Millerv.Amerada Hess Corp.

Appellate Division of the Supreme Court of New York, First DepartmentOct 31, 2000
276 A.D.2d 447 (N.Y. App. Div. 2000)
276 A.D.2d 447715 N.Y.S.2d 392

October 31, 2000.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered June 24, 1999, which granted defendants-respondents' motions and cross motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Joseph Kelly Carley, for plaintiff-appellant.

Before: Nardelli, J.P., Williams, Mazzarelli, Andrias, JJ.


Summary judgment was properly granted, since here, as in Miller v. Akronchem Corp., (Appeal No. 2122) decided simultaneously herewith, there was no eyewitness testimony placing the decedent in a specific area at a specific time, or placing an identifiable defendant's product in the same area at the same time (cf., Dollas v. W.R. Grace Co., 225 A.D.2d 319, 320), and also, as in Miller, the motion court did not violate plaintiff's rights as a summary judgment opponent. In addition, the motion court correctly held that plaintiff's "survivor" claims against the maritime defendants were time-barred (see, Santiago v. Lykes Bros. S.S. Co., 986 F.2d 423, 426). The "cause of action accrues when a reasonable person knows or in the exercise of reasonable diligence should know of both the injury and its governing cause", and "an injured plaintiff [has] an affirmative duty to investigate the potential cause of his injury upon experiencing symptoms or once the injury manifests itself" (see, Lechowicz v. Consolidated Rail Corp., 190 A.D.2d 998, 999). A reasonable person in decedent's position would have suspected that his leukemia "could have been" work-related (see, Corcoran v. New York Power Auth., 202 F.3d 530, 544, cert denied ___ U.S. ___, 120 S.Ct. 1959), and a reasonable person in the decedent's circumstances would have made some sort of further inquiry. Here, the decedent made no inquiry at all and, accordingly, the accrual question was properly decided, as a matter of law, in defendants' favor.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.