Johnson v. Ashland Oil, Inc., 601 N.Y.S.2d 756

Johnson v. Ashland Oil, Inc.

601 N.Y.S.2d 756 | N.Y. App. Div. | 1993

Order unanimously affirmed without costs. Memorandum: Plaintiffs’ cause of action to recover damages for personal injury caused by exposure to a toxic substance is barred by the Statute of Limitations. CPLR 214-c (2) provides that such a cause of action must be commenced within three years "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.” The undisputed facts show that plaintiff Frank Johnson knew that he had sustained an injury from exposure to toxic substances at his work place no later than 1982 and this action was not commenced until 1990.

*981We find no merit to plaintiffs’ argument that the Statute of Limitations did not begin to run until plaintiff Frank Johnson received a diagnosis in 1987 and learned for the first time the specific chemical that caused the injury. CPLR 214-c (4) provides that, notwithstanding the preceding subdivisions, "where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury.” That subdivision clearly indicates that "discovery of the injury” does not depend upon discovery of the cause of the injury. Here, plaintiff Frank Johnson discovered his injury more than three years before the commencement of the action even though he did not discover the precise cause of his injury until later. (Appeal from Order of Supreme Court, Onondaga County, Hurlbutt, J.—Summary Judgment.) Present—Callahan, J. P., Balio, Doerr, Boomer and Boehm, JJ.