                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521308
________________________________

LESLIE MALONE et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

COURT WEST DEVELOPERS, INC.,
                    Respondent,
                    et al.,
                    Defendant.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


      Hach & Rose, LLP, New York City (Robert F. Garnsey of
counsel), for appellants.

      Levene Gouldin & Thompson, LLP, Binghamton (Cynthia
Manchester of counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from an order of the Supreme Court (Tait, J.),
entered March 13, 2015 in Broome County, which granted a motion
by defendant Court West Developers, Inc. for summary judgment
dismissing the complaint against it.

      Beginning in January 2002 and continuing until
approximately June 2003, plaintiff Leslie Malone (hereinafter
plaintiff) worked at a bank branch located in a building owned by
defendant Court West Developers, Inc. (hereinafter defendant).
                              -2-                521308

Plaintiff1 commenced an action on September 26, 2005, alleging
that, while working at the branch, he was exposed to mold
contamination in the building that caused personal injuries in
the form of asthma and permanent allergies. Defendant thereafter
moved for summary judgment dismissing the complaint on the ground
that it was not timely commenced. Supreme Court granted the
motion, finding that plaintiff was aware of the primary symptoms
of his injuries more than three years prior to the commencement
of the action. Plaintiff appeals, and we reverse.

      As an initial matter, in order to establish its entitlement
to summary judgment dismissing the complaint on the basis of
statute of limitations, defendant was required to show, at a
minimum, that plaintiff's alleged exposure to a toxic substance
did not occur within three years of the commencement of the
action (see generally Germantown Cent. School Dist. v Clark,
Clark, Millis & Gilson, 100 NY2d 202, 206 [2003]). If defendant
exposed or continued to expose plaintiff to a toxic substance
within three years of the commencement of the action, plaintiff
could not have discovered any resulting injuries from such
exposure at a time that would be barred by CPLR 214-c (2). Given
that a plaintiff cannot discover the injurious effects of
exposure to a toxic substance prior to that exposure occurring,
and considering defendant's concession that plaintiff continued
to be exposed to the mold at a time less than three years prior
to the commencement of the action, defendant is not entitled to
summary judgment dismissing the complaint on statute of
limitations grounds.

      Turning to the allegedly injurious exposure taking place
more than three years prior to the commencement of the action, we
find that defendant did not prove as a matter of law that
plaintiff should have discovered his allergy and asthma
conditions at a time that is barred by CPLR 214-c (2). Although


    1
        Although initially there were additional plaintiffs, who
were all named as appellants in the notice of appeal, they have
all since discontinued their claims. Further, it appears that
the action was discontinued as to defendant C.T. Male Associates,
P.C.
                              -3-                  521308

plaintiff exhibited some symptoms, including skin and eye
irritation and tightness in the throat, in the spring and summer
of 2002, plaintiff also explained that such symptoms ceased when
he would leave the building at the end of his shifts. Further,
plaintiff averred that he did not seek medical treatment for
these symptoms, miss work as a result of the symptoms or file a
workers' compensation claim until late October 2002. Viewing the
evidence in the light most favorable to plaintiff, the symptoms
that plaintiff exhibited more than three years prior to the
commencement of the action were too intermittent and
inconsequential to trigger the running of the statute of
limitations pursuant to CPLR 214-c (2) (see Castiglione v E.A.
Morse & Co., Inc., 22 AD3d 934, 935 [2005]; Rosner v Mira, Inc.,
16 AD3d 277, 278 [2005]; Cabrera v Picker Intl., 2 AD3d 308,
308-309 [2003]; Johnson v Exxon Corp., 258 AD2d 946, 685 [1999];
compare Scheidel v A.C. & S., Inc., 258 AD2d 751, 753 [1999], lv
denied 93 NY2d 809 [1999]). Accordingly, defendant's motion for
summary judgment dismissing the complaint should have been
denied.

     Garry, Lynch, Devine and Clark, JJ., concur.



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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
