61 A.D.2d 777 | N.Y. App. Div. | 1978
Supreme Court, New York County, entered October 25, 1976, denying defendant’s motion for summary judgment, is unanimously reversed, on the law, without costs and without disbursements, and the motion granted and the complaint dismissed. Plaintiffs three-month-old son was given defendant’s oral polio vaccine in October, 1966 and January, 1967. In February, 1967 plaintiff developed poliomyelitis and was hospitalized until December, 1967, and the illness culminated in permanent crippling. Plaintiff alleges that the Federal Communicable Disease Center found his illness to be vaccine-induced contact poliomyelitis, and though he is not named, the case described in their annual survey for 1967 may well be his case. At issue is whether Special Term properly used the date plaintiff claims he could have discovered that his malady might have been caused by defendant’s oral polio vaccine instead of the date when the illness manifested itself, in calculating the time when the Statute of Limitations began to run. This is not a medical malpractice claim to which the tolling doctrine of Flanagan v Mt. Eden Gen. Hosp. (24 NY2d 427) and its progeny—the foreign object doctrine —could apply. At best, plaintiff had a claim for strict products liability which accrued at the time of injury in 1967 (see Martin v Julius Dierck Equip. Co., 43 NY2d 583) or breach of warranty which accrued at the time of sale of the "defective” vaccine (Uniform Commercial Code, § 2-725, subd [2]). In either event, the period of limitations has long since expired—three years for strict products liability under CPLR 214 (subd 5) (see Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 399-400) or four years for breach of warranty under subdivision (1) of section 2-725 of the Uniform Commercial Code (see Victorson, supra, p 403). Concur—Birns, J. P., Evans, Lane and Markewich, JJ.
