State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 5, 2016 521308 

________________________________

LESLIE MALONE et al.,

Appellants,

v MEMORANDUM AND ORDER

COURT WEST DEVELOPERS, INC.,

Respondent,

et al.,

Defendant.

________________________________

Calendar Date: March 25, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Hach & Rose, LLP, New York City (Robert F. Garnsey of

counsel), for appellants.

Levene Gouldin & Thompson, LLP, Binghamton (Cynthia

Manchester of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from an order of the Supreme Court (Tait, J.),

entered March 13, 2015 in Broome County, which granted a motion

by defendant Court West Developers, Inc. for summary judgment

dismissing the complaint against it.

Beginning in January 2002 and continuing until

approximately June 2003, plaintiff Leslie Malone (hereinafter

plaintiff) worked at a bank branch located in a building owned by

defendant Court West Developers, Inc. (hereinafter defendant). 
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Plaintiff1 commenced an action on September 26, 2005, alleging

that, while working at the branch, he was exposed to mold

contamination in the building that caused personal injuries in

the form of asthma and permanent allergies. Defendant thereafter

moved for summary judgment dismissing the complaint on the ground

that it was not timely commenced. Supreme Court granted the

motion, finding that plaintiff was aware of the primary symptoms

of his injuries more than three years prior to the commencement

of the action. Plaintiff appeals, and we reverse.

As an initial matter, in order to establish its entitlement

to summary judgment dismissing the complaint on the basis of

statute of limitations, defendant was required to show, at a

minimum, that plaintiff's alleged exposure to a toxic substance

did not occur within three years of the commencement of the

action (see generally Germantown Cent. School Dist. v Clark,

Clark, Millis & Gilson, 100 NY2d 202, 206 [2003]). If defendant

exposed or continued to expose plaintiff to a toxic substance

within three years of the commencement of the action, plaintiff

could not have discovered any resulting injuries from such

exposure at a time that would be barred by CPLR 214-c (2). Given

that a plaintiff cannot discover the injurious effects of

exposure to a toxic substance prior to that exposure occurring,

and considering defendant's concession that plaintiff continued

to be exposed to the mold at a time less than three years prior

to the commencement of the action, defendant is not entitled to

summary judgment dismissing the complaint on statute of

limitations grounds. 

Turning to the allegedly injurious exposure taking place

more than three years prior to the commencement of the action, we

find that defendant did not prove as a matter of law that

plaintiff should have discovered his allergy and asthma

conditions at a time that is barred by CPLR 214-c (2). Although

1 Although initially there were additional plaintiffs, who

were all named as appellants in the notice of appeal, they have

all since discontinued their claims. Further, it appears that

the action was discontinued as to defendant C.T. Male Associates,

P.C.
-3- 521308 

plaintiff exhibited some symptoms, including skin and eye

irritation and tightness in the throat, in the spring and summer

of 2002, plaintiff also explained that such symptoms ceased when

he would leave the building at the end of his shifts. Further,

plaintiff averred that he did not seek medical treatment for

these symptoms, miss work as a result of the symptoms or file a

workers' compensation claim until late October 2002. Viewing the

evidence in the light most favorable to plaintiff, the symptoms

that plaintiff exhibited more than three years prior to the

commencement of the action were too intermittent and

inconsequential to trigger the running of the statute of

limitations pursuant to CPLR 214-c (2) (see Castiglione v E.A.

Morse & Co., Inc., 22 AD3d 934, 935 [2005]; Rosner v Mira, Inc.,

16 AD3d 277, 278 [2005]; Cabrera v Picker Intl., 2 AD3d 308,

308-309 [2003]; Johnson v Exxon Corp., 258 AD2d 946, 685 [1999];

compare Scheidel v A.C. & S., Inc., 258 AD2d 751, 753 [1999], lv

denied 93 NY2d 809 [1999]). Accordingly, defendant's motion for

summary judgment dismissing the complaint should have been

denied. 

Garry, Lynch, Devine and Clark, JJ., concur.

ORDERED that the order is reversed, on the law, with costs,

and motion denied.

ENTER:

Robert D. Mayberger

Clerk of the Court