Prego v. City of New York

• Decision Date: 31 October 1988
• Citation: 141 Misc.2d 709,534 N.Y.S.2d 95
• Parties: , 57 USLW 2319 Veronica PREGO, M.D. Plaintiff, v. The CITY OF NEW YORK, Kings County Hospital, New York City Health and Hospital Corporation, Joyce Fogel, M.D. and Sheldon Landesman, M.D., Defendants.
• Court: New York Supreme Court

Page 95

534 N.Y.S.2d 95

141 Misc.2d 709, 57 USLW 2319

Veronica PREGO, M.D. Plaintiff, v. The CITY OF NEW YORK, Kings County Hospital, New York City Health and Hospital Corporation, Joyce Fogel, M.D. and Sheldon Landesman, M.D., Defendants.

Supreme Court, Kings County.

Oct. 31, 1988.

Wilner and Associates, P.C., Castro and Karten, New York City, for plaintiff Veronica Prego.

Peter L. Zimroth, New York City, for defendants City of New York, Kings County Hosp., New York City Health and Hospital Corp. and Joyce Fogel, M.D.

Robert Abrams, Atty. Gen. State of N.Y., New York City, for Sheldon Landesman, M.D.

AARON D. BERNSTEIN, Justice.

Following her graduation from a foreign medical school, the plaintiff served as an unpaid extern at the defendant, Kings County Hospital. The "extern program" permitted the New York City Health and Hospital Corporation (HHC), another named defendant, to observe and evaluate the abilities of medical doctors who did not graduate from medical schools in the United States. If HHC was satisfied with the abilities of the externs, the doctors would probably be offered employment as interns.

In January, 1983 while assisting an intern, the defendant Joyce Fogel, M.D., in drawing blood from an AIDS patient, the plaintiff was stuck by a needle which had been used in the treatment of the AIDS patient. The needle had been left among gauze and other refuse on the patients bedding. The plaintiff was stuck as she proceeded to clear away what appeared to be ordinary refuse.

The incident was immediately reported to hospital authorities and all assured the plaintiff that her risk of contacting AIDS would be minimal since, at that time, no cases had been reported wherein a health worker had developed AIDS from rendering medical treatment to any AIDS patient.

In March, 1985, there was a study at Kings County Hospital to determine the incidents, if any, of AIDS among health care workers. The plaintiff was advised that she had tested positive for the AIDS virus. For more than two years thereafter she exhibited no symptoms that would indicate that she had AIDS. In November, 1987 however the plaintiff developed pneumocystics carinii pneumonia (PCP) a parasitic infection indicating that the plaintiff had AIDS. Several months later a notice of claim was filed against the defendants herein and in June of 1988 this action was commenced.

Although the plaintiff has alleged several causes of action, the complaint sounds generally in negligence and breach of contract. In their answers, among other defenses, defendants raised the affirmative defense of statute of limitations.

The plaintiffs now moves for an order, pursuant to CPLR 3211(b), dismissing the affirmative defenses which assert that plaintiff's action is untimely. ¹

The defendants, HHC, Kings County Hospital and Joyce Fogel, M.D., all cross-move for an Order dismissing the complai herein, pursuant to CPLR 3211(a)(5), or, alternatively, for an Order granting summary judgment in their favor pursuant to CPLR 3212.

It is defendants' position that plaintiff's causes of action accrued in January, 1983 when plaintiff was first "injured" (the first exposure to the aids virus). For the reasons that follow both the motion and cross-motion are denied.

Personal injuries caused by the latent effects of exposure to toxic or harmful substances, do not in many cases, manifest themselves until many years after the last exposure. Under prior New York Law, the statute of limitations began to run from the date of exposure and not from the date of discovery of the injury. Therefore, a negligence action against the City of New York had to be commenced within one year and ninety days from the date of the last exposure to a toxic or harmful substance. This was the rule even in those cases where the injured person was totally unaware of the injury. Thornton v. Roosevelt Hospital, 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002; Steinhardt v. Johns Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297).

In July, 1986, CPLR 214-c was enacted by the legislature which created a new rule for determining the accrual date of the statute of limitations in cases of toxic torts. In order to remedy the manifold injustices caused by the application of the exposure based statute of limitations, CPLR 214-c was enacted. Under its provision, the statute of limitation commenced to run when the injury was discovered or should have been discovered. Section 214-c(2) provides as follows:

Notwithstanding the provisions of Section 214, 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 or combination of substances, in any form, upon or within the body or upon or within property must...