147 A.D.2d 165, Prego v. City of New York

Citation:147 A.D.2d 165, 541 N.Y.S.2d 995
Party Name:Prego v. City of New York
Case Date:May 30, 1989
Court:New York Supreme Court Appelate Division, Second Department

Page 165

147 A.D.2d 165

541 N.Y.S.2d 995

Veronica PREGO, Respondent,


The CITY OF NEW YORK, et al., Appellants, et al., Defendant.

Supreme Court of New York, Second Department

May 30, 1989.

Page 166

[541 N.Y.S.2d 996] Peter L. Zimroth, Corp. Counsel, New York City (Stephen J. McGrath and Mindy Kallus, of counsel), for appellants.

Wilner & Associates, P.C., New York City (Diane S. Wilner and Lee S. Gayer, of counsel), and Castor & Karten, New York City (Susan Karten, of counsel), for respondent (one brief filed).


BROWN, Justice Presiding.

On this appeal we are asked to determine whether CPLR 214-c, which permits commencement of an action within three years of discovery of an injury caused by "the latent effects of exposure to any substance" applies to the HIV/HTLV virus which causes Acquired Immune Deficiency Syndrome (hereinafter AIDS). 1 We conclude that it does.

In July 1982, plaintiff Veronica Prego, a native of Argentina and a 1980 graduate of a Buenos Aires medical school, began working as an unpaid extern at the defendant Kings County Hospital (hereinafter the hospital). 2 On some occasion during the months of November 1982-January 1983 (the plaintiff was unsure of the exact date), while acting as an assistant to defendant Dr. Joyce Fogel, a hospital intern, the plaintiff was pricked by an HIV-contaminated needle. According to the plaintiff, after drawing blood cultures from an AIDS-afflicted patient, Dr. Fogel had negligently [541 N.Y.S.2d 997] placed one of the several needles she had used on the patient's bed, mixed in amongst "gauze, wrappers and other refuse" which it was the plaintiff's job to clean up. The plaintiff immediately consulted the Student Health Administration, and was assured that there were no known cases of a health care worker contracting AIDS by means of a needle stick. Approximately one year later, in the early part of 1984, the plaintiff sustained another needle stick while drawing blood from an AIDS patient. At the time of this incident the plaintiff had been on duty for some 22 or 23 hours, and she alleged that again, as in the first episode, there were inadequate disposal facilities for contaminated needles.

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In October 1984, the defendant Dr. Sheldon Landesman asked the plaintiff to participate in a study that he was conducting in cooperation with the hospital of the incidence of HIV and/or HTLV antibodies among health care workers. In March 1985, as a result of that study, the plaintiff was informed that she had tested positive for the HIV virus, although she had no symptoms of the disease. In retrospect, however, she indicated that it was possible that she had been afflicted with "AIDS prodrome", since she had been suffering from fatigue, depression and weight loss. At the time she had attributed these maladies to overwork and marital problems. In November 1987, approximately two and a half years later, the plaintiff developed pneumocystis carinii pneumonia, a characteristic opportunistic infection, and was diagnosed as having AIDS.

On February 11, 1988, the plaintiff served a notice of claim on the municipal defendants, and on or about July 5, 1988 commenced this action. The complaint alleged causes of action sounding in negligence on the part of both Dr. Fogel and the hospital, the latter for failing to provide adequate procedures and equipment for the safe disposal of contaminated needles, breach of fiduciary duty on the part of the hospital and Dr. Landesman for disclosing the results of her AIDS test in March 1985, negligent infliction of emotional distress, and breach of contract for failure to provide a safe workplace. The plaintiff served her amended verified complaint on or about September 6, 1988.

Following service of their verified answers, in which the defendants asserted the affirmative defense of the Statute of Limitations as a bar to the plaintiff's action, the plaintiff moved to dismiss the affirmative defense, arguing that since she had contracted AIDS in November 1987, the commencement of her action in June-July 1988 was well within the one-year-and-90-day limitation prescribed by General Municipal Law § 50-i and McKinney's Unconsolidated Laws of N.Y. § 7401 (New York City Health and Hospitals Corporation Act § 20 [L.1969, ch. 1016, § 1, as amended]. Defendants City of New York, the hospital, New York City Health and Hospitals Corporation and Dr. Fogel opposed the motion and cross-moved to dismiss the complaint on the ground that the action was time-barred. 3 They contended that the plaintiff's cause of

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action arose upon the happening of the event upon which her claim was based, i.e., in November 1982-January 1983, when she received her needle stick injury, rather than on the date when her AIDS symptoms developed. Accordingly, the appellants argued, her time to commence an action expired one year and 90 days later, or some time in January-April 1984.

The parties' argument on the motion and cross motion centered on whether the provisions of the 1986-enacted statute, CPLR 214-c, which provides for a discovery rule for determining the date of accrual of causes of action based upon "the latent effects of exposure to any substance" were intended to apply to transmissions of the AIDS virus. The parties supported their contentions with various medical publications [541 N.Y.S.2d 998] and public information documents concerning AIDS. In addition, a question was presented as to whether the plaintiff could have discovered her condition earlier through the exercise of reasonable diligence. However, it was conceded by the appellants at oral argument upon the motion and cross motion that, assuming CPLR 214-c applied, the question of when the plaintiff should have been aware of her condition was an issue to be resolved by the finder of the facts (see, McLaughlin, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 214-c, at 331 [1989 Pocket Part].

The court (Bernstein, J.) denied both the plaintiff's motion and the appellants' cross motion. In its accompanying memorandum decision (141 Misc.2d 709, 534 N.Y.S.2d 95), it found that the legislative history indicated that CPLR 214-c had been enacted to remedy the injustice which resulted in cases where exposure to noxious agents caused latent injury that did not become manifest for a considerable period of time; and where, as a result of prior case law, which began the running of the Statute of Limitations from last exposure, injured parties were effectively nonsuited before they were aware that they had suffered injury. The court also concluded, based upon, inter alia, the plain wording of the statute, that the evil sought to be remedied by section 214-c included injuries resulting from...

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