SCHEIDEL v. AND INC (1999)

Appeals (1) from an order of the Supreme Court (Leaman, J.), entered December 16, 1997 in Albany County, which granted defendant Rutland Fire Clay Company's motion for summary judgment dismissing the complaint against it, and (2) from an order of said court, entered January 20, 1998 in Albany County, which granted the remaining defendants' motions for summary judgment dismissing the complaint against them.

This action involves a claim that, between 1960 and 1991, Victor R. Scheidel (hereinafter decedent), while employed primarily as an independent contractor on various residential construction sites, was exposed to asbestos and eventually developed asbestosis as a result.   The primary issue presented in this appeal is whether decedent discovered, or should have discovered in the exercise of reasonable diligence his injury on or before May 12, 1994 (i.e., three years prior to commencement of this action).   We conclude that decedent's awareness of severe and persistent manifestations of the illness prior to May 1994 constituted “discovery” as contemplated by CPLR 214-c.

On May 12, 1997, decedent, and his wife derivatively, commenced this action primarily contending that defendants were negligent in exposing decedent to asbestos.¹  Certain of the defendants moved for summary judgment asserting that the claims in the action were barred by the Statute of Limitations pursuant to CPLR 214-c.   The remaining defendant, Rutland Fire Clay Company (hereinafter Rutland), moved for summary judgment on the ground that the proof failed to adequately establish that decedent was exposed to a Rutland project containing asbestos.   Supreme Court granted all of these motions and dismissed the complaint.   Plaintiff now appeals.

 The Statute of Limitations for a toxic tort 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] ).   The term “discovery” as provided for in this statute refers to the “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, 655 N.Y.S.2d 862, 678 N.E.2d 474;  see, Oeffler v. Miles Inc., 241 A.D.2d 822, 825, 660 N.Y.S.2d 897).   The time period is, therefore, triggered by something less than a plaintiff's full awareness that he or she has been injured as the result of exposure to a toxic substance (see, Whitney v. Agway Inc., 238 A.D.2d 782, 784, 656 N.Y.S.2d 455;  Sweeney v. General Print., 210 A.D.2d 865, 621 N.Y.S.2d 132, lv. denied 85 N.Y.2d 808, 628 N.Y.S.2d 50, 651 N.E.2d 918).   Discovery of the cause of the symptoms is not relevant;  rather the limitations period begins to run when the plaintiff discovered or should have discovered the “primary condition on which the claim is based” (Matter of New York County DES Litig., supra, at 509, 655 N.Y.S.2d 862, 678 N.E.2d 474).

Here, decedent began experiencing certain symptoms beginning in 1990, including shortness of breath and difficulty walking any distance.   Further indications supported defendants' assertions that decedent was aware of and had experienced significant limitations of his daily activities since the early 1990s.   In 1991, he ceased working as a construction laborer and accepted employment as a salesperson, in part, because he was experiencing difficulty engaging in the physical demands of his former employment due to his breathing problems.   Decedent also stated during his deposition that his condition affected his ability to lift items weighing over 20 pounds and his problems were exacerbated when he was in a room with smokers or in a polluted area.   Other aspects of his regular activities were affected, for example, he was compelled to wear a mask while mowing the lawn.   The severity of his shortness of breath increased in 1993 and he subsequently reported to his physician that he became concerned during a hunting trip that year when he was not able to “keep up” with his companions.   After seeking treatment in November 1994, decedent was diagnosed with asbestosis following an endoscopic lung biopsy.

 We reject plaintiff's contention that decedent's symptoms were so generalized and episodal that they did not constitute the primary condition upon which the claim was based.   The record reveals that decedent, who was 55 years old in 1990, experienced multiple manifestations of his condition or injury which affected virtually all physical activity and prompted him to change the nature of his employment.   This was not a situation in which decedent's symptoms were so isolated or inconsequential that a reasonably diligent person would not attribute them to an injury or disease.   Rather, his difficulty in breathing was persistent and increasingly debilitating, and the fact that his illness was not diagnosed until November 1994 and he may not have been fully aware that the cause of his injury was an exposure to asbestos is not dispositive (see, Whitney v. Agway Inc., supra, at 784, 656 N.Y.S.2d 455;  Krogmann v. Glens Falls City School Dist., 231 A.D.2d 76, 78, 661 N.Y.S.2d 82, lv. dismissed 91 N.Y.2d 848, 667 N.Y.S.2d 683, 690 N.E.2d 492).   Decedent was aware of his injury when he discovered or should have discovered “the manifestations or symptoms of the latent disease that the harmful substance produced” (Matter of New York County DES Litig., supra, at 514, 655 N.Y.S.2d 862, 678 N.E.2d 474), which was clearly prior to May 1994 (see, Whitney v. Quaker Chem. Corp., 90 N.Y.2d 845, 847, 660 N.Y.S.2d 862, 683 N.E.2d 768;  Sweeney v. General Print., supra, at 865-866, 621 N.Y.S.2d 132).   Accordingly, Supreme Court's granting summary judgment on the issue of Statute of Limitations will not be disturbed.

 We also agree with Supreme Court's decision granting Rutland's motion for summary judgment.   Rutland, having submitted proof in evidentiary form sufficient to demonstrate that its product did not contribute to the causation of decedent's injury, the burden shifted to plaintiff to submit admissible evidence sufficient to “allege facts and conditions from which the defendant's liability may reasonably be inferred, that is, that [decedent] worked in the vicinity where defendant's products were used, and that [decedent] was exposed to defendant's product” (Matter of New York City Asbestos Litig., 216 A.D.2d 79, 80, 628 N.Y.S.2d 72;  see, Cawein v. Flintkote Co., 203 A.D.2d 105, 610 N.Y.S.2d 487).   Here, decedent was unable to provide responses to interrogatories or deposition testimony as to the location or timing of his alleged exposure to Rutland's products.   Hence, plaintiff failed to state sufficient facts upon which to base liability (see, Matter of New York City Asbestos Litig., supra, at 80, 628 N.Y.S.2d 72).

ORDERED that the orders are affirmed, with costs.

FOOTNOTES

1.   Ethel M. Scheidel was substituted as plaintiff in her capacity as executor of decedent's estate after he died during the pendency of this action.

GRAFFEO, J.

CARDONA, P.J., MERCURE, YESAWICH Jr. and CARPINELLO, JJ., concur.