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New York Appellate Court Rules on Wrongful Death Case Involving Asbestos Exposure


The accused moves to dismiss the complainant’s amended objection by reason of the complainant having been added as an accused following the expiration of the law of limitations. For the reasons set forth, the accused person’s motion is granted in part and denied in part.

The complainant was diagnosed with asbestosis in February of 1994. He filed a lawsuit to recover for damages arising from his condition in August of 1994. The accused Kitchen and Bath Company was not named in that complaint. More than fourteen years later, the complainant was diagnosed with lung cancer. He passed away shortly thereafter. On July 12, 2011, the complainant’s family filed an amended complaint alleging new causes of action both as against the accused named in the original complaint, against the Kitchen and Bath Company, and others as new accused.

A New York Injury Lawyer said that in the motion, the Kitchen and Bath Company argue that the complainants were lawfully time barred from amending the original complaint to add it as an accused because the applicable law of limitations had long since run. The Kitchen and Bath Company submits that since the complainants are time-barred from suing for personal injuries, the deceased man’s estate is also time-barred from suing wrongful death. The complainant concedes that their claims are time-barred. However, they argue that the injury claims are governed by a different limitations period and are therefore duly pled. In general, the two claims are materially different.

The Court of Appeals clarified that the two causes of action are predicated on essentially different theories of loss which accrue to different parties. In the context, personal injury actions are brought to recover for a deceased person’s conscious pain and suffering prior to his death. It also accrues to a deceased person’s estate. The law sets a three year statute of limitations for such claims arising from the latent effects of exposure to toxic substances, including asbestos. The period begins to run from the date of discovery of the injury by the complainant or from the date when through the exercise of reasonable diligence such injury should have been discovered by the complainant, whichever is earlier. Wrongful death claims, on the other hand, are designed to compensate a deceased person’s beneficiaries who have suffered financial injury as a result of the wrongful death. These claims may only be brought on behalf of the deceased person’s beneficiaries. Given the stark differences, it is not surprising that each cause of action is governed by a different statute of limitations. These claims are governed by the law which provides that such claims must be commenced within two years after the person’s death.

In terms of the complainant’s unjust death claim, the deceased passed away on March 21, 2009 and the amended complaint was not filed until July 12, 2011, more than two years later. As the complainants concede, the death claims herein plainly are time-barred and to the extent, the accused party’s motion is granted.

A NYC Personal Injury Lawyer said the only dispute is whether the deceased man’s injury claims are actionable. In such regard, the Kitchen and Bath Company argues that such claims are time-barred as to it because it was added to the lawsuit as an accused almost seventeen years after the original complaint was filed. In alternative, the Kitchen and Bath Company also argues that the deceased man’s ability to sue for his personal injury claims expired upon his death.

It is established that a party’s lung cancer constitutes a separate and distinct injury from his asbestosis so as to trigger New York’s second injury rule. Manifestations of toxic injury cases do not become apparent until many years of exposure and may be actionable if they are separate and distinct from an earlier medical problem caused by the same problem, even if the statute of limitations on the previous injury has expired. Further, it is axiomatic that claims are not lost simply because the injured party has died. It is therefore immaterial that the deceased filed his original asbestos-related injury claim in 1994 or that he passed away prior to amending the complaint. What is important is that the complainants amended the original complaint, within three years of the manifestation of the deceased man’s lung cancer, which is a separate and distinct disease from asbestosis and a second injury under the law. Therefore, the complainants claim in relation to the deceased man’s lung cancer is timely.

Accordingly, the Kitchen and Bath Company’s motion to dismiss is granted in part and denied in part. An NY Personal Injury Lawyer said the court ruled it is further ordered that the complainant’s cause of action for wrongful death is dismissed as against all the accused and it is further ordered that the complainant’s cause of action for personal injuries relating to the deceased man’s lung cancer is severed and shall continue as against all the accused, including the Kitchen and Batch company.

As a family member, we may feel weighed down as we try to center our attention on taking care of our ill loved ones during a hard time. Let us at Stephen Bilkis and Associates fight for the financial worries that your family member experienced due to the injuries sustained.

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