SEEMAN v. INTERNATIONAL BUSINESS MACHINES CORPORATION

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Supreme Court, Appellate Division, Second Department, New York.

Eleanor SEEMAN, Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, et al., Respondents, et al., Defendant.

Decided: July 27, 1998

Before BRACKEN, J.P., SULLIVAN, JOY and ALTMAN, JJ. Levy Phillips & Konigsberg, L.L.P., New York, N.Y. (Steven J. Phillips, Alani Golanski and Stephenie Bross, of counsel), for appellant. Cerussi & Spring, White Plains, N.Y. (Michael A. Cerussi, Jr., Peter Riggs and Matthew J. Wojtkowiak, of counsel), for respondent International Business Machines Corporation. Damon & Morey, L.L.P., Buffalo, N.Y. (Thomas J. Drury, of counsel), for respondent Key Tronic Corporation.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated July 22, 1997, which granted the separate motions of the defendant Key Tronic Corporation and International Business Machines Corporation for summary judgment dismissing the complaint insofar as asserted against them, on the ground that the action was time-barred by CPLR 214(5).

ORDERED that the order is reversed, on the law, with costs, the motions are denied, and the complaint is reinstated against the respondents.

 The rule in so-called “repetitive stress injury” cases is that the cause of action accrues against a given manufacturer upon the onset of symptoms or the last use of the injury-producing device, whichever is earlier (see, Blanco v. Amer. Tel. & Tel. Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536, 689 N.E.2d 506).   In her pleadings, the plaintiff alleged that the onset of her symptoms occurred in November 1991, and that at present, she was still using keyboards manufactured by the movants.   Since the plaintiff commenced her action on or about September 20, 1993, the action was not time-barred pursuant to the three-year Statute of Limitations set forth in CPLR 214(5) as to either movant.

MEMORANDUM BY THE COURT.

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