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HERE THE STATE STATUTE OF LIMITATIONS FOR TOXIC TORTS ACTIONS WAS PRE-EMPTED BY A FEDERAL “DISCOVERY RULE” WHICH ALLOWS A TOXIC-TORT ACTION TO BE BROUGHT WITHIN ONE YEAR AFTER THE DATE PLAINTIFF KNEW OR REASONABLY SHOULD HAVE KNOWN THE CAUSE OF AN INJURY, EVEN IF MORE THAN FIVE YEARS HAVE ELAPSED SINCE THE DISCOVERY OF THE INJURY (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dowling, determined the federal “discovery rule” for toxic tort actions pre-empts the state statute of limitations. The lawsuit alleged a town landfill near a school emitted toxic materials causing illness among the school’s staff and students:

42 USC § 9658 has been deemed a “discovery rule” … , and “does not purport to create an entirely new statute of limitations framework for state toxic tort actions” … . Instead, the statute provides “a limited ‘[e]xception to State statutes’ [that] applies only if the state statute ‘provides a commencement date which is earlier than the federally required commencement date'” … . Thus, in New York, where suit was not brought within three years of the discovery-of-injury date as provided by CPLR 214-c(2), the primary effect of 42 USC § 9658 is to allow a plaintiff to bring suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury … . * * *

… [W]ith respect to those plaintiffs in this action who did not bring suit within three years of the discovery of their alleged injuries (see CPLR 214-c[2]), 42 USC § 9658 applies to allow those plaintiffs to bring suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury … . Klaus v Town of Brookhaven, 2026 NY Slip Op 03669, Second Dept 6-10-26

Practice Point: Here the state statute of limitations for toxic tort cases was pre-empted by a federal “discovery rule” which allows suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury.

 

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