Germantown Sch. Dist. v. Clark Clark et al.
| Decision Date | 06 June 2002 |
| Docket Number | 91010,3 |
| Parties | GERMANTOWN CENTRAL SCHOOL DISTRICT, Respondent, v CLARK, CLARK, MILLIS & GILSON, AIA, et al., Defendants, and KEVAN R. JONES et al., Appellants. 91010 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date: |
| Court | New York Supreme Court — Appellate Division |
Sternberg & Gorman L.L.P., Hoosick Falls (Edward J. Gorman of counsel), for Kevan R. Jones, appellant.
Harter, Secrest & Emery L.L.P., Rochester (James C. Moore of counsel), for Robert T. Clark and another, appellants.
Lewis & Greer P.C., Poughkeepsie (Gunter Dully, Albany, of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Spain and Carpinello, JJ.
Appeal from an order of the Supreme Court (Connor, J.), entered October 18, 2001 in Columbia County, which, inter alia, granted plaintiff's cross motion to amend the complaint.
In 1985, plaintiff contracted with defendant Clark, Clark, Millis & Gilson, AIA (hereinafter CCM&G), an architectural firm, for architectural and engineering services in connection with an asbestos abatement project for a building owned by plaintiff. CCM&G thereafter retained defendant Robson & Woese Inc. (hereinafter Robson), a firm of engineers, as a consultant or subcontractor on the project. In December 1986, CCM&G and Robson apparently separately certified1 that all asbestos designated for removal in the contract had been abated and that there was no asbestos in those areas of the building. All of the work on the project was completed by late 1986 or early 1987.
Approximately 13 years later, in late 1999 or January 2000, contractors and consultants retained by plaintiff for a construction project on the same building advised plaintiff that asbestos had been discovered in areas of the building previously certified by defendants as asbestos-free. Plaintiff's investigation confirmed the presence of asbestos in those areas, which plaintiff has now partially abated. In October 2000, plaintiff commenced this malpractice action against CCM&G and its individual partners, defendants Robert T. Clark, Kevan R. Jones and Harold R. Millis, and against Robson, seeking to recover for the damage to its property due to the presence of asbestos in the building and its abatement costs. After joinder of issue, CCM&G, Jones and Robson moved for summary judgment on the ground that the action was barred by the three-year Statute of Limitations provided by CPLR 214 (6). Plaintiff opposed said motion and cross-moved for leave to serve an amended complaint to add causes of action for indemnification and restitution.
Supreme Court denied defendants' motion for summary judgment concluding that the toxic tort discovery rule of CPLR 214-c (2) applied, that plaintiff discovered the asbestos in the building in 1999 and thereafter timely commenced this action. Further, the court granted plaintiff's cross motion to amend its complaint. Robson, Clark and Jones appeal, arguing that plaintiff's action is untimely under CPLR 214 (a) and that the discovery rule of CPLR 214-c is inapplicable, and they contend that plaintiff's cross motion to amend its complaint should have been denied as the proposed causes of action lack merit.
The novel question presented in this appeal is whether this State's remedial date of discovery Statute of Limitations for certain toxic torts -- CPLR 214-c -- applies to the type of injury to its property which plaintiff claims, namely, the presence of asbestos in a building due to defendants' negligent abatement services which plaintiff discovers at a later date and requires removal. In MRI Broadway Rental v United States Min. Prods. Co. (92 NY2d 421), involving the installation during construction of asbestos-containing fireproofing material, the Court of Appeals left open the question of whether CPLR 214-c applies to these types of claims related to the presence of asbestos in a building and the need to abate it (id., at 429; see, 888 7th Ave. Assocs. Ltd. Partnership v AAER Sprayed Insulations, 199 A.D.2d 50, 51, lv dismissed, lv denied 84 NY2d 841 [clarified by City of New York v Lead Indus. Assn., 222 A.D.2d 119, 127]; First Bible Baptist Church v Gates-Chili Cent. School Dist., 172 A.D.2d 1057). We find that the statutory words, the legislative history and purpose behind the statute and existing case law support the conclusion that CPLR 214-c is not applicable to this action and that plaintiff's action was untimely under CPLR 214, entitling defendants to summary judgment dismissing plaintiff's complaint.
CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of Court of Appeals' decisions holding that toxic tort claims accrue upon the impact or exposure to the substance, even though the resulting illness or injury may not be manifested and discovered for a long time thereafter (see, Matter of New York County DES Litig., 89 NY2d 506, 513, citing Sponsor's Mem supporting L 1986, ch 682, 1986 Legis Ann, at 287; Jensen v General Elec. Co., 82 NY2d 77, 83-85; see also, Blanco v American Tel. & Tel. Co., 90 NY2d 757, 766; 16 NY Prac Series, NY Law of Torts § 19.25; see, e.g., Snyder v Town Insulation, 81 NY2d 429; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008, amended 55 NY2d 802, appeal dimissed, cert denied 456 US 967). In pertinent part, this statute provides as follows:
* * * the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance * * * upon or within the body or upon or within property must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier (CPLR 214-c [2] [emphases supplied]).
By its terms, CPLR 214-c (2) applies to actions for damages for "injury to property", but this is qualified by the requirement that the injuries were "caused by the latent effects of exposure" to the toxic substance (emphasis supplied). The injury to property of which plaintiff complains is the presence of the asbestos in its building -- after defendants had certified that the asbestos had been abated and that the designated area was free of asbestos -- and the need to abate it, injuries which occurred when the asbestos was left in the building (see, MRI Broadway Rental v United States Min. Prods. Co., 92 NY2d 421, 424, 428, supra []; see also, Maryland Cas. Co. v W.R. Grace & Co., 23 F.3d 617, 627 [2d Cir], cert denied 513 US 1052). However, assuming arguendo that "exposure" under this statute, broadly defined, includes errantly leaving asbestos in a building during an abatement project, i.e., "expos[ing]" the building to asbestos (CPLR 214-c [1] []), the injuries to plaintiff's property here were not "caused by the latent effects of exposure" to asbestos within the intendment of this statute. Rather, the injury or damage to plaintiff's property occurred and was complete when the asbestos was negligently left in the building, which immediately triggered the need to remove it, and no further or additional damage to the building (or to individuals) is alleged (see, Maryland Cas. Co. v W.R. Grace & Co., supra, at 628; MRI Broadway Rental v United States Min. Prods. Co., supra, at 427-428).
Thus, for purposes of the applicability of CPLR 214-c (2), injury to property due to installing or inadequately abating asbestos is distinguishable from property damage resulting from the gradual contamination of the land or groundwater due to leaking land fills or chemical/petroleum tanks -- the latter being "analogous to the slow progression of diseases such as asbestosis and cancer" -- which involve "latent" or insidious effects of exposure to toxic substances, i.e., effects which later manifest themselves after injury or damage has gradually occurred (Maryland Cas. Co. v W.R. Grace & Co., supra, at 627-628; cf., Rothstein v Tennessee Gas Pipeline Co., 87 NY2d 90; Scheidel v Aetna Cas. & Sur. Co., 258 A.D.2d 751, lv denied 93 NY2d 809; Christy v Harvey, 252 A.D.2d 755; Boswell v Leemilt's Petroleum, 252 A.D.2d 889; Oliver Chevrolet v Mobil Oil Corp., 249 A.D.2d 793). In this respect, importantly, CPLR 214-c does not apply to all claims involving toxic substances which are discovered in a building at a later date but, instead, is expressly limited to injuries caused by "latent effects of exposure" to the toxins (emphasis supplied).
While plaintiff did not discover that asbestos was present in the previously abated area of the building until 1999 or 2000, the delayed discovery does not create a latent effect attributable to the asbestos. CPLR 214-c was enacted to correct the injustice created by the old rule which failed to recognize that the adverse affects, including resulting illnesses and property contamination, of many toxic substances do not manifest themselves until many years after the exposure takes place (see, Matter of New York County DES Litig., 89 NY2d 501, 513, supra; Jensen v General Elec. Co., 82 NY2d 77, 84, supra). Thus, CPLR 214-c, by legislative choice of qualifying language and intent, applies only where the adverse effects of exposure to a toxin do not manifest themselves for many years after the exposure, i.e., to injuries caused by latent effects, and not where, as here, "there is no interval between the alleged exposure and resulting harm" (Dabb v NYNEX Corp., 262 A.D.2d 1079, 1079; see, Sweeney v General Printing, 210 A.D.2d 865, lv denied 85 NY2d 808; see also, Matter of New York County DES Litig., supra, at 514).
Here, while the presence of asbestos was discovered approximately 13 years after the abatement project was purportedly...
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