Clark v. Abbott Laboratories

• Decision Date: 16 March 1990
• Docket Number: No. 3,3
• Citation: 553 N.Y.S.2d 929,155 A.D.2d 35
• Court: New York Supreme Court — Appellate Division
• Parties: Kathleen CLARK, Respondent, v. ABBOTT LABORATORIES, Burroughs Wellcome Co., U.S.A., Inc., Eli Lilly & Company, Merrill Dow Pharmaceuticals, Inc., RXDC, Inc., Defendants, E.R. Squibb & Sons, Inc., Sterling Drug, Inc., the Upjohn Company, Appellants, et al., Defendants. Appeal

Page 929

553 N.Y.S.2d 929

155 A.D.2d 35

Kathleen CLARK, Respondent, v. ABBOTT LABORATORIES, Burroughs Wellcome Co., U.S.A., Inc. Eli Lilly & Company, Merrill Dow Pharmaceuticals Inc., RXDC, Inc., Defendants E.R. Squibb & Sons, Inc., Sterling Drug, Inc., the Upjohn Company, Appellants, et al., Defendants. Appeal No. 3.

Supreme Court, Appellate Division Fourth Department.

March 16, 1990.

Phillips, Lytle, Hitchcock, Blaine & Huber by Alexander C. Cordes, Buffalo, for appellant, E.R. Squibb & Sons, Inc.

Greene, Hershdorfer & Sharpe by John L. McGolderick, John J. Dee, John F. Brenner and Jonathan B. Fellows, Syracuse, for appellant, Eli Lilly & Co.

Lester, Schwab, Katz & Dwyer by Alexander C. Cordes, New York City, for appellant, Burroughs Wellcome Co., USA, Inc.

Bond, Schoeneck & King by John McGolderick, Syracuse, for appellant, Merck & Co., Inc.

Maloney, Gallup, Roach, Brown & McCarthy, P.C. by Brian Sutter and Daniel T. Roach, Buffalo, for appellant, Merrell Dow Pharmaceuticals, Inc.

Harter, Secrest & Emery by Bruce Hansen, Rochester, for appellant, Abbott Laboratories.

Winthrop, Stimson, Putnam & Roberts by Alexander C. Cordes, A. Edward Grashoff and Sheila Moeller Fessler, New York City, for appellant, RXDC, Inc.

Simpson, Thacher & Bartlett by Andrew S. Amer and Thomas C. Rice, New York City, for appellant, Winthrop Pharmaceuticals.

Sedgwick, Detert, Moran & Arnold by Alexander C. Cordes, New York City, for appellant, Upjohn Co.

Allen, Lippes & Shonn by Kimberly J. Czapranski, Buffalo, for respondent.

Before DENMAN, J.P., and BOOMER, BALIO and DAVIS, JJ.

BALIO, Justice:

The issue on this appeal is whether the one-year time period for commencement of actions under the toxic tort revival statute (L.1986, ch. 682, § 4) is a Statute of Limitations or a condition precedent. We hold that the time period is a Statute of Limitations and that the period may be extended by compliance with CPLR 203(b)(5).

Plaintiff Kathleen Clark was born in 1958. She allegedly sustained serious personal injuries by reason of her in utero exposure to diethylstilbestrol (DES). This action was commenced against eleven manufacturers of DES by delivering copies of the summons and complaint to the Broome County Sheriff on July 29, 1987, and by personal service upon all of the defendants on either September 18 or 23, 1987. Following joinder of issue, several defendants moved and cross-moved for summary judgment dismissing the complaint upon numerous grounds, most of which have been resolved by the Court of Appeals decision in Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069. This appeal is from an order denying defendants' application for summary judgment on the ground that delivery to the Sheriff did not extend the time period set forth in the revival statute.

The toxic tort revival statute provides that the claims of persons who had been injured by the latent effects of exposure to five substances, including DES, that were time-barred or had been dismissed previously because the Statute of Limitations had expired are "hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act" (L.1986, ch. 682, § 4). The statute took effect on July 30, 1986. The summons and complaint in this action were delivered to the Sheriff within the one-year period, and defendants were personally served within the 60-day period provided for by CPLR 203(b)(5). Personal service upon defendants was not made, however, within the one-year period set forth in the revival statute. Defendants contend that commencement of a revived action within the one-year period is a condition precedent and that delivery to the Sheriff cannot operate to extend the one-year period. Supreme Court rejected this argument, and we affirm.

We begin our analysis by noting that CPLR 203[b](5) operates to extend a statutory period of limitations for the service of a summons, but it does not extend a time period which constitutes a condition precedent (see, Seguritan v. Northwest Airlines, 86 A.D.2d 658, 446 N.Y.S.2d 397, affd 57 N.Y.2d 767, 454 N.Y.S.2d 991, 440 N.E.2d 1339; Savino v. Demiglia, 133 A.D.2d 389, 519 N.Y.S.2d 384; S & J Deli v. New York Prop. Ins. Underwriting Assn., 119 A.D.2d 652, 501 N.Y.S.2d 93; see also, McLaughlin, Supp. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C203:7, 1990 Supp., at 61, 63).

Whether the time period expressed in a statute constitutes a condition precedent or a Statute of Limitations ultimately is a question of legislative intent (see, generally, McLaughlin, Supp. Practice Commentaries, op. cit., CPLR C201:7, at 63). The Legislature has not expressed its intent on this specific issue. The Governor's Bill Jacket contains no expression of intent, and the parties have not suggested that a specific expression exists. We do note that the tort reform bill, as presented to the Governor, was entitled "AN ACT to amend the civil practice law and rules and the court of claims act, in relation to statute of limitations and liability for damages caused by the latent effects of exposure to certain substances or materials ..." This description, though somewhat indicative of intent, does not conclusively reveal that the Legislature intended the revival statute to be a Statute of Limitations. The language generally describes the entire tort reform package, including the enactment of a discovery-based Statute of Limitations (CPLR 214-c), and does not refer exclusively to the time period set forth in the revival section.

Also inconclusive is the Legislature's use of the phrase "provided that". Statutory and contractual provisions using similar condition precedent language ("unless") consistently have been treated as a Statute of limitations for the purpose of applying statutory tolling provisions (see, McKnight v. City of New York, 186 N.Y. 35, 78 N.E. 576; Conolly v. Hyams, 176 N.Y. 403, 68 N.E. 662; Hamilton v. Royal Ins. Co., 156 N.Y. 327, 50 N.E. 863.) Moreover, in considering the constitutionality of revival statutes using the word "provided", courts have described the time period set forth in the revival statute as a mere extension of the Statute of Limitations (see, Gallewski v. Hentz & Co., 301 N.Y. 164, 175, 93 N.E.2d 620; Matter of McCann v. Walsh Constr. Co., 282 App.Div. 444, 448-449, 123 N.Y.S.2d 509, affd 306 N.Y. 904, 119 N.E.2d 596). Sharrow v. Inland Lines, Limited, 214 N.Y. 101, 108-109, 108 N.E. 217 does not compel a contrary conclusion. In Sharrow, the Court of Appeals found use of the language "provided that" to constitute a condition precedent. In that case, however, the conditional language applicable to the time period appeared in the same statute creating a cause of action for wrongful death (L.1847, ch. 450), and the decision merely applies the general rule, discussed infra, that where a time period is imposed in the same statute creating the cause of action, the period is deemed a condition precedent.

Defendants contend that by restricting the toxic tort revival statute to claims for injuries caused by exposure to five substances, the Legislature intended to ensure to manufacturers of those substances some measure of predictability and risk limitation. In their view, the revival statute was not intended as a Statute of Limitations because the application of various tolling provisions would destroy the predictability as to the number of plaintiffs. We note that the First Department has recently espoused this view (see, Singer v. Eli Lilly & Co., 153 A.D.2d 210, 549 N.Y.S.2d 654). We disagree.

The Legislature's restriction of the cause of injury to five substances does not compel a conclusion that it intended to similarly restrict the time limitation. The revival statute was limited to those five substances where the prejudicial effect of the exposure-based Statute of Limitations was well known to the Legislature (see, Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 515, 541 N.Y.S.2d 941, 539 N.E.2d 1069, supra ) and to those "exceptional circumstances" which require that an injustice be rectified (id., at 514, 541 N.Y.S.2d 941, 539 N.E.2d 1069). Moreover, as noted in Hymowitz, the Legislature intended to extend the benefit of the revival statute to all plaintiffs, regardless of whether they previously had commenced a claim or whether they had known of their exposure to the substance. That broad inclusion of plaintiffs and the overriding remedial purpose of the statute support a conclusion that the Legislature did not intend the time period to be a condition precedent. ¹

We are not persuaded that application of this state's various tolling provisions will impose an unreasonable degree of unpredictability on defendants' liability exposure. The number of potential plaintiffs remains the same as on the date the legislation was enacted. A tolling provision does not increase the risk of exposure intended by the Legislature. Further, defendants have failed to demonstrate persuasively that, in the circumstances of the five substances, the tolling provisions will unreasonably impact upon predictability. Although the impact of the tolling effect of CPLR 203(b)(5) was known to defendants at the time of the motion in this case, there is no revelation in the record that the provision has had a substantial impact upon the liability risk of any defendant.

We also disagree with the First Department's perception that the Court of Appeals has construed "a legislative policy of uniformity" to require that the revival statute be construed as a condition precedent (see, Singer v. Eli Lilly & Co., supra, at 216, 549 N.Y.S.2d at 657). That perception is based upon a quote from the Court of Appeals decision in Hymowitz, supra, 73 N.Y.2d at 515, 541 N.Y.S.2d 941, 539 N.E.2d 1069 ² which, in our view, the First Department considered out of context. The quoted language specifically refers to a prior discussion...