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Wrongful Death Action Filed Due to Landfill, New York Appellate Court Finds Issue with Statute of Limitations

Four separate actions were commenced against the defendant, City of New York, plaintiffs from over 40 families sought to recover damages for personal injuries and wrongful death based on allegations that the diseases they suffered from were caused by exposure to toxic substances at the Brookfield and Fresh Kills landfills on Staten Island. The plaintiffs are residents or former residents of neighborhoods located near the landfills. The four separate actions were later consolidated into one case.

Each of the plaintiffs served a notice of claim on the defendant in May or June 1992. A New York Injury Lawyer said that the notices of claim alleged, inter alia, that the defendant was negligent in allowing health hazards to exist at the landfills and that the plaintiffs or their decedents were exposed to toxic emissions from the landfills into the air, water, and ground. All of the notices of claim of the plaintiffs stated that each plaintiff discovered the cause of his or her injury in March 1992, except one plaintiff’s notice of claim, which did not indicate when the cause of her injury was discovered. In August 1992, the plaintiffs moved to amend their notices of claim to allege that the landfills continued to present health hazards and that the time when the claim arose is a question of fact to be determined by the jury.

The defendant concedes that, for Statute of Limitations purposes, the plaintiffs’ action was commenced on June 1, 1993. In June 1994, the defendant moved for summary judgment dismissing the claims of 19 plaintiffs, belonging to the 1st action as time-barred under the provisions of CPLR. A Staten Island Personal Injury Lawyer said that subsequently, in its reply papers, the defendant withdrew the motion with respect to three of the 19 plaintiffs.

The Supreme Court dismissed the claims of five of the plaintiffs as time barred, and the court denied the defendant’s motion with respect to the remaining eleven plaintiffs.

Nine of the eleven plaintiffs claimed damages for personal injuries to themselves. The plaintiffs do not dispute the accuracy of evidence provided by the defendant, based on the notices of claim and General Municipal Law hearings, that their various illnesses (i.e., leukemia, Hodgkin’s disease, seizure disorder, non-Hodgkin’s lymphoma) were diagnosed on the dates stated.

Two of the eleven plaintiffs claimed damages for wrongful death.

The key issues presented are – whether the personal injury claims of 11 remaining plaintiffs, belonging to the 1st of the four actions, should have been dismissed as untimely under the “date of discovery” rule in Civil Practice Law and Rules (CPLR); and that the remaining plaintiffs were improperly joined; and, that the consolidation of the four actions were also improper.

In a cause of action to recover damages for personal injuries caused by the latent effects of exposure of the body to toxic substances, the accrual date is determined by the discovery rule set forth in CPLR. Prior to the enactment of CPLR in 1986, the Statute of Limitations commenced to run upon the date of exposure to the harmful substance, even though the ill effects of such exposure were not manifested until years later. The harshness of this rule was remedied by CPLR, which provides that the cause of action accrues, and the Statute of Limitations commences to run, upon discovery of the injury itself. Thus, the three-year Statute of Limitations for personal injury actions commences to run upon the date of discovery of the injury or “the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” . Where, as here, General Municipal Law are applicable because the claim is asserted against a municipality, the Statute of Limitations of one year and 90 days is measured from the date of discovery of the injury or from the date when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier. The time within which to commence an action under CPLR may be extended – “Notwithstanding the provisions of subdivisions two and three of this section, 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; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege 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 and that he has otherwise satisfied the requirements of subdivisions two and three of this section”.

On the issue with regard to the timeliness of the wrongful death causes of action of the plaintiffs, the court concludes that their causes of action are barred by the two-year Statute of Limitations in General Municipal Law, which runs from the date of death the two (2) plaintiffs died in 1990 and 1988, respectively, and the 1st action was not commenced until 1993.

The Statute of Limitations period in General Municipal Law for wrongful death actions is not affected by the discovery rule in CPLR, which, by its express language is limited to causes of action to recover damages for personal injury and injury to property. If the wrongful death causes of action had been timely commenced, the provisions of CPLR would be relevant to the issue of whether the decedents had viable personal injury causes of action at the time of their deaths.

Although the wrongful death causes of action are untimely, since the complaint in the 1st action is not included in the record on appeal, the court assumes for purposes of this appeal that the two (2) plaintiffs also asserted causes of action for personal injuries to their decedents which are governed by CPLR. Hence, upon consideration of the provisions in CPLR and their purpose, the court concludes that the defendant’s motion to dismiss the subject plaintiffs’ personal injury causes of action should have been granted.

The court notes that the plaintiffs do not dispute that the date their causes of action accrued, i.e., the “date of discovery of the injury” under CPLR 214-c(3), is the date their illnesses were diagnosed. As the illnesses of the plaintiffs in question were all diagnosed by the end of 1991, the action commenced in June 1993, more than one year and 90 days later, was untimely under CPLR. Accordingly, the plaintiffs in question must rely on CPLR, which applies in those situations where the cause of the injury is unknown at the time that the injury is discovered.

In order to take advantage of CPLR, the plaintiffs in question had to present evidence that they could meet three criteria: (1) they learned that harmful substances at the landfills caused their illnesses within five years after their illnesses were diagnosed, (2) this action was commenced within one year of discovery of the cause, and (3) there was insufficient information available to discover the cause prior to the expiration of the one year and 90-day Statute of Limitations. Contrary to the parties’ contentions, the court does not find the subject plaintiffs’ notices of claim helpful in resolving these issues. It is true that the allegation in the original notices of claim that the cause of the subject plaintiffs’ injuries was discovered in March 1992 renders the causes of action interposed in June 1993 untimely on their face under CPLR. However, the plaintiffs disavowed this allegation and amended their notices of claim so as to leave open the possibility that the cause was discovered at another, presumably later, time. On the other hand, we disagree with the subject plaintiffs’ contention that the defendant’s failure to oppose their motion to amend the notices of claim constituted a concession with respect to any legal issues surrounding its Statute of Limitations defense.

The subject plaintiffs were unable to satisfy the first two criteria in CPLR because they made it very clear in their submissions to the Supreme Court that they had not as yet discovered the cause of their injuries. Although the plaintiffs contended that scientists were in the process of identifying clusters of illnesses in residents who lived near the landfills and that they believed such illnesses would ultimately be traced to chemicals at the landfills, their own expert acknowledged that any link between the landfills and the plaintiffs’ illnesses was still in the hypothetical stage.

In cases where the medical diagnosis of the injury does not indicate that a toxic substance was the cause, a determination as to when there was sufficient information available to a plaintiff to discover the cause will often present a factual issue for the jury. But that issue arises after the cause of the injury is discovered, when the plaintiff must show that the cause could not have been discovered within the statutory periods. If a plaintiff does not discover the cause within five years of discovery of the injury, the issue of whether it was possible to discover the cause sooner is irrelevant.

The court recognizes that CPLR should be read liberally to further its remedial purposes. However, there is no question that the plaintiffs’ claims are untimely under CPLR which provides only a limited amount of time for an injured plaintiff, whose claim is time barred, to discover the cause of his injury and commence suit. A Westchester County Personal Injury Lawyer said that the statute does not contemplate that a plaintiff may in effect indefinitely toll the Statute of Limitations while searching for the cause of the injury.

Our determination is limited to the narrow holding that the subject plaintiffs’ claims are time barred under CPLR and that they have failed to show that another section of the provision applies. Since CPLR provides the subject plaintiffs with a five-year period in which to discover the cause of their injuries, and that five-year period has not yet elapsed for some plaintiffs, we do not reach the issue of whether they may commence another action if they succeed in discovering a connection between their illnesses and harmful substances at the landfills within that period. In addition, since the subject plaintiffs asserted that they had not yet discovered that any substances at the landfills caused their injuries, it is unnecessary to reach the issue raised that discovery of the cause of the injury for CPLR purposes requires discovery of the particular substance at fault.

The court concludes that these plaintiffs’ claims are time-barred under CPLR, and their allegation that they have not, as yet, discovered the cause of their injuries precludes a finding that their claims are timely under CPLR.

Meanwhile, plaintiffs raise two alternative arguments regarding the Statute of Limitations. The plaintiffs allege that they were still being exposed to toxic emissions from the landfills which would not affect the accrual date of their causes of action since the date of discovery of the injury is the key under CPLR, and there is no continuing-wrong exception to the comprehensive rules in CPLR. The court concludes that these arguments are unwarranted.

The court concludes that the defendant’s motion to dismiss the claims of the 11 plaintiffs under CPLR should have been granted and the Supreme Court’s order should be modified accordingly.

On the issue that the remaining plaintiffs in the 1st action were improperly joined because their claims involve different disorders, different allegations as to exposure to the substances at the landfills, and different issues of proximate, the defendant’s moved to sever the claims in the 1st action. The court denies the same. The plaintiffs’ claims involve common questions of law and fact regarding, inter alia, the defendant’s operation of the landfills, the substances deposited there and the health effects of exposure to such. The defendant has failed to establish that the factual differences among the plaintiffs’ claims in the 1st action warrant a severance at this stage of the proceedings.

However, the consolidation of the four actions is improper. The record contains insufficient information about the individual claims of the plaintiffs in the 2nd, 3rd and 4th actions to determine whether consolidation or a joint trial would be appropriate and whether the presentation of the claims in all four actions before a single jury would unfairly bolster the case against the defendant. The motion for consolidation is therefore denied without prejudice to renewal. The court notes that the plaintiffs sought consolidation primarily in order to facilitate common disclosure. The defendant does not dispute that common disclosure would avoid needless duplication, as it appears that the plaintiffs in the four actions will be relying on the same scientific investigation of the landfills. Nevertheless, consolidation is unnecessary since the parties can consent to the joint use of discovery material if they be so advised.

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