In this take-home exposure case, the plaintiff was diagnosed with malignant epithelial mesothelioma (MEM) on or about August 5, 2010 and commenced her case against various defendants on November 5, 2012. After joinder of issue and discovery, several defendants moved for, and were granted, summary judgment, arguing that the plaintiff’s action was time-barred pursuant to CPLR 214-c (2). Under this statute, “the three year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body . . . 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.”
On appeal, the lower court’s granting of summary judgment was reversed. The court was not swayed by the affidavit of defendants’ expert pathologist that stated that the plaintiff had the same tumor in 2011 as had been discovered in 2003. As the court held: ” the pathologist does not state that plaintiff only has the disease that was discovered in 2003 and, therefore, does not exclude the possibility that plaintiff later developed a separate and distinct disease. In addition, inasmuch as the pathologist failed to mention — much less opine on — MEM, there is no expert proof before us indicating what the symptoms of MEM are in order to permit a comparison of the symptoms to the proof regarding plaintiff’s medical history.”