Rothstein v. Tennessee Gas Pipeline Co.

• Decision Date: 03 October 1994
• Citation: 616 N.Y.S.2d 902,204 A.D.2d 39
• Parties: Rhoda Garber ROTHSTEIN, etc., Appellant, v. TENNESSEE GAS PIPELINE COMPANY, etc., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 902

616 N.Y.S.2d 902

204 A.D.2d 39

Rhoda Garber ROTHSTEIN, etc., Appellant, v. TENNESSEE GAS PIPELINE COMPANY, etc., et al., Respondents et al., Defendants.

Supreme Court, Appellate Division Second Department.

Oct. 3, 1994.

Laurence H. Pearson, New York City (Steven E. Angstreich, Michael Coren, and Amy R. Krouk, Philadelphia, PA [Levy, Angstreich, Finney, Baldante, Mann & Burkett, P.C.], of counsel), for appellant.

Dechert, Price & Rhoads, New York City (Norbert F. Bergholtz, Frank J. O'Hara, Owen D. Kalt, and Fulton, Duncombe & Rowe [Joseph T.C. Hart], of counsel), for respondents.

Before O'BRIEN, J.P., and SANTUCCI, ALTMAN, KRAUSMAN and FLORIO, JJ.

ALTMAN, Justice.

In 1986 the Legislature enacted a series of tort reforms including CPLR 214-c which adopted a discovery rule for determining the accrual date for a cause of action to recover damages for the latent effects of exposure to any harmful substance. At issue on this appeal is the applicability of CPLR 214-c to an action seeking recovery for an injury which allegedly manifested itself in 1988, but was caused by exposure to an x-ray dye some 40 years earlier. We conclude that the date-of-discovery rule is applicable and the personal injury causes of action are not time barred.

In 1948 or 1949, a radioactive x-ray contrast dye known as Thorotrast was administered to Ari Rothstein, who was then approximately 10 years old. The state of his health was unremarkable until October 1988 when he began experiencing severe abdominal pain. An MRI and CAT-scan suggested that Mr. Rothstein may have developed a hepatoma or malignancy of the liver. He was admitted to the hospital on December 5, 1988, with complaints of severe pain and a diagnosis of internal bleeding. The following day, during exploratory surgery, Mr. Rothstein died from massive internal bleeding. At that time, the existence of cancer was conclusively diagnosed.

In September 1990, Rhoda Garber Rothstein, the decedent's wife, commenced an action against Tennessee Gas Pipeline Company (hereinafter Tennessee), American Cyanamid Company (hereinafter American) and other known manufacturers of Thorotrast or their successors in interest alleging, inter alia, that her husband's cancer was caused by the administration of the dye. The verified complaint includes causes of action for negligence, strict products liability, wrongful death and breach of warranty. Tennessee and American successfully moved to dismiss the complaint pursuant to CPLR 3211(a)(5), contending that the applicable three-year Statute of Limitations began to run when the Thorotrast was administered and, consequently, had expired decades before the complaint was served.

Prior to 1986, New York law provided that a cause of action for personal injuries caused by a toxic or other harmful substance accrued upon exposure to the substance without regard to the date on which the injury was discovered (see, Matter of Steinhardt v. Johns-Manville Corp., 54 N.Y.2d 1008, 446 N.Y.S.2d 244, 430 N.E.2d 1297, cert. denied 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840; Thornton v. Roosevelt Hosp., 47 N.Y.2d 780, 417 N.Y.S.2d 920, 391 N.E.2d 1002). The 1986 legislation remedied the inequity of this long-standing rule by adopting a discovery rule for determining the accrual date of a cause of action based on the latent effects of exposure to any substance (L.1986, ch. 682, § 2, adding CPLR 214-c). A separate revival statute, not made part of the CPLR, revived for one year actions based on exposure to five specified substances which were time-barred as of July 30, 1986, the effective date of the statute, or which had previously been dismissed solely because the Statute of Limitations had expired (L.1986, ch. 682, §§ 4, 12).

CPLR 214-c provides, in relevant part:

"2. 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 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.

* * * * * *

"6. This section shall be applicable to acts, omissions or failures occurring prior to, on or after July first, nineteen hundred eighty-six, except that this section shall not be applicable to any act, omission or failure:

(a) which occurred prior to July first, nineteen hundred eighty-six, and

(b) which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date, and

(c) an action for which was or would have been barred because the applicable period of limitation had expired prior to such date."

The statute was specifically made applicable to all actions commenced on or after its effective date of July 30, 1986 (L.1986, ch. 682, § 12).

In granting the motion to dismiss, the Supreme Court concluded that, because CPLR 214-c instituted a rule for future application (see, Hymowitz v. Lilly & Co., 73 N.Y.2d 487, 514, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338), it did not apply to the plaintiff's causes of action which were based on an exposure in 1948 or 1949. The revival statute was not applicable because Thorotrast was not one of the five enumerated substances. The court further held that CPLR 214-c(6) was an interim measure which applied the discovery rule to transition cases only, cases where the exposure occurred prior to July 30, 1986, but the cause of action was not yet time barred on that date. To construe CPLR 214-c as reviving all actions which were time barred as of July 30, 1986, the court concluded, would render the revival statute meaningless.

We disagree with the Supreme Court's narrow interpretation of section 214-c. When interpreting a statute, a court should attempt to effectuate the intent of the Legislature (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 92[a]; Eaton v. New York City Conciliation & Appeals Bd., 56 N.Y.2d 340, 345, 452 N.Y.S.2d 358, 437 N.E.2d 1115). Where the language of a statute is clear and unambiguous, the legislative intent may be ascertained from that language and the statute should be construed to give effect to the ordinary meaning of the words used (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 92[b], 94; Eaton v. New York City Conciliation & Appeals Bd., supra, at 345, 452 N.Y.S.2d 358, 437 N.E.2d 1115; Prego v. City of New York, 147 A.D.2d 165, 170, 541 N.Y.S.2d 995). If the statute is remedial in nature, it should be liberally construed to advance its purpose (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 321; Prego v. City of New York, supra, at 171, 541 N.Y.S.2d 995).

CPLR 214-c was explicitly made applicable to actions which were commenced on or after its effective date. The opening phrase of subdivision 2, "[n]otwithstanding the provisions of section 214", introduces a new concept of accrual independent of the traditional limitations of CPLR 214. Subdivision 2 changes the accrual date from the date of exposure to the date when the injury was discovered or, with reasonable diligence, should have been discovered. There is no reference to the date of exposure. Giving this language its clear meaning, the statute is applicable to any action commenced after July 30, 1986, where the discovery post-dates the statute, regardless of the date of exposure. The statute therefore established a "prospective only discovery rule" for future application (see, Hymowitz v. Lilly & Co., supra, 73 N.Y.2d, at 515, 541 N.Y.S.2d 941, 539 N.E.2d 1069). It did not create a prospective exposure rule.

Subdivision 6 supports that conclusion by specifically providing that CPLR 214-c is applicable to acts, omissions, or failures occurring prior to July 1, 1986. It then sets forth a three-pronged exception to the general rule of applicability enunciated in the statute. The date-of-discovery rule is not applicable where: (1) the act, omission or failure occurred prior to July 1, 1986, (2) the date of discovery was prior to July 1, 1986, and (3) the action was or would have been barred because the applicable Statute of Limitations had expired prior to that date. For the exception to apply, all three criteria must be satisfied (see, Silverman v. North Shore Energy Savers, 202 A.D.2d 571, 609 N.Y.S.2d 250; 1 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 214-c.06).

There is no language in CPLR 214-c limiting the applicability of subdivision 6 to transition cases, as found by the Supreme Court. Nor is there any language in the statute from which such an intention can be implied. Had the Legislature intended to limit the statute in that manner, it would have done so (see, Prego v. City of New York, supra, 147 A.D.2d, at 172, 541 N.Y.S.2d 995; Di Marco v. Hudson Val. Blood Servs., 147 A.D.2d 156, 161, 542 N.Y.S.2d 521). Rather, subdivision 6 saves those transition cases where the discovery pre-dated the statute but the cause of action was not time barred as of July 1, 1986, and the action was commenced within three years of discovery but not within three years of exposure. The prospective discovery rule would otherwise have been inapplicable to such cases. At the same time, subdivision 6 explicitly excludes those cases where discovery of the injury pre-dates the statute and the cause of action was also time barred.

Application of CPLR 214-c to a case where both the discovery and the commencement of the action post-dates the statute regardless of the date of exposure is in accord with both the literal reading of the statute and its remedial purpose (see, 1 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 214-c.06). The statute was intended to afford relief to...