloy, Sileo, Iaquinto, Rosa and Kennedy, with the exception of the causes of action under General Municipal Law § 205-e as against defendant City of New York, unanimously modified, on the law, to dismiss those causes of action as well, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of defendant City of New York dismissing the complaints as against it.

 These 12 consolidated appeals all arise out of the hearing loss and related injuries allegedly suffered by plaintiffs, current and former members of the New York City Police Department, as a result of their exposure to the sound of gunfire at Police Department firing ranges and the lack of adequate protective devices.   As this Court has already determined upon an identical set of facts, “sound” is not a “substance” within the meaning of CPLR 214-c, and therefore plaintiffs' claims are subject to the Statute of Limitations set forth in CPLR 214 (see, Martzloff v. City of New York, 238 A.D.2d 115, 117, 655 N.Y.S.2d 43, lv. dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 273, 686 N.E.2d 1368).   The last-use-or-onset-of-symptoms-whichever-is-earlier accrual rule applicable to repetitive stress injuries, such as those resulting from extended use of computer keyboards, as set forth by the Court of Appeals in Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757, 772-774, 666 N.Y.S.2d 536, 689 N.E.2d 506, does not apply to plaintiffs' claims, since their own expert states that symptoms of clinically measurable damage manifest themselves immediately upon exposure to high sound levels.   Thus, the traditional date of first exposure governs the accrual of plaintiffs' claims (see, Martzloff v. City of New York, supra, at 118, 655 N.Y.S.2d 43).   We modify to dismiss the causes of action under General Municipal Law § 205-e since plaintiffs did not suffer an “accident” within the meaning of that statute (see, id.).

MEMORANDUM DECISION.