Greene v. Abbott Laboratories
| Decision Date | 30 March 1989 |
| Citation | 148 A.D.2d 403,539 N.Y.S.2d 351 |
| Parties | Albert GREENE, etc., Plaintiff-Appellant, v. ABBOTT LABORATORIES, et al., Defendants-Respondents, and American Home Products Corporation, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
P.F. McAloon, New York City, for plaintiff-appellant.
D.M. Covey, New York City, for defendants-respondents.
Before KUPFERMAN, J.P., and ASCH, WALLACH, SMITH and RUBIN, JJ.
Order, Supreme Court, New York County (Ira Gammerman, J.), entered February 2, 1988, which granted the motion of defendants Merck, Abbott Laboratories, the Upjohn Company, E.R. Squibb & Sons, Inc., and Eli Lilly & Co. to dismiss the second, fourth and sixth causes of action of the complaint for wrongful death as barred by the statute of limitations, and the judgment of the same court entered thereon on March 3, 1988, are unanimously affirmed, without costs.
On March 9, 1969, one month after her 18th birthday, plaintiff's intestate, his daughter Susan, died allegedly from a type of cancer which had developed three years before, brought on because her mother had taken the drug diethylstilbestrol (DES) while pregnant with Susan in 1950 and 1951. Defendants-respondents are all manufacturers of this drug.
Plaintiff, as Susan's administrator, commenced this action in June and July 1987 asserting three causes of action for personal injury and three causes of action for wrongful death. We are only concerned with the latter here.
The IAS court granted respondents' motion to dismiss the wrongful death causes of action on the ground that they are barred by the applicable statute of limitations. At issue on this appeal is whether the so-called one year "revival" statute for injury arising from ingestion of five toxic substances (including DES) (L.1986, ch. 682, Sec. 4), operates in this action so as to resurrect plaintiff's otherwise time-barred wrongful death claims or, in the alternative, whether, by virtue of respondents' wrongful conduct, they are estopped from raising this defense.
The revival statute provides:
[E]very action for personal injury, injury to property or death caused by the latent effects of exposure to diethylstilbestrol, [and four other substances] upon or within the body or upon or within property which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act; 1 provided, however, that this section shall not revive any action for damages for a wrongful act, neglect or default causing a decedent's death which was not barred as of the date of the decedent's death and could have been brought pursuant to section 5-4.1 of the estates, powers and trust law.... (underscoring added)
It is clear to us that in the two years following the death of plaintiff's intestate, an action by her administrator "was not barred as of the date of decedent's death and could have been brought pursuant to Section 5-4.1 of the estates, powers and trust law ...". From this conclusion, we hold that the present action, brought eighteen years after decedent's death, is time-barred.
The two-year limitation period contained in EPTL 5-4.1 commences to run from the date of decedent's death (In Re Velez, 56 A.D.2d 764, 392 N.Y.S.2d 292; Bonilla v. Abbott, 113 A.D.2d 861, 862, 493 N.Y.S.2d 592). Thus, plaintiff had two years to assert in a timely fashion wrongful death causes of action. Such an action would have complied with a further prerequisite for a viable wrongful death claim, namely the existence of a still timely personal injury claim on the date of death.
Ordinarily, a decedent's failure to commence a timely personal injury claim bars any subsequent action for wrongful death (Fontheim v. Third Ave. Ry., 257 App.Div. 147, 149, 12 N.Y.S.2d 90; Myers v. City of Plattsburgh, 13 A.D.2d 866, 214 N.Y.S.2d 773). In this case decedent's personal injury claims were tolled during her infancy under CPLR § 208 (...
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