13-1871-cv Greenberg v. U.S. E.P.A.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF**  **APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL**  **APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.** 

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at 1 the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New 2 York, on the 18 th day of March, two thousand fourteen. 3 4 PRESENT: 5 B ARRINGTON D. P ARKER , 6 G ERARD E. L YNCH , 7 C HRISTOPHER F. D RONEY , 8 Circuit Judges

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_____________________________________ 10 11 B RUCE G REENBERG and A NGELA G REENBERG , 12 13 Plaintiffs-Appellants , 14 15 v. No. 13-1871-cv 16 17 U NITED S TATES E NVIRONMENTAL P ROTECTION 18 A GENCY , THE P ORT A UTHORITY OF N EW Y ORK 19 AND N EW J ERSEY , S ILVERSTEIN P ROPERTIES , I NC ., 20 and B OVIS L END L EASE LMB, I NC

. (FKA L EHRER 21 M C G OVERN B OVIS , I NC .), 22 23 Defendants-Appellees

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_____________________________________  25 26 FOR PLAINTIFFS-APPELLANTS: S TEVEN K. F RANKEL (Stephen M. Cantor, on the 27 brief ), Stephen M. Cantor, P.C., New York, New 28 York. 29

 The Clerk of the Court is directed to amend the official caption to conform to the above.2 1 FOR DEFENDANT-APPELLEE J AMES E. T YRRELL (Joseph E. Hopkins, Alyson N. 2 BOVIS LEND LEASE LMB, INC: Villano, on the brief ), Patton Boggs LLP, Newark, 3 New Jersey. 4 5 Appeal from the judgment of the United States District Court for the Southern District of 6 New York (Alvin K. Hellerstein, J. ). 7 8 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND 9

DECREED that the judgment of the district court is AFFIRMED. 10 Bruce and Angela Greenberg appeal from an April 11, 2013 Memorandum and Order of 11

the United States District Court for the Southern District of New York (Alvin K. Hellerstein, J. ) 12 granting a motion for summary judgme nt in favor of defendants and dismissing all of Plaintiffs13 Appellants’ claims. We assume the parties’ fam iliarity with the underlying facts, the procedural 14 history, and the issues for review. 15 Greenberg worked as a demolition and debris worker at the World Trade Center (“WTC”) 16 site immediately following the destruction of the twin towers on September 11, 2001. He brought 17 this complaint in New York Supreme Court on Ma rch 3, 2005 seeking to recover for a number of 18 injuries allegedly suffered as a result of this work. 1 The case was then removed to the Eastern 19 District of New York, and transf erred to the Southern District of New York pursuant to the Air 20 Transportation Safety and System Stabilizatio n Act, § 408(b)(3), Pub. L. No. 107-42, 115 Stat. 21 230 (2001). In response to defe ndant Bovis Lend Lease LMB, Inc.’s motion for summary 22 judgment, Greenberg limited his cl aim to two injuries: his claim based on his respiratory ailments 23

and his claim based on sarcoidosis. The district court granted summary judgment for the 24 defendants on these two remaining claims, finding that they were barred by New York’s three- 25

1 Plaintiff-appellant Angela Greenberg is Bruce Greenberg’s wife. She brings claims based on the alleged injuries suffered by her husband.3 year statute of limitations for actions to reco ver for personal injury allegedly caused by the 1 exposure to a substance. 2 This appeal followed. 2 This Court reviews a summary judgment decision de novo and applies “the same standards 3 that govern the district court’ s consideration of the motion.” Kaytor v. Elec. Boat Corp. , 609 F.3d 4 537, 546 (2d Cir. 2010). A grant of summary judgment should be affirmed “only where there is 5 no genuine issue of material fact to be tried, and the facts as to which there is no such issue 6 warrant the entry of judgment for th e moving party as a matter of law.” Id. at 545 (citing Fed. R. 7 Civ. P. 56(c)(2)). In making its determinations, we “draw all reasonable inferences in favor of the 8 nonmoving party, and [do] not ma ke credibility determinations or weigh the evidence.” Reeves v. 9 Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). 10 Upon our de novo review of the record, we find that th e district court co rrectly concluded 11 that Greenberg’s claim is barred by the statute of limitations. The three-year limitations period 12 under New York law begins to run on “the date of discovery of the injury by the plaintiff or . . . 13 the date when through the exercise of reason able diligence such injury should have been 14 discovered by the plaintiff, whiche ver is earlier.” N.Y. C.P.L.R. 214-c. The New York Court of 15 Appeals has held that the “referen ce to ‘discovery of the injury’ was intended to mean discovery 16

of the condition on which the clai m was based and nothing more.” In re N.Y. Cnty. DES Litig. , 89 17 N.Y.2d 506, 513 (1997). Courts in New York have accordingly rejected the argument that the 18 limitations period does not begin to run until the pl aintiff discovers or reasonably could discover 19 the “nonorganic etiology of th[e] condition,” id. at 514, or until the condition is diagnosed, see, 20

2 Greenberg originally named six entities as defendants: the United States Environmental Protection Agency, the Port Authority of New York and New Jersey, Silverstein Prop erties, Inc., Bovis Lend Leas e LMB, Inc., the New York City Department of Environmental Protection, and the New York City Department of Health and Mental Hygiene. Greenberg subsequently stipulated to the dismissal of his actions against the New York City Department of Environmental Protection and the New York City Department of Health and Mental Hygiene. The district court decided the motion for summary judgment as it related to the four remaining defendants. The E.P.A. has indicated that Greenberg never perfected service upon it, and it did not participate in the case at either the district court level or before this Court.4 e.g. , Galletta v. Stryker Corp. , 283 F. Supp. 2d 914, 917 (S.D.N.Y. 2003) (under New York law 1 “[t]he three year limitations period runs from the date when plaintiff first noticed symptoms, 2 rather than when a physician first diagnosed th ose symptoms”). The New York Court of Appeals 3 has indicated, however, that “there may be situati ons in which the claimant may experience early 4 symptoms that are too isolated or inconsequential to trigger the running of the Statute of 5

Limitations.” In Re N.Y. Cnty. DES Litig. , 89 N.Y.2d at 514 n.4. 6 Greenberg contends that, although he bega n suffering from respiratory problems shortly 7 after he started working at the WTC site, these sy mptoms were “too isolated or inconsequential” 8 to trigger the three-year lim itations period. His deposition testimony, however, undermines this 9 argument. Greenberg testified that he began “co ughing and bringing up all ki nds of black stuff” 10 during the weeks he was working at the WTC site. As an immediate reaction to the air at the 11 WTC site, this might be inadequate to trigger the running of the statute of limitations. Here, 12 however, Greenberg stated that hi s respiratory symptoms persisted long after he c eased his work 13

at the WTC site in October of 2001. Greenberg’s own medical expert, Dr. Gwen S. Skloot, 14 admitted that, “[b]y his own report, [Greenberg’s] respiratory symptoms began 10 days after his 15 initial exposure at the WTC disast er site,” and that “[h]e conti nues to have frequent wheezing, 16 chest tightness, chronic cough and sh ortness of breath.” Indeed, Greenbe rg testified th at he visited 17 his doctor shortly after leaving the WTC site, in part becau se of complaints that he was 18 “coughing” and “choking.” The doctor diagnosed Gree nberg with a nasal infection and prescribed 19 nasal sprays, but Greenberg tes tified that, although th e sprays ameliorated the cough somewhat, 20 he “always had a cough persisting.” This conclu sion is reinforced by Greenberg’s admission in 21 the amended complaint that he learned of his wheezing and Obstructive Airway Disease injuries 22

in October 2001. 235 Since Greenberg began suffering from his resp iratory ailments shortly after September 11, 1 2001, and these symptoms, by his own account, pers isted long after he left the WTC site and 2 failed to respond to medication that his doctor prescribe d, we conclude that Greenberg had notice 3 of his respiratory ailments before March of 2002. Furthermore, because Greenberg’s expert 4 testified that Greenberg had sarcoidosis of the lungs, which typically manifests itself in 5 respiratory symptoms such as coughing and difficulty breathing, Gr eenberg also had notice of his 6 sarcoidosis before March of 2002. Accordingly, Gree nberg’s claims based on respiratory ailments 7 and sarcoidosis are both barred by New York’s three-year statute of limitations. 8 The judgment of the district court is AFFIRMED

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FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12