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CPLR 3211 and 3212 …cont

Three of the eight officers allege a discrete episode within the applicable limitations period; one officer alleges a discrete episode within the limitations period, which exacerbated a prior hearing loss resulting from long time exposure to firearm noise occurring outside the limitations period; and the remaining officers claim that they gradually became aware of hearing loss over the course of many years of firing range practice.

It is undisputed that defendant Mine supplied the “Noisefoe Mark IV” to the New York City Police Department for use as safety equipment against ear injury at firing ranges between 1982 and 1989. The hearing protectors supplied by Mine had a noise reduction rating of 23, meaning that based on continuous noise, the use of the hearing protector would reduce noise levels by 23 decibels. The plaintiffs contend that the “Noisefoe Mark IV” was inadequate.

Each of the individual police officers contends that he suffered hearing loss as a result of exposure to the noise of gunfire at New York City Police Department firing ranges. Each plaintiff generally underwent firearms training twice each year. Some of the plaintiffs assert that they are unable to pinpoint an exact time or accident which allegedly resulted in a loss of hearing. For example, plaintiff Pepitone claims he sustained a gradual hearing loss after an unspecified discrete accident. Pepitone’s complaint alleges that between the years 1973 and 1992, plaintiff was regularly exposed to the sound of gunfire. On March 23, 1991, plaintiff served a notice of claim for an alleged hearing loss resulting from exposure to gunfire noise.

With respect to defendant Mine, Pepitone’s complaint alleges that Mine knew that its “Noisefoe Mark IV, Ear Muffs” did not provide adequate safety from the sound of gunfire. In his examination before trial (EBT) testimony, plaintiff Pepitone testified that his ear popped at some unspecified time after being at the firing range; that his hearing loss was gradual; and that he did not ascribe the hearing loss to exposure to gunfire until he saw a poster in a precinct station suggesting that hearing loss could be attributable to work conditions. After he had seen the poster, he consulted his attorneys before seeking medical attention.

Plaintiffs Parisi and Sblendido do not allege a gradual loss of hearing due to prolonged exposure to noise. Plaintiffs Parisi and Sblendido argue that their hearing losses were caused by specific shooting range incidents which occurred on March 17, 1992, and March 19, 1992. These plaintiffs each submit an affidavit in which each claims that he experienced a sudden cracking or ringing sound in his ears during firearms training, and that his hearing loss was caused by the exposure to gunfire on that specific date.

Plaintiff Hernandez, a firearms instructor, argues that his preexisting injury were exacerbated by a specific incident which occurred on September 20, 1990, when he experienced a bursting sensation in his ears during firearms instruction. Officer Hernandez was a party to Martzloff v City of New York and his claims in that case were dismissed based on timeliness.

With respect to the remaining plaintiffs, the submissions show the following: Eugene Miniero: Plaintiff Miniero was deposed on March 21, 2003. He underwent firearms training for the first time in January 1987. His hearing loss was first noticed on June 20, 1991, when leaving a firing range, when he felt a clogged feeling in his right ear. A notice of claim was filed on April 7, 1992. This action was commenced in June 1992.

Joseph T. Wilhelm: Plaintiff Wilhelm underwent his initial firearms training in 1983. He testified at his EBT that he felt heaviness in his ears when at the firing range. He began to notice a hearing loss in 1992. He filed a notice of claim on March 26, 1992. This action was commenced in June 1992.

Robert J. DePalma: Plaintiff underwent firearms training in 1975. He felt ringing in his ears on every occasion at which he underwent training, i.e., every six months. In 1992 he began to have difficulty hearing, and sought medical attention. A notice of claim was filed on June 4, 1992. This action was commenced in July 1992.

To Be Cont….

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