Toxic Mold and Statute of Limitations

Saturday, April 22, 2006 | 0

Ed Note: While the following article is not specifically about workers' compensation, the overtures for subrogation make the following relevant.

By Larry Rogak

Martin v. 159 West 80 Street Corp., 3 A.D.3d 439, 770 N.Y.S.2d 720 (1st Dept).

Plaintiff alleged that from 1993 to date, ongoing water leaks in her apartment, which defendants failed to resolve, continuously exposed her to toxic mold, fungi and other environmental conditions that have caused her to suffer respiratory, immunological and neurological problems for approximately five years prior to 2001. However, it was not until 2001, when repairs on a defective boiler in the building exacerbated the leakage problems and for the first time caused the odor of mildew and the appearance of black mold on the interior walls of her apartment, that plaintiff became aware of the presence of these conditions and hired a registered environmental assessor and air quality consultant to inspect her apartment.

The consultant performed air quality tests which demonstrated high levels of bacteria and fungi in her apartment, and, in particular, significant amounts of Stachybotrys Chartarum, "a highly toxic fungus which can adversely affect the health of human beings through inhalation, ingestion and skin contact."

Defendants moved for dismissal based upon the expiration of the statute of limitations; additionally, the individual defendant Llorente offers a deed indicating that he transferred ownership of the subject property in November 1996. Supreme Court, New York County, denied the landlord's Motion.

The Appellate Division held, first, that Llorente was not entitled to dismissal "because we perceive issues of fact as to his continued managing position in the building..."

However, the suit against the landlord was dismissed on timeliness grounds.

"The three-year statute of limitations of CPLR 214-c(2) runs from the time a plaintiff discovers an injury, that is, from the time she realizes that she has the physical manifestations of illness, regardless of when she learns of the cause. Because plaintiff here experienced the physical manifestations of her illness for five years prior to 2001, the statute of limitations on plaintiff's personal injury action clearly expired pursuant to CPLR 214-c(2) prior to her commencement of this action."

"Nor may plaintiff rely upon the extension of the limitations period created by CPLR 214-c(4). That provision permits a plaintiff who did not discover the cause of the illness until up to five years after manifestation of the injury to bring an action within one year after discovery of its cause, only where the plaintiff can both plead and prove "that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized". That provision cannot be relied upon here, because plaintiff has not alleged that the medical or scientific community in general lacked information that molds such as those in the apartment could be the cause of her illness."

"To hold otherwise - essentially tolling the limitations period until plaintiff's physician eventually diagnosed her condition - would allow the date on which a claim accrues to depend on such fortuitous circumstances as the diagnostic acuity of the injured party's chosen physician, a result explicitly rejected in Wetherill v. Eli Lilly & Co. [89 N.Y.2d 506, 515, 655 N.Y.S.2d 862, 678 N.E.2d 474]."

"As such, plaintiff's claim for her personal injuries is time-barred. However, this does not extinguish her claim based upon the breach of warranty of habitability."

Article by Larry Rogak. Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.