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LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED.

The Third Department determined an action by a 28-year-old woman alleging lead paint poisoning was time-barred. Plaintiff was first diagnosed with high levels of lead in 1990. The statute of limitations runs from when the symptoms are first discovered, not when the cause of the symptoms is learned:

… [D]efendants’ submissions were sufficient to demonstrate that plaintiff was cognizant of her claimed injuries, or, at a minimum, reasonably should have been, such that the action is barred by the statute of limitations. Although CPLR 214-c (2) permits an action to proceed within three years from the “discovery of the injury,” this means the “discover[y of] the primary condition on which the claim is based” … , or, put differently, “the discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” … . Here, accepting that lead was the causative harmful substance, plaintiff was aware of her injuries, which first manifested when she started public education in 1990 and, according to plaintiff, continued throughout her school years. Although plaintiff argues that her action is timely because she first discovered that she suffered lead poisoning when her attorney sent a solicitation letter to her mother in 2012, we disagree. Where, as here, a plaintiff is seeking the benefit of the discovery rule applicable to toxic torts, the statute runs from the date the condition or symptom is discovered or reasonably should have been discovered, not the discovery of the specific cause of the condition or symptom … . Vasilatos v Dzamba, 2017 NY Slip Op 01615, 3rd Dept 3-2-17

NEGLIGENCE (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)/TOXIC TORTS (LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED/LEAD POISONING (STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED)

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CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED. MINERAL RIGHTS INCLUDE THE RIGHT TO REMOVE SAND AND GRAVEL.