Coughlin v. International Business Machines Corp.

• Decision Date: 05 December 1996
• Citation: 650 N.Y.S.2d 477,225 A.D.2d 256
• Parties: , Prod.Liab.Rep. (CCH) P 15,000 Mary Jane COUGHLIN et al., Appellants, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 477

650 N.Y.S.2d 477

225 A.D.2d 256, Prod.Liab.Rep. (CCH) P 15,000

Mary Jane COUGHLIN et al., Appellants, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 5, 1996.

Levy, Phillips & Konigsberg (Alani Golanski of counsel), New York City, for appellants.

Cerussi & Spring (Peter Riggs of counsel), White Plains, for respondent.

Before MERCURE, J.P., and YESAWICH, PETERS, SPAIN and CARPINELLO, JJ.

YESAWICH, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Wood, J.), entered May 1, 1995 in Westchester County, which granted defendant's motion for summary judgment dismissing the complaint.

In her verified complaint, filed on February 25, 1994, plaintiff Mary Jane Coughlin (hereinafter plaintiff) alleges that she sustained repetitive stress injuries as a result of using a typewriter and two computer keyboards, all of which were manufactured by defendant. Plaintiff, who used the typewriter in 1986 and 1987, the first keyboard from 1988 through March 1991 and the second keyboard thereafter, first experienced symptoms (including numbness, tingling, pain and loss of function in her upper extremities) in September 1989, and was diagnosed as suffering from epicondylitis in her right arm in the same month. She, and her husband, derivatively, seek to recover for these physical injuries, which they contend were proximately caused by the defective design of defendant's products and by defendant's failure to warn of the dangers posed thereby.

After issue was joined, defendant moved for summary judgment on Statute of Limitations grounds. In response, plaintiff proffered her attorney's affidavit, along with that of a medical expert, outlining the nature and causation of repetitive stress injuries in general including epicondylitis, and their connection to data entry equipment such as that used by plaintiff. Supreme Court granted defendant's motion--which it denominated one "to dismiss * * * and for summary judgment upon statute of limitations grounds"--and plaintiffs appeal.

At the outset, we note that inasmuch as defendant's notice of motion expressly sought "summary judgment" and referred to both CPLR 3211(a)(5) and 3212, and plaintiffs' attorney's answering affidavit, self-described as being "in opposition to defendant's motion for summary judgment", expressly sought denial of "defendant's motion for summary judgment", plaintiffs' claim that the motion must be treated as one directed to the pleadings only, pursuant to CLPR 3211, must be rejected (see, Monteferrante v. New York City Fire Dept., 63 A.D.2d 576, 404 N.Y.S.2d 629, affd 47 N.Y.2d 737, 417 N.Y.S.2d 253, 390 N.E.2d 1177). Moreover, while they now assert that the question of when plaintiff was first injured is a factual matter, that "must ultimately be resolved * * * after discovery", plaintiffs' opposition papers do not suggest that they opposed defendant's application on the ground that further development of the record would enable them to uncover facts necessary to withstand the motion (see, CPLR 3211[d]; 3212[f] ). ¹

Turning to the merits of plaintiffs' arguments with respect to when their claims should be deemed to have accrued, we see no reason to depart from the general principle that a cause of action for personal injury accrues when one is first injured as a result of another's wrongdoing (see, Kronos Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289; Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300, 200 N.E. 824). In this regard, we find unavailing plaintiffs' attempt to invoke the "discovery rule" applicable to actions for "personal injury * * * caused by the latent effects of exposure to any substance or combination of substances" (CPLR 214-c [2] ). Although the equipment involved here was obviously made up of "substances" (as is any tangible object), it was not plaintiff's contact with those materials, per se, that is alleged to have caused her injury. In our view, CPLR 214-c cannot reasonably be construed as applying to claims, such as these, wherein an injury or disease is not alleged to have resulted from the nature of the substances to which a plaintiff was exposed, but rather from the physical configuration of an object--here, the layout of a keyboard (see, Blanco v. American Tel. & Tel. Co., 223 A.D.2d 156, 160-161, 646 N.Y.S.2d 99, 102).

Admittedly, the "insidious" nature of the injuries in question makes it difficult to ascertain when there first was some actual deterioration of plaintiff's body structure (cf., Dorsey v. Apple Computers, 936 F.Supp. 89 (E.D.N.Y.1996)). However, we need not address whether that impediment justifies the adoption of a "bright line" rule, like that applicable to cases involving exposure to toxic substances prior to the enactment of CPLR 214-c, declaring that accrual must be deemed to have occurred when a plaintiff first used the offending product (see, Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 452, 634 N.Y.S.2d 18, 657 N.E.2d 1301; Blanco v. American Tel. & Tel. Co., supra, at 163, 646 N.Y.S.2d at 103-104), for even in the absence of such a rule these claims are time barred. Because the forces "set in motion" by defendant's alleged wrongs--its release of the keyboards into the market and its failure to warn of their allegedly injurious characteristics--plainly "touch[ed] the person" of plaintiff (Schmidt v. Merchants Despatch Transp. Co., supra, at 300, 200 N.E. 824) in, or prior to, ...