Sweener v. Saint-Gobain Performance Plastics Corporation et al

MOTION to Dismiss for Failure to State a Claim

N.D.N.Y.June 30, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ANN SWEENER, Plaintiff, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORP., and HONEYWELL INTERNATIONAL INC. f/k/a ALLIED- SIGNAL INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-0532 (LEK/DJS) NOTICE OF MOTION TO DISMISS THE COMPLAINT PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in Support of Defendants’ Motion to Dismiss dated June 30, 2017, and upon all pleadings and proceedings heretofore had herein, the undersigned will move this Court before U.S. District Court Judge Lawrence E. Kahn, at the U.S. District Court for the Northern District of New York, located at 445 Broadway, Albany, New York on the 4th day of August, at 9:30 a.m. for an Order pursuant to Fed. R. Civ. P. 12(b)(6) dismissing with prejudice the Plaintiff’s claims against Defendants Saint- Gobain Performance Plastics Corporation and Honeywell International Inc. Dated: June 30, 2017 Respectfully submitted, /s/ Michael Koenig_________________ /s/ Dale Desnoyers______________________ Michael Koenig (507425) Christopher Fenlon (516392) HINCKLEY ALLEN 30 S. Pearl Street, Suite 901 Albany, NY 12207 Tel: (518) 396-3100 Fax: (518) 396-3101 mkoenig@hinckleyallen.com cfenlon@hinckleyallen.com Dale Desnoyers (103795) ALLEN & DESNOYERS LLP 90 State Street, Suite 1009 Albany, NY 12207 Telephone: (518) 426-2288 Facsimile: (518) 426-2299 dale@allendesnoyers.com Case 1:17-cv-00532-LEK-DJS Document 13 Filed 06/30/17 Page 1 of 2 2 Sheila L. Birnbaum (505978) Mark S. Cheffo (302113) Douglas E. Fleming, III (519941) Patrick Curran (519940) Lincoln Davis Wilson (520260) QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Ave. New York, New York 10010 Tel: 212-849-7000 Fax: 212-849-7100 sheilabirnbaum@quinnemanuel.com markcheffo@quinnemanuel.com douglasfleming@quinnemanuel.com patrickcurran@quinnemanuel.com lincolnwilson@quinnemanuel.com Attorneys for Defendant Saint-Gobain Performance Plastics Corporation Michael D. Daneker (107356) Elissa J. Preheim (107355) Allyson Himelfarb (107357) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Michael.Daneker@apks.com Elissa.Preheim@apks.com Allyson.Himelfarb@apks.com Attorneys for Defendant Honeywell International Inc. Case 1:17-cv-00532-LEK-DJS Document 13 Filed 06/30/17 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ANN SWEENER, Plaintiff, v. SAINT-GOBAIN PERFORMANCE PLASTICS CORP., and HONEYWELL INTERNATIONAL INC. f/k/a ALLIED-SIGNAL INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:17-cv-0532 (LEK/DJS) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 1 of 21 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 DISMISSAL UNDER THE STATUTE OF LIMITATIONS .........................................................2 ARGUMENT ...................................................................................................................................3 I. PLAINTIFF’S CLAIMS ARE TIME-BARRED UNDER CPLR 214-C ............................3 A. The Statute of Limitations Has Run Under CPLR 214-c(2) ....................................4 B. Plaintiff’s Allegations Show That CPLR 214-c(4) Does Not Apply .......................5 C. The Continuing Wrong Doctrine And Equitable Estoppel Do Not Apply ..............6 II. CPLR 214-F CANNOT CONSTITUTIONALLY REVIVE PLAINTIFF’S CLAIMS WITHOUT VIOLATING DUE PROCESS ........................................................8 A. Construing CPLR 214-f as a Revival Statute Cannot Meet the Gallewski Standard .................................................................................................................10 B. Construing CPLR 214-f as a Revival Statute Cannot Meet the Robinson Standard .................................................................................................................12 CONCLUSION ..............................................................................................................................16 Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 2 of 21 ii TABLE OF AUTHORITIES Page Cases ACE Sec. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581 (2015) .......................................................................................................... 2, 14 Ackerman v. Price Waterhouse, 84 N.Y.2d 535 (1994) ........................................................................................................ 14, 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................... 2 Boos v. Runyon, 201 F.3d 178 (2d Cir. 2000)....................................................................................................... 7 Boreali v. Axelrod, 71 N.Y.2d 1 (1987) .................................................................................................................. 14 Braunscheidel v. Stryker Corp., 2013 WL 1337013 (N.D.N.Y. 2013) ......................................................................................... 4 Campanella v. Aurora Loan Servicing, 2011 WL 3798787 (N.D.N.Y. Aug. 25, 2011) .......................................................................... 7 Carroll v. Rondout Yacht Basin, Inc., 2014 WL 4966124 (N.D.N.Y. 2014) ......................................................................................... 7 Connolly v. Cnty. of Nassau, 2013 WL 5583571 (Sup. Ct. Nassau Cnty. 2013) ..................................................................... 5 Donoghue v. Am. Skiing Co., 155 F. Supp. 2d 70 (S.D.N.Y. 2001).......................................................................................... 7 DVL, Inc. v. Gen. Elec. Co., 811 F. Supp. 2d 579 (N.D.NY. 2010) ........................................................................................ 6 DVL, Inc. v. Niagara Mohawk Power Corp., 490 F. App’x 378 (2d Cir. 2012) ............................................................................................... 6 Ellul v. Congregation of Christian Bros., 774 F.3d 791 (2d Cir. 2014)....................................................................................................... 2 Gallewski v. H. Hentz & Co., 301 N.Y. 164 (1950) ...................................................................................................... 9, 10, 11 Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 3 of 21 iii Grant v. Guidotti, 66 A.D.2d 545 (2d Dep’t 1979) ............................................................................................... 14 Hopkins v. Lincoln Trust Co., 233 N.Y. 213 (1922) .................................................................................................................. 9 Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487 (1989) .............................................................................................................. 11 Jensen v. Gen. Elec. Co., 623 N.E.2d 547 (1993)............................................................................................................... 6 Levine v. Whalen, 39 N.Y.2d 510 (1976) .............................................................................................................. 13 Liff v. Schildkrout, 49 N.Y.2d 622 (1980) .............................................................................................................. 14 MBI Int’l Holdings Inc. v. Barclays Bank PLC, --- N.Y.S.3d ---, 2017 WL 2365824 (1st Dep’t 2017) ............................................................... 7 McCann v. Walsh Const. Co., 123 N.Y.S.2d 509 (3d Dept. 1953) .......................................................................................... 11 McCormick v. Favreau, 82 A.D.3d 1537 (3d Dep’t 2011) ............................................................................................... 7 Michael v. Ametelco, Inc., 568 N.Y.S.2d 1003 (Sup. Ct. Monroe Cnty. 1991) ................................................................... 5 In re New York Cnty. DES Litig., 89 N.Y.2d 506 (1997) ................................................................................................................ 4 Packer Coll. Inst. v. Univ. of State of N.Y., 298 N.Y. 184 (1948) ................................................................................................................ 13 Rego Props. Corp. v. Fin. Adm’r, 424 N.Y.S.2d 621 (Sup. Ct. Queens Cnty. 1980) .............................................................. 13, 15 Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924) ...................................................................................................... 9, 11, 12 Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 90 (1995) ............................................................................................................ 3, 12 Suffolk Cnty. Water Auth. v. Dow Chem. Co., 121 A.D.3d 50 (2d Dep’t 2014) ................................................................................................. 6 Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 4 of 21 iv Vasilatos v. Dzamba, 148 A.D.3d 1275 (3d Dep’t 2017) ............................................................................................. 6 Wallace Wood Props. v. Wood, 117 F. Supp. 3d 493 (S.D.N.Y. 2015).................................................................................... 2, 7 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F. Supp. 3d 466 (S.D.N.Y. 2014).................................................................................... 5, 11 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58 (2d Cir. 2017).......................................................................................................... 9 In the Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 28 N.Y.3d 1159 (2017) ............................................................................................................ 10 Statutes and Rules N.Y. Civ. Prac. L. & R. 214-c................................................................................................ passim N.Y. Civ. Prac. L. & R. 214-f ................................................................................................ passim 6 NYCRR § 375-2.7…………………………………………………………………………......13 42 U.S.C. § 9605…………………………………………………………………………………13 Fed. R. Civ. P. 12(b)(6)................................................................................................................... 4 Constitutional Provisions N.Y. Const.art. I, § 6 ....................................................................................................................... 9 Additional Authorities Office of the Governor, Governor Cuomo Announces Immediate State Action Plan to Address Contamination in Hoosick Falls, https://www.governor.ny.gov/news/governor-cuomo-announces-immediate-state- action-plan-address-contamination-hoosick-falls. (Jan. 27, 2016) ............................................. 8 EPA Proposes to Add Saint-Gobain Performance Plastics Site in Hoosick Falls, N.Y. to the Federal Superfund List, https://www.epa.gov/newsreleases/corrected-epa-proposes-add-saint-gobain-performance- plastics-site-hoosick-falls-ny......................................................................................................8 Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 5 of 21 Defendants Saint-Gobain Performance Plastics Corporation and Honeywell International Inc. respectfully submit this memorandum of law in support of their motion to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for relief. PRELIMINARY STATEMENT This personal injury action is one of several cases pending in this Court concerning the alleged presence of perfluorooctanoic acid (“PFOA”) in groundwater in Hoosick Falls, New York. Plaintiff filed this action on May 15, 2017, alleging that, as a result of her exposure to PFOA, she developed uterine cancer, which was diagnosed on August 25, 2010. (Compl. ¶¶ 63, 69.) Plaintiff alleges that May 20, 2016 was the date she became aware that her cancer was allegedly caused by exposure to PFOA when test results confirmed the presence of PFOA in her blood. (Id. ¶ 67.) Plaintiff alleges that she “could not have reasonably discovered” her blood levels of PFOA prior to this time. (Id. ¶ 73.) As set forth below, based on these allegations, Plaintiff’s claims are time-barred on the face of the Complaint and should therefore be dismissed. First, Plaintiff’s claims are time-barred under CPLR 214-c, which she states governs her claims. (Id. ¶ 73.) That statute of limitations runs three years from the date Plaintiff discovered her injuries, which Plaintiff alleges here took place on August 25, 2010, making her claims time- barred as of August 25, 2013. In addition, Plaintiff is not entitled to toll the statute based on the date she discovered the alleged cause of her injuries, because CPLR 214-c permits such tolling only in cases where the cause is discovered less than five years from the injury. Here, Plaintiff specifically alleges she discovered the cause in May 2016, which is beyond the five-year period required for tolling. Finally, Plaintiff cannot toll the statute of limitations on her claims through the continuing course of conduct doctrine or equitable estoppel, since the former does not apply to CPLR 214-c and Plaintiff has not pled the latter. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 6 of 21 2 Second, Plaintiff’s claims cannot be revived under the recently enacted CPLR 214-f (which she has not even alleged applies here). CPLR 214-f provides that, for certain personal injury claims due to alleged exposure to substances contained within a federal or state superfund site, the statute of limitations runs three years from the date the alleged site at issue is declared a superfund site under state or federal law. Construing that statute to revive Plaintiff’s time-barred claims would violate the due process protections of the New York State Constitution. To allow expired claims to be revived at some uncertain point in the future based on the administrative determinations of state and federal environmental agencies—rather than anything concerning the plaintiff’s or defendant’s conduct—would work a serious injustice to Defendants and is not a reasonable exercise of legislative power. Thus, for the foregoing and following reasons, Plaintiff’s claims should be dismissed with prejudice as time-barred. DISMISSAL UNDER THE STATUTE OF LIMITATIONS To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint fails to state a claim for relief that is plausible on its face where the allegations on the face of the complaint show that its claims are barred by the statute of limitations. Ellul v. Congregation of Christian Bros., 774 F.3d 791, 798, n. 12 (2d Cir. 2014); Wallace Wood Props. v. Wood, 117 F. Supp. 3d 493 (S.D.N.Y. 2015) (granting motion to dismiss complaint as untimely). Pre-answer dismissal may be particularly appropriate in light of the purpose of statutes of limitations, which “not only save litigants from defending stale claims, but also express a societal interest or public policy of giving repose to human affairs.” ACE Sec. Corp. v. DB Structured Prods., Inc., 25 N.Y.3d 581, 593 (2015) (quotation marks and citation omitted). Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 7 of 21 3 ARGUMENT I. PLAINTIFF’S CLAIMS ARE TIME-BARRED UNDER CPLR 214-C Plaintiff states in her Complaint that the timeliness of her claims is governed by CPLR 214-c (Compl. ¶ 73), which the Legislature enacted to ameliorate the perceived harshness of New York’s “long-standing rule in toxic tort cases” that an injury triggering the running of the statute of limitations occurs upon exposure. Rothstein v. Tennessee Gas Pipeline Co., 87 N.Y.2d 90, 93 (1995). CPLR 214-c “replace[d] the exposure rule with a balanced and more equitable discovery accrual mechanism.” Id. That mechanism provides as follows, in pertinent part: 2. … [T]he three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property must be commenced 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. … 4. Notwithstanding the provisions of subdivision[] two …, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; [subject to certain additional requirements]. CPLR 214-c. Thus, under subsection (2), the three-year statute of limitations runs from the date the injury caused by exposure is discovered or should have been discovered, rather than from the date the exposure or discovery of exposure occurs. CPLR 214-c(2). In addition, under subsection (4), the statute of limitations may be extended to run one year from the date the cause of the injury is discovered or should have been discovered, provided that the discovery of the cause is less than five years from the discovery of the injury. CPLR 214-c(4). Yet, as set forth Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 8 of 21 4 below, the face of the Complaint shows that neither of these rules renders Plaintiff’s claims timely. First, she has brought suit nearly seven years after she alleges she discovered her injury. Second, because she alleges she learned of the cause more than five years from that date, the additional tolling provided by subsection (4) does not apply. Finally, Plaintiff cannot toll the statute of limitations through the continuing course of conduct doctrine or other tolling doctrines, since the former does not apply to CPLR 214-c and Plaintiff has not pled any facts in support of the latter. Her claims must therefore be dismissed under Rule 12(b)(6) due to failure to state a claim for relief. A. The Statute of Limitations Has Run Under CPLR 214-c(2) Plaintiff’s claims are barred under CPLR 214-c(2) because she filed her Complaint more than three years after she discovered her injury, i.e., when she was diagnosed with cancer. CPLR 214-c was enacted in 1986 “as part of a larger ‘tort reform’ package” that was specifically designed to address the statute of limitations “problem that arises when the plaintiff has discernible bodily symptoms but the toxic etiology of those symptoms has not yet been discovered.” In re New York Cnty. DES Litig., 89 N.Y.2d 506, 511-12 (1997) (citation omitted). The Legislature addressed this problem by requiring a plaintiff to bring suit within three years of the date the plaintiff discovers her injury. CPLR 214-c(2). Under the statute, the “requirement does not mean that a claimant must discover the exact nature of her injury; rather, she need only discover ‘the manifestations or symptoms of the latent disease.’” Braunscheidel v. Stryker Corp., 2013 WL 1337013, at *3 (N.D.N.Y. 2013) (Kahn, J.) (quoting DES Litig., 89 N.Y.2d at 514). Indeed, “there is nothing in either the language of the statute or its history to suggest that the Legislature intended to make the running of the Statute of Limitations depend on claimants’ subjective understanding of the etiology of their conditions.” DES Litig., 89 N.Y.2d at 514-15. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 9 of 21 5 Here, Plaintiff alleges she discovered her injury on August 25, 2010 when she was diagnosed with cancer, an injury she attributes to PFOA exposure. (Compl. ¶¶ 63, 69.) A plaintiff’s allegation of the date of diagnosis constitutes sufficient discovery of the injury. See Connolly v. Cnty. of Nassau, 2013 WL 5583571, at *12 (Sup. Ct. Nassau Cnty. 2013) (“[T]here is no need to investigate when [plaintiff’s] symptoms first manifested an [] illness because the diagnosis … stands as the latest date that plaintiff can be charged with knowledge.”) Thus, accepting Plaintiff’s allegations as true, under CPLR 214-c(2) and computing the three year period from the date of discovery of the injury alleged by Plaintiff, her claims expired on August 25, 2013 at the latest. B. Plaintiff’s Allegations Show That CPLR 214-c(4) Does Not Apply Plaintiff cannot look to CLPR 214-c(4) to extend the limitations period for her claims. The Legislature included CPLR 214-c(4) in order to address situations “where fixing the date of discovery of the injury does not tell the whole story because the plaintiff, although he knows he is injured, does not know who or what caused the injury.” Michael v. Ametelco, Inc., 568 N.Y.S.2d 1003, 1007 (Sup. Ct. Monroe Cnty. 1991) (citation omitted). In situations where the plaintiff “does not know who or what caused the injury,” CPLR 214-c(4) “gives the plaintiff five years after the discovery (actual or constructive) of the injury to ascertain its cause. If he does not (or cannot) discover the etiology within five years, then he is barred by the statute of limitations.” Id. (citation and quotation marks omitted). Accordingly, CPLR 214-c(4) bars claims from being brought “more than five years from discovery of the injury.” In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F. Supp. 3d 466, 475 (S.D.N.Y. 2014) (citation omitted). Plaintiff alleges that the statute did not begin to run until the date she received her blood results, stating that she “did not discover and could not have reasonably discovered her high Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 10 of 21 6 levels of PFOA before May 20, 2016.” (Compl. ¶ 73.) However, Plaintiff alleges that she was diagnosed with cancer on August 25, 2010, and that her cancer was caused by exposure to PFOA. (Compl. ¶¶ 63, 69.) Thus, Plaintiff’s allegations make clear that Plaintiff did not discover the alleged cause of her cancer until May 20, 2016. Because that date is more than five years after Plaintiff’s discovery of her injury, she is not entitled to the additional tolling provided by CPLR 214-c(4). See Vasilatos v. Dzamba, 148 A.D.3d 1275, 1278 (3d Dep’t 2017) (CPLR 214-c(4) “extends the statute of limitations one year from the date that a plaintiff discovers the cause of the injury,” only where the cause is discovered no “more than five years after discovering the injury.”) (citations omitted). Plaintiff’s claims are thus time-barred. C. The Continuing Wrong Doctrine And Equitable Estoppel Do Not Apply Although Plaintiff states that this matter is governed by CPLR 214-c (Compl. ¶ 73), she also alleges that by “fail[ing] to disclose and active[ly] conceal[ing]” the extent of PFOA releases, Defendants have engaged in a continuing course of conduct that restarts the running of the statute of limitations. (Id. ¶ 72.) Following controlling authority from the New York Court of Appeals, this Court has rejected that contention, holding that the continuing wrong doctrine is inapplicable to cases governed by CPLR 214-c and accordingly finding environmental tort claims to be time-barred. DVL, Inc. v. Gen. Elec. Co., 811 F. Supp. 2d 579, 600 (N.D.NY. 2010) (Kahn, J.), aff’d sub nom. DVL, Inc. v. Niagara Mohawk Power Corp., 490 F. App’x 378 (2d Cir. 2012). As this Court explained, CPLR 214-c “contains ‘no continuing-wrong exception to its new comprehensive, across-the-board rules.’” Id. (quoting Jensen v. Gen. Elec. Co., 623 N.E.2d 547 (1993)). Those rules thus “displaced that common-law exception for a continuing wrong in cases where CPLR 214-c was applicable.” Suffolk Cnty. Water Auth. v. Dow Chem. Co., 121 A.D.3d 50, 59 (2d Dep’t 2014). That doctrine thus does not apply here. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 11 of 21 7 Neither is Plaintiff’s threadbare allegation of “active concealment” sufficient to invoke equitable estoppel to bar application of the statute of limitations. Applying equitable estoppel to bar a statute of limitations is “an extraordinary remedy which applies where a party is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the other. The doctrine would apply only if plaintiffs demonstrated that subsequent and specific actions by defendants somehow kept them from timely bringing suit.” McCormick v. Favreau, 82 A.D.3d 1537, 1540 (3d Dep’t 2011) (citations and quotation marks omitted). Plaintiff bears the burden of showing that she was (1) “induced by fraud, misrepresentations or deception to refrain from filing a timely action” and (2) that she “reasonably relied on defendant’s misrepresentations.” MBI Int’l Holdings Inc. v. Barclays Bank PLC, --- N.Y.S.3d ---, 2017 WL 2365824, at *6 (1st Dep’t 2017) (affirming dismissal of complaint as time-barred). Plaintiff’s bald allegation of “active concealment” (Compl. ¶ 72), without more, cannot meet this burden and is insufficient to survive a motion to dismiss. “The burden of demonstrating the appropriateness of equitable tolling … lies with the plaintiff.” Carroll v. Rondout Yacht Basin, Inc., 2014 WL 4966124, at *2 (N.D.N.Y. 2014) (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). Thus, because Plaintiff has done nothing “beyond baldly asserting that fraud took place in a conclusory manner, Plaintiff has not set forth any facts that would permit equitable tolling.” Campanella v. Aurora Loan Servicing, 2011 WL 3798787, at *2 (N.D.N.Y. Aug. 25, 2011) (Kahn, J.); see also Wallace Wood Props., 117 F. Supp. 3d at 499 (“[C]onclusory allegations of fraudulent concealment and diligence are insufficient to raise a factual issue as to the potential availability of equitable tolling.”). In order to invoke equitable tolling and survive a motion to dismiss, Plaintiff must plead facts of wrongful concealment and Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 12 of 21 8 reasonable reliance “with particularity”—pleading “one conclusory sentence” without more is “not sufficient” to meet Plaintiff’s burden. Donoghue v. Am. Skiing Co., 155 F. Supp. 2d 70, 76- 77 (S.D.N.Y. 2001) (dismissing complaint with prejudice as time-barred); Campanella, 2011 WL 3798787, at *2 (“Plaintiff must still allege facts that, if true, are sufficient to state a claim to relief that is plausible on its face, and the Court finds that he has failed to do so.”). Accordingly, by the allegations on the face of the Complaint, Plaintiff’s claims expired on August 25, 2013—three years after her cancer diagnosis—and must be dismissed as time- barred under CPLR 214-c. II. CPLR 214-F CANNOT CONSTITUTIONALLY REVIVE PLAINTIFF’S CLAIMS WITHOUT VIOLATING DUE PROCESS Although Plaintiff’s Complaint does not make any reference to CPLR 214-f, that provision does not revive Plaintiff’s claims. CPLR 214-f provides that the statute of limitations for personal injury claims due to certain alleged exposure to substances contained within a federal or state superfund site1 runs three years from the date the site was designated as such by the United States EPA or New York’s Department of Environmental Conservation (NYSDEC): Notwithstanding any provision of law to the contrary, an action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site pursuant to either Chapter 103 of Section 42 of the United States Code and/or section 27-1303 of the environmental conservation law, may be commenced by the plaintiff within the period allowed pursuant to section two hundred fourteen-c of this article or within three years of such designation of such an area as a superfund site, whichever is latest. 1 The term “superfund sites” refers to sites that the EPA or NYSDEC have evaluated and administratively designated for special clean-up funding under statutory procedures established by federal and New York law. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 13 of 21 9 CPLR 214-f. Here, NYSDEC designated certain areas of Hoosick Falls as a superfund site in 2016.2 Nothing in CPLR 214-f states that it is intended to revive expired claims like Plaintiff’s. To construe CPLR 214-f to apply retroactively and revive Plaintiff’s time-barred claims would violate the Due Process Clause of the New York State Constitution, which provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” N.Y. Const. art. I, § 6. Statutes that operate to revive time-barred claims are susceptible to due process challenges under the New York State Constitution. New York law has long recognized that “[r]evival is an extreme exercise of legislative power. The will to work it is not deduced from words of doubtful meaning. Uncertainties are resolved against consequences so drastic.” Hopkins v. Lincoln Trust Co., 233 N.Y. 213, 215 (1922) (Cardozo, J.). The issue of the particular standard that governs the constitutionality of revival statutes is currently before the New York Court of Appeals on certification from the Second Circuit. In In re World Trade Ctr. Lower Manhattan Disaster Site Litigation, the Second Circuit is considering a defendant’s constitutional challenge to a statute that expressly revived for one year time-barred personal claims for participants in the World Trade Center rescue, recovery, and cleanup operations. 846 F.3d 58, 62 (2d Cir. 2017). The district court found the statute unconstitutional under the Due Process Clause of the New York State Constitution and dismissed the claims of 2 See Office of the Governor, Governor Cuomo Announces Immediate State Action Plan to Address Contamination in Hoosick Falls (Jan. 27, 2016), https://www.governor.ny.gov/news/governor-cuomo-announces-immediate-state-action-plan- address-contamination-hoosick-falls. The EPA is currently determining whether to designate areas of Hoosick Falls as a superfund site. EPA, Press Release, EPA Proposes to Add Saint- Gobain Performance Plastics Site in Hoosick Falls, N.Y. to the Federal Superfund List at 2, available at https://www.epa.gov/newsreleases/corrected-epa-proposes-add-saint-gobain- performance-plastics-site-hoosick-falls-ny. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 14 of 21 10 the plaintiffs as untimely. On appeal, the Second Circuit observed that New York courts have applied two different standards for evaluating due process challenges to revival statutes: (1) the “serious injustice” standard under Gallewski v. H. Hentz & Co., 301 N.Y. 164, 174 (1950) and (2) the standard of “reasonableness” articulated in Robinson v. Robins Dry Dock & Repair Co., 238 N.Y. 271 (1924). In re World Trade Ctr., 846 F.3d at 69. The New York Court of Appeals accepted certification of the question of which standard controls, with briefing to be completed later this year. In the Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 28 N.Y.3d 1159, 1160 (2017). However, under either standard, CPLR 214-f cannot be construed to revive expired claims consistent with due process. A. Construing CPLR 214-f as a Revival Statute Cannot Meet the Gallewski Standard CPLR 214-f cannot meet the standard of Gallewski v. H. Hentz & Co., which holds that the Legislature may revive a personal cause of action “where the circumstances are exceptional and are such as to satisfy the court that serious injustice would result to plaintiffs not guilty of any fault if the intention of the Legislature were not effectuated.” 301 N.Y. at 174. In Gallewski, the statute at issue operated to revive claims of persons who were unable to sue due to the impact of World War II and the court found that this revival statute constituted a proper exercise of extreme legislative power. Id. at 174-75. The Court of Appeals found that the plaintiffs there—who were residents of occupied territory—were under a “practical and total inability” to commence actions in the courts “to protect and effectuate their rights.” Id. at 175. Permitting the statute of limitations “to run against their claims during the continuance of such inability would not accord with elementary notions of justice and fairness.” Id. Therefore, the court found that the case “present[ed] a situation in which revival—even if it be considered an extreme exercise of the legislative power—is entirely proper. World War II was an upheaval of Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 15 of 21 11 unparalleled magnitude.” Id. at 174. The court further noted that a court should “approach each revival statute on its individual merits, in the light of its own peculiar circumstances and setting.” Id. Unlike the plaintiffs in Gallewski, Plaintiff here was not under a “practical and total inability” to bring her claims. Id. at 175 Further, like the plaintiffs in World Trade Ctr. Litig., the “discovery rule” established by the Legislature under CPLR 214-c already “protected the Plaintiff[] here against the unjust consequences imposed by the prior statute of limitations rule, which calculated the limitations period from the date of exposure.” World Trade Ctr., 66. F. Supp. 3d. at 475.3 Because of the protections afforded to Plaintiff by CPLR 214-c—giving Plaintiff at least three and up to six years from discovery of her injury in which to bring her claims—this is not a situation where an “arbitrary application of the statute of limitations would work injustice.” McCann v. Walsh Const. Co., 123 N.Y.S.2d 509, 514 (3d Dept. 1953). And unlike the plaintiffs in Hymowitz, Plaintiff here received the protections put in place by the Legislature, and the exposure rule did not prevent her from bringing a timely action. Hymowitz, 73 N.Y.2d at 514. Therefore, neither “exceptional circumstances” nor “serious injustice” are present here, and thus CPLR 214-f fails the due process test for revival statutes under Gallewski. 3 This fact distinguishes this case from Hymowitz v. Eli Lilly and Co., 73 N.Y.2d 487 (1989), in which the New York Court of Appeals found “exceptional circumstances” under Gallewski to revive claims previously barred by the “exposure rule” and where the “discovery rule” of CPLR 214-c was unavailable to plaintiffs. See World Trade Ctr., 66 F. Supp. 3d at 476. In Hymowitz, the Legislature revived for one year causes of action for exposure to diethylstilbestrol (DES) at the same time it implemented the new discovery rules under CPLR 214-c for future application. 73 N.Y.2d at 502-04. The Court of Appeals found that “the exposure rule [had] prevented the bringing of timely actions for recovery” such that “exceptional circumstances [were] presented, [and that] an injustice ha[d] been rectified” by the limited revival of DES exposure claims. Id. at 514. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 16 of 21 12 B. Construing CPLR 214-f as a Revival Statute Cannot Meet the Robinson Standard Neither can CPLR 214-f meet the Robinson test, which considers whether there was an apparent injustice that “calls for a remedy,” and whether the Legislature’s action was “reasonable” and not “arbitrary.” Robinson, 238 N.Y. at 279-80. In Robinson, the plaintiff had applied for and began receiving compensation under the Workmen’s Compensation Act in connection with the employment-related death of her husband. Id. at 273-74. However, payments were terminated when the Supreme Court of the United States ruled that the compensation statute did not apply to her. Id. at 274. The plaintiff then brought suit against her deceased husband’s employer, but by that time the two-year statute of limitations on her claims had run, and her claims were dismissed. The Legislature thereafter enacted a statute designed to revive the plaintiff’s cause of action for one year, id. at 276, and the Court of Appeals upheld the statute against a due process challenge. The Court of Appeals found that a “situation accidentally produced by reliance on an apparently valid statute reasonably call[ed] for remedy” and thus, there was no “arbitrary deprivation by the Legislature of the rights of one party in order to confer a new right upon another party.” Id. at 279-80. Here, unlike Robinson, there are no allegations that this case presents a “situation accidentally produced by reliance on an apparently valid statute.” Id. at 279. Plaintiff here was not deprived of a remedy due to reasonable reliance on a legal procedure that was later declared invalid. In fact, at all material times Plaintiff was under the protection of the Legislature’s comprehensive “discovery rule” under CPLR 214-c, which was designed to provide “a balanced and more equitable discovery accrual mechanism.” Rothstein, 87 N.Y.2d at 93. Plaintiff was in no way “deprived of this remedy.” Robinson, 238 N.Y. at 280. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 17 of 21 13 Furthermore, CPLR 214-f violates the reasonableness standard of Robinson by keying the statute of limitations to prospective superfund designations by third-party agencies, rather than to any action or conduct of the parties. The statute replaces the “statute” of limitations, which is intended to provide closure and repose, with the “administrative law” of limitations, where the vitality of a claim depends on a decision of a federal or state environmental agency about funding of clean-up for an environmental site. Indeed, the decision of whether and when to designate a superfund site involves considerations unrelated to the risk of individual personal injury, including considerations regarding alternative funding sources, protection of natural resources, and alternative remedial programs such as state or federal brownfields programs. See, e.g., 42 U.S.C. § 9605; 6 NYCRR § 375-2.7. By delegating the legislative power to set firm limits on liability to the decision-making of administrative agencies, CPLR 214-f would allow personal injury claims that may have expired even fifty or more years ago to suddenly be revived based on decisions by EPA or NYSDEC concerning funding of clean-up. This broad delegation of sweeping discretionary authority to revive long expired claims without any governing standard is not a reasonable exercise of legislative power. To the contrary, it is constitutionally untenable.4 It is well recognized in New York that “‘[b]ecause of the constitutional provision that the legislative power of this State shall be vested in the Senate and the Assembly, the Legislature cannot pass on its law-making functions to other bodies.’” Rego Props. Corp. v. Fin. Adm’r, 424 N.Y.S.2d 621, 623 (Sup. Ct. Queens Cnty. 1980) (quoting Levine v. Whalen, 39 N.Y.2d 510, 515 (1976)) (internal citations omitted). Therefore, the Legislature may “constitutionally confer 4 Though there is legitimate question over whether CPLR 214-f is constitutional even as to non- expired claims, that question is not presented here because Plaintiff’s claims are barred under CPLR 214-c as set forth above. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 18 of 21 14 discretion upon an administrative agency only if it limits the field in which that discretion is to operate and provides standards to govern its exercise.” Id. Indeed, the Court of Appeals has found that statutes which “empower an administrative officer” to act without governing “standards or tests” to be “patently unconstitutional.” Packer Coll. Inst. v. Univ. of State of N.Y., 298 N.Y. 184, 189 (1948). Establishing statutes of limitations is a core legislative function. In New York “it is unquestioned that the periods of limitation, per se, are solely for the Legislature to decide.” Grant v. Guidotti, 66 A.D.2d 545, 560 (2d Dep’t 1979), aff’d sub nom. Liff v. Schildkrout, 49 N.Y.2d 622 (1980). Granting broad legislative authority to an administrative body violates “the oft-recited principle that the legislative branch of government cannot cede its fundamental policy-making responsibility to an administrative agency.” Boreali v. Axelrod, 71 N.Y.2d 1, 9 (1987). The need for firm governing principles is of paramount importance for statutes of limitations, which “not only save litigants from defending stale claims, but also express a societal interest or public policy of giving repose to human affairs.” ACE Sec. Corp., 25 N.Y.3d at 593 (quotation marks and citation omitted). CPLR 214-f, however, delegates this core legislative function of establishing statutes of limitations to an administrative agency, and does so without limits or standards to govern its exercise. In practice, were CPLR 214-f to revive plaintiffs’ claims, the administrative designation of a superfund site by a state or federal authority would amount to a legislative decision in which the state or federal regulatory body would choose certain claims to revive and, thereby, persons and entities to affect. “The policies underlying a Statute of Limitations— fairness to defendant and society’s interest in adjudication of viable claims not subject to the vagaries of time and memory—demand a precise accrual date that can be uniformly applied, not Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 19 of 21 15 one subject to debate or negotiation.” Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 542 (1994) (emphasis added). CPLR 214-f’s broad grant of authority violates due process by leaving the ability to bring expired claims—and the attendant obligation to defend against those expired claims—up to the uncertain functioning of state and federal regulators. Not only does CPLR 214-f leave open the possibility that claims may be revived fifty or more years from now, the statute suggests that expired claims might be revived pursuant to a state superfund designation, expire after three years, and subsequently be revived again at an unknowable time when and if EPA decides to issue its own federal superfund designation. Claims brought under CPLR 214-f would have no “precise accrual date,” but would instead leave both potential plaintiffs and defendants without any sense of when and where claims might arise. Basing “a limitations period on the potentiality of [administrative] action defies the essential premise of temporal finality embodied in Statutes of Limitations.” Ackerman, 84 N.Y.2d at 542. If CPLR 214-f is construed to revive expired claims, then “the Legislature has in violation of the state constitution delegated to administrative officials the power to determine” when claims arise in connection with “a particular piece of property.” Rego, 424 N.Y.S.2d at 623-24. When and where claims arise “will now be largely determined by the classification of property adopted by” state and federal regulators. Id. Those determinations are not guided by considerations about timeliness of claims, but rather about funding of environmental clean-up. The weighty public policies of fairness and the accuracy of adjudication, as well as the due process implications of statutes of limitations, underscore the infirmity of assigning the authority to revive claims in perpetuity to state and federal regulators without any guidance. Defendants are entitled to rely on the certainty and temporal finality prescribed by the statutory Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 20 of 21 16 structure set out in CPLR 214-c. Because construing CPLR 214-f to revive Plaintiff’s expired claims would violate the due process protections of the New York State Constitution, Plaintiff’s claims remain time-barred, and must therefore be dismissed. CONCLUSION For the foregoing reasons, the Complaint should be dismissed with prejudice in its entirety for failure to state a claim. Dated: June 30, 2017 Respectfully submitted, /s/ Michael Koenig /s/ Dale Desnoyers Michael Koenig (507425) Christopher Fenlon (516392) HINCKLEY ALLEN 30 S. Pearl Street, Suite 901 Albany, NY 12207 Tel: (518) 396-3100 Fax: (518) 396-3101 mkoenig@hinckleyallen.com cfenlon@hinckleyallen.com Sheila L. Birnbaum (505978) Mark S. Cheffo (302113) Douglas E. Fleming, III (519941) Patrick Curran (519940) Lincoln Davis Wilson (520260) QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Ave. New York, New York 10010 Tel: 212-849-7000 Fax: 212-849-7100 sheilabirnbaum@quinnemanuel.com markcheffo@quinnemanuel.com douglasfleming@quinnemanuel.com patrickcurran@quinnemanuel.com lincolnwilson@quinnemanuel.com Attorneys for Defendant Saint-Gobain Performance Plastics Corporation Dale Desnoyers (103795) ALLEN & DESNOYERS LLP 90 State Street, Suite 1009 Albany, NY 12207 Telephone: (518) 426-2288 Facsimile: (518) 426-2299 dale@allendesnoyers.com Michael D. Daneker (107356) Elissa J. Preheim (107355) Allyson Himelfarb (107357) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Michael.Daneker@apks.com Elissa.Preheim@apks.com Allyson.Himelfarb@apks.com Attorneys for Defendant Honeywell International Inc. Case 1:17-cv-00532-LEK-DJS Document 13-1 Filed 06/30/17 Page 21 of 21