| Ward v Lincoln Elec. Co. |
| 2014 NY Slip Op 02668 [116 AD3d 558] |
| April 17, 2014 |
| Appellate Division, First Department |
| Henry A. Ward, Respondent, v Lincoln ElectricCompany, Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered September 11,2013, which denied defendant's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment accordingly.
In this action for injuries related to the latent effect of exposure to a toxic substance,the statute of limitations began to run when plaintiff discovered the primary condition onwhich his claim is based, and not when he discovered the causation connection to thetoxic substance (Matter of New York County DES Litig., 89 NY2d 506 [1997]).
Plaintiff's uncertified medical records may be considered since plaintiff does notdispute their accuracy or veracity (Carlton v St. Barnabas Hosp., 91 AD3d 561 [1st Dept2012]; CPLR 4518 [c]). He only disputes the inferences to be drawn from the records asto the date on which his condition was sufficiently apparent to start the limitations periodrunning (see CPLR 214-c [2]).
In any event, plaintiff's own deposition testimony establishes that he had persistent,severe, progressively worsening symptoms that limited his physical activity, for which hesought regular, ongoing medical treatment, as far back as at least 2007, and that, by 2008,necessitated an invasive procedure that confirmed a diagnosis of pulmonary fibrosis.These dates are corroborated by his workers' compensation claim. Contrary to plaintiff'scontention, his symptoms were not "too isolated or inconsequential" to start thelimitations period running before January 30, 2009 (see Cabrera v Picker Intl., 2 AD3d 308, 309 [1st Dept2003] [internal [*2]quotation marks omitted]). Theybecame apparent by, at the latest, the latter half of 2008, more than three years before thisaction was commenced, on January 30, 2012 (see Matter of New York County DESLitig., 89 NY2d at 514). Concur—Friedman, J.P., Sweeny, Andrias, Gischeand Clark, JJ.