Opinion
No. 3:94CV808 (RNC).
September 30, 1996
Richard L. Gross, Cantor Floman Russell Gross, Orange, CT, Matthew Shafner, O'Brien, Shafner, Stuart, Kelly Morris, Groton, CT, Moshe Maimon, Steven J. Phillips, Danielle Goodman, Caroline Tso, Levy, Phillips Konigsberg, New York City, for plaintiff Joan McCarson.
Peter C. Schwartz, Renee Wocl Dwyer, Gordon, Muir Foley, Hartford, CT, Dan Adams, Hildy Bowbeer, Bowman Brooke, Minneapolis, MN, for defendant Apple Computers Inc.
James H. Rotondo, Mary Beth Cardin, J. Michael Amrein, Day, Berry Howard, Hartford, CT, for defendant Olivetti Office USA, Inc.
Lynn A. Kappelman, Day, Berry Howard, Stamford, CT, Charles T. Lee, Paul, Hastings, Janofsky Walker, Stamford, CT, for defendant Unisys Corp.
ENDORSEMENT RULING AND ORDER
This is a diversity case in which the plaintiff seeks damages for repetitive stress injuries allegedly caused over time by use of keyboards manufactured by the defendants. Plaintiff, a resident of Connecticut, commenced this action in November 1992 in the Eastern District of New York. On defendants' motion, the case was transferred here in April 1994. The three defendants remaining in the action, Olivetti Office USA, Inc., Sperry Rand/Unisys Corporation and Apple Computers, Inc., have all moved for summary judgment contending that plaintiffs claims are time-barred [docs. #74, 78 and 100]. For the reasons that follow, the motions are granted.
The defendants contend that this case is governed by New York's three-year statute of limitations for personal injury claims., N.Y.Civ.Prac.L. R. § 214. In the recent case of Blanco v. American Telephone Telegraph, ___ A.D.2d ___, 646 N.Y.S.2d 99 (N.Y.App.Div. 1996), the Appellate Division held that the New York statute of limitations that applies to repetitive stress injury claims against product manufacturers is § 214. The Appellate Division also determined that a plaintiff's cause of action accrues under § 214 upon the commencement of [her] use of the allegedly defective keyboard, regardless of when [her] symptoms first manifested themselves, when a diagnosis was made, or when use was discontinued." 646 N.Y.S.2d at 104. I am persuaded that the New York Court of Appeals would reach the same conclusion as the Appellate Division in Blanco.
Plaintiff does not deny that her complaint is subject to dismissal unless it was timely filed under New York law.
Applying Blanco to the facts of this case, plaintiffs claims against the defendants are time-barred by § 214 because she began using the defendants' keyboards more than three years before she filed suit in November 1992. In her response to Olivetti's interrogatory 14, she states that she began using typewriters manufactured by Sperry Rand/Unisys in 1984 and that she began using an Apple keyboard in 1988. Plaintiff has also testified that at the time she sought treatment through the Community Health Center Plan in October 1989, she had already been working with a keyboard made by Olivetti. Plaintiff's Deposition, April 18, 1995, at 115.
Accordingly, defendants' motions for summary judgment are hereby granted.
So ordered.