                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    521580
________________________________

LINDA WELLS,
                    Appellant,
     v

3M COMPANY, Formerly Known as
   MINNESOTA MINING AND                     MEMORANDUM AND ORDER
   MANUFACTURING CO., et al.,
                    Defendants,
      and

GENUINE PARTS COMPANY et al.,
                    Respondents.
________________________________


Calendar Date:   February 17, 2016

Before:   McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.

                             __________


      Levy Konigsberg LLP, New York City (Brendan J. Tully of
counsel), for appellant.

      Barclay Damon, LLP, Buffalo (Mark T. Whitford of counsel),
for respondents.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Aulisi, J.),
entered November 7, 2014 in Schenectady County, which granted a
motion by certain defendants for summary judgment dismissing the
complaint against them.

      Plaintiff commenced this action on November 5, 2012,
seeking to recover damages for personal injuries allegedly
resulting from her exposure to various asbestos-containing
                              -2-                521580

products. In particular, plaintiff alleged that, on or about
August 5, 2010, she was diagnosed with malignant epithelial
mesothelioma (hereinafter MEM), which was caused by her secondary
exposure to asbestos through her father, who brought asbestos
dust home on his clothes while working with and around various
asbestos-containing products. After joinder of issue and
discovery, defendants Abex Corporation, Borg Warner Corporation,
Genuine Parts Company, Honeywell International Inc. and National
Automotive Parts Association moved for summary judgment
dismissing the complaint against them as time-barred pursuant to
CPLR 214-c (2). During the pendency of their motion, all moving
defendants, except Genuine Parts Company and National Automotive
Parts Association (hereinafter collectively referred to as
defendants), withdrew their applications, apparently having
settled with plaintiff. Supreme Court granted defendants' motion
and dismissed the complaint. Plaintiff appeals, and we reverse.

      Plaintiff's claims are governed by the limitations period
set forth in CPLR 214-c (2), which states, in relevant part, that
"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." For purposes of this statute, "discovery of the
injury" occurs "'when the injured party discovers the primary
condition on which the claim is based'" (Castiglione v E.A. Morse
& Co., Inc., 22 AD3d 934, 934 [2005], quoting Matter of New York
County DES Litig., 89 NY2d 506, 509 [1997]), which "necessarily
contemplates something less than full awareness that one has been
damaged as a result of exposure to a particular toxic substance"
(Whitney v Agway Inc., 238 AD2d 782, 784 [1997] [internal
quotation marks and citation omitted]). "[A] plaintiff must be
considered to have discovered such an injury when he or she is
actually diagnosed as suffering from a particular disease, even
though unaware of its cause" (Sweeney v General Print., 210 AD2d
865, 866 [1994], lv denied 85 NY2d 808 [1995]; see Matter of New
York County DES Litig., 89 NY2d at 514 n 4). Finally, "separate
and distinct disease[s] . . . may constitute different injuries,
                              -3-                521580

each with its own time of discovery" (Sweeney v General Print.,
210 AD2d at 866; see Griffin v Garratt-Callahan Co., 74 F3d 36,
40 [2d Cir 1996]; see also Bimbo v Chromalloy Am. Corp., 226 AD2d
812, 814 [1996]).

      Having moved for summary judgment dismissing the complaint
pursuant to CPLR 214-c (2), defendants were required to establish
that plaintiff's injury accrued at a time that is barred by that
provision (see Swift v New York Med. Coll., 25 AD3d 686, 687
[2006]). Consistent with the aforementioned legal rules,
defendants would meet that burden through proof establishing that
plaintiff discovered or should have discovered that she suffered
from the primary condition upon which her claim is based, MEM, or
a disease indistinct from MEM, more than three years prior to the
commencement of the action. Defendants submitted expert evidence
in the form of a sworn affidavit of a pathologist.1 According to
the pathologist, he examined plaintiff's treating and medical
records and a single slide from 2011,2 and, as a result,
concluded that plaintiff had the same tumor in 2011 that had been
discovered in 2003. Despite the fact that plaintiff's claim is
premised on a single disease, MEM, the pathologist's affidavit
does not mention that disease.3 Further, 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


    1
        Notably, this expert affidavit was initially submitted
with reply papers. Nonetheless, this apparent deficiency was
cured by the fact that Supreme Court allowed plaintiff to submit
papers in surreply (see Hoffman v Kessler, 28 AD3d 718, 719
[2006]; Ioele v Wal-Mart Stores, 290 AD2d 614, 615 [2002]).
    2
        The pathologist acknowledged that he had "limited"
materials to review in regard to plaintiff's recent condition.
    3
        Accordingly, defendants submitted an expert affidavit
that only addressed diseases that plaintiff had not alleged were
the basis of her claim.
                              -4-                521580

indicating what the symptoms of MEM are in order to permit a
comparison of the symptoms to the proof regarding plaintiff's
medical history.

      Although the pathologist does not offer an opinion as to
what disease plaintiff suffers from, he does aver that, based on
the initial discovery of a tumor, various physicians identified
plaintiff as suffering from a variety of conditions, including
"[well differentiated papillary mesothelioma], diffuse peritoneal
mesothelioma, peritoneal mesothelioma and even well
differentiated diffuse peritoneal mesothelioma." Again, however,
the pathologist provides no guidance as to whether these diseases
are related to MEM or whether an individual who receives any of
the aforementioned diagnoses ought to discover that he or she
also or instead suffers from MEM.

      Turning to the remainder of defendants' submissions, we
recognize that they establish that plaintiff understood herself
to suffer from well differentiated papillary mesothelioma
sometime approximate to 2003. That fact, however, does not
support the conclusion that either plaintiff did not also suffer
from MEM at a later point or that, if she did, MEM was an
indistinct disease from well differentiated papillary
mesothelioma. Otherwise, defendants' submissions do not
unambiguously or uniformly establish that MEM is not a separate
and distinct disease from any of those with which plaintiff had
previously been diagnosed. Accordingly, viewing the proof in the
light most favorable to plaintiff and granting her the benefit of
every reasonable inference (see Cusson v Hillier Group, Inc., 130
AD3d 1397, 1399 [2015]), defendants' submissions failed to
establish that there are no genuine issues of material fact as to
whether plaintiff's claim is timely pursuant to CPLR 214-c (2)
(see Golod v La Roche, 964 F Supp 841, 852 [SD NY 1997]).
Accordingly, defendants are not entitled to summary judgment
dismissing the complaint. The remaining arguments are academic
and/or without merit.

     Egan Jr., Rose and Lynch, JJ., concur.
                              -5-                  521580

      ORDERED that the order is reversed, on the law, with costs,
and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
