Smith v. DeCarolis, et al,
In the past year, for the first time, the issue of statute of limitations in lead paint litigation has been tested in several Supreme Court cases.
Rather than tolling for infancy until the age of 18 combined with the three-year negligence statute of limitations, the courts have held that the statute of limitations in lead paint cases falls under the purview of CPLR 214-c. In pertinent part, it states that: “for personal injury…caused by the latent effects of exposure to any substance…[it] must be commenced…from the date of discovery of the injury.” The courts have further held that injury refers to an actual illness, physical condition or other similarly discoverable objective manifestation of the damage caused by previous exposure to an injurious substance. Moreover, “it is the defendants’ burden to affirmatively show that the plaintiff was aware of his or her lead poisoning, which has deemed to be the primary condition on which a plaintiff is seeking relief.” It is not sufficient to merely show that the plaintiff was aware of his or her ADHD or learning disabilities while in high school.
The courts have further held that a defendant can establish a prima facie case showing that the statute of limitations has expired by establishing the date as to when the plaintiff was first tested for lead. However, in opposition to such a motion, the courts have made it extremely easy for a plaintiff to raise a material issue of fact and defeat a statute of limitations motion. In a recent Fourth Department Supreme Court case, Judge Clark held that “in response [to the evidence that the plaintiff was tested for lead as a child], the plaintiff submitted an affidavit stating that he did not recall being tested for lead poisoning, he did not recall being treated for lead poisoning, he did not recall anyone in his family speaking with him about testing for lead poisoning as a child, and that he was unaware of the symptoms of childhood lead poisoning while growing up.”
Judge Clark further held that “the plaintiff, through his affidavit, contends that he was not aware of his chelation because he was only 21 months old and further stated he knew absolutely nothing about his lead poisoning growing up, has raised a material issue of fact.”