96 A.D.2d 825 | N.Y. App. Div. | 1983
Concurrence Opinion
concurs insofar as the appeal from the order is dismissed but otherwise dissents and votes to reverse the judgment and deny defendants’ motions to dismiss the complaint, in accordance with the following memorandum: Plaintiff was born on March 29, 1955. Almost exactly 23 years later, in March, 1978, she discovered that she had cervical and vaginal cancer, which required radical surgery, including a complete hysterectomy. In January and February, 1980, plaintiff commenced suit against the four defendant drug companies, setting forth seven causes of action. According to the complaint, the cancer was caused by a drug named Diethylstilbestrol (hereinafter DES), a drug previously manufactured by defendants, which was ingested by plaintiff’s mother when the latter was pregnant with plaintiff. The sole issue on this appeal is whether plaintiff’s suit was brought within the period provided by the applicable Statute of Limitations. This suit for personal injuries had to be commenced, unless a toll was in effect, within three years of its accrual (CPLR 214, subd 5; 203, subd [a]). If the action accrued prior to September 1,1974, the effective date of the law defining an infant as someone under 18 years of age (L 1974, ch 924), the Statute of Limitations would have been tolled until that date because of plaintiff’s age (CPLR 208). While the Legislature has set forth the various Statutes of Limitations, to be measured from the time a cause of action accrues to the time the claim is interposed (CPLR 203, subd [a]), it has been left to the courts to determine when a cause of action accrues (Cubito v Kreisberg, 69 AD2d 738, 743, affd 51 NY2d 900). In general, it can be said that a cause of action for personal injuries, whether sounding in negligence, malpractice or products liability, accrues at the time of injury (see, e.g., Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Cubito v Kreisberg, supra). “The issue to be decided, then, is when did the injury occur: at the time of insertion, at the time symptoms began to develop, at the time that plaintiff discovered her malady, or at some other time?” (Reyes v Bertocchi, 92 AD2d 863, 864). Defendants, relying on Schmidt v Merchants Desp. Transp. Co. (270 NY 287), maintain that, as a matter of law, it must be found that plaintiff’s injury occurred at the time that her mother ingested the DES. Schmidt v Merchants Desp. Transp. Co. (supra), and its progeny have recently been reviewed in a scholarly opinion by Justice Niehoff in the case of Lindsey v Robins Co. (91 AD2d 150). These “inhalation-injection cases stand primarily for the proposition that when a harmful substance enters the body, or is taken internally, the injury occurs immediately. Those cases hold that it is the introduction of the deleterious substance into the body, through inhalation or injection, which constitutes the injury to a plaintiff and not the infection or disease which may ultimately be caused by the substance. In other words, the injection or inhalation of the harmful substance into the body constitutes the actionable ‘invasion of the body’ which immediately initiates the infection or disease process for which a negligent defendant is responsible” (Lindsey v Robins Co., supra, p 157). It does not necessarily follow from Schmidt v
Lead Opinion
— In an action to recover damages for personal injuries, plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kassoff, J.), dated January 22,1982, which granted defendants’ motions and dismissed the complaint on the ground that it was time-barred, and (2) a judgment entered thereon on April 15, 1982. Appeal from the order dismissed, without costs or disbursements. (See Matter of Aho, 39 NY2d 241, 248.) Judgment affirmed, without costs or disbursements. (See Manno v Levi, 94 AD2d 556.) Damiani, J. P., Mangano and Niehoff, JJ., concur.