London Fischer LLP Obtains Dismissal of Toxic Tort and Contamination Claim

May 14, 2009

London Fischer LLP partners, Virginia Futterman, at the trial court level, and Perry Kreidman, on appeal, secured the dismissal of a toxic tort and mold contamination claim based upon the expiration of the three year New York statute of limitations.  Both the trial court, New York Supreme, and the appellate court, the First Department, dismissed the plaintiff’s causes of action for personal injury and property damage flowing from toxic conditions and mold in her apartment on the ground that she filed suit after the expiration of the three year statute of limitation set forth in CPLR 214-C (2). The First Department only allowed the plaintiff’s limited claim for the breach of the warranty of habitability to proceed at the trial court level, but confined that claim to an 11 month period in her leasehold. 

Of note, the main issue in the trial court and on appeal was the plaintiff’s effort to overcome the three year statute of limitations by invoking the doctrine of equitable estoppel. Under that principle, a defendant may be barred from relying upon a statute of limitations defense if it engaged in affirmative wrongful conduct that caused a plaintiff to refrain from timely commencing her action. However, both the lower court and the appellate court recognized and accepted the extensive record developed during discovery indicating that the plaintiff had been well aware of the allegedly toxic conditions in her apartment and her related medical conditions in sufficient time to file her action, but nevertheless delayed through no fault or misconduct of the defendant in commencing suit.

The significance of the appellate decision is that it reflects that a defendant’s right to assert a statute of limitations defense can be overcome based upon what the court described as the extraordinary remedy of equitable estoppel only if there is proof that the defendant’s statements or actions entail “affirmative wrongdoing, fraud or intentional misconduct that could reasonably have induced plaintiff to refrain plaintiff from filing suit before the expiration of the statutory period….” A plaintiff will therefore have a difficult time avoiding the expiration of the statute of limitations simply by arguing that the defendant caused it to delay filing suit. The plaintiff, instead, will need definitive proof of active misconduct by the defendant leading to the decision not to bring an action in a timely fashion.

Wiesel v. 310 East 46 LLC, 2009 NY Slip OP. 03849, May 14, 2009, Appellate Division, First Department

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