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Comprehensive Environmental Response…cont

The City also cites Wills v Amerada Hess Corp. in support of dismissal. However, like Parker, Wills is distinguishable from this case on the law and the facts. In fact, Wills is similar only in that Dr. Bidanset appeared as an expert toxicologist in both cases, and that the plaintiffs in both cases developed cancer. In Wills, the decedent was a seaman on one of the defendant’s ships. He died of squamous cell carcinoma of the head and neck, which the plaintiff claimed was caused by exposure to carcinogens which were present on the ship. The District Court was critical of Dr. Bidanset for first espousing a dose-response relationship between the decedent’s exposure to hyrdocarbons and his development of squamous cell carcinoma of the head and neck, and then failing to quantify exposure levels or otherwise substantiate the causal threshold or connection. Notably, at his deposition in Wills, Dr. Bidanset admitted that smoking and drinking are the largest risk factors for squamous cell carcinoma, and that the decedent was a heavy cigarette smoker and consumed moderate amounts of alcohol. After a hearing under Daubert, the District Court determined to exclude Dr. Bidanset’s opinions. It granted defendant summary judgment, subject to the right of the plaintiff to file an affidavit seeking additional discovery relevant to her theory of causation.

By contrast to Wills, this action concerns a number of plaintiffs, all of whom live near the Pelham Bay landfill, who developed either acute lymphoid leukemia or Hodgkin’s disease. The record contains epidemiological reports from both plaintiffs and the City, with differing conclusions about whether the incidence of cancer was high in the area closest to the landfill. Further, there is significant evidence that these plaintiffs were exposed to a variety of carcinogens, over an extended period of time, through a variety of exposure pathways. It is not surprising that plaintiffs’ toxicologists did not present a specific dose-response threshold of any particular carcinogen to support their opinions that plaintiffs’ cancer was caused by exposure to the landfill. Neither Dr. Bidanset nor plaintiffs’ other expert toxicologist purported to establish a dose-response relationship between the large number of carcinogens in the landfill for over a decade and plaintiffs’ cancers. Instead, plaintiffs have proffered a combination of epidemiological and toxicological reports to support the theory that their extended exposure to hazardous levels of numerous carcinogens in this particular landfill caused their cancers. Moreover, Dr. Trainor, one of plaintiffs’ personal injury experts, identified at least four pathways by which plaintiffs, and other individuals in proximity to the landfill, could have been exposed to those carcinogens.

In fact, both plaintiffs and the City rely on epidemiological studies in support of their positions, and the parties even share reliance on the opinion of a mutual expert, Dr. Neugebauer. To the extent that the City challenges the methodology of Dr. Neugebauer’s study, which found an increased incidence of acute lymphoid leukemia in the population in closest proximity to the landfill, and the failure to account for racial distribution, these issues are properly the subject of cross-examination at trial, as they go to credibility and to the weight to be given to the evidence. Similarly, plaintiffs’ experts are properly subject to cross-examination, and the substance of their reports a proper subject for questioning. However, as neither the epidemiological personal injury nor the toxicological submissions concern novel science, Frye’s concerns are not implicated and no pretrial hearing was required.

The City finally argues that the claims of all of the plaintiffs, except Amanda Arisio, Antonio Carollo, Rufino Irizarry, Michelle Phillips, and Kevin Simpson, should be dismissed as untimely. Plaintiffs conceded that the claims of LeisaArisio, Sandra Irizarry, Joan Kohn, Rosalie Nessen, Patricia Nonnon, Nicholas Parmigiano, Rosemarie Phillips, Theresa Sebastian and Susan Zeitlin were untimely, and that these claims were appropriately dismissed. Also, plaintiffs conceded that Angela DaBenigno’s claims: (1) for loss of services; and (2) on behalf of Patricia Ann DaBenigno and Joanne Marie DaBenigno, for wrongful death, were subject to dismissal for failure to establish a causal connection to the landfill.

However, in opposition to the City’s motion, plaintiffs asserted that Christopher Angelilli’s claim was timely, as he was born on July 17, 1971 and diagnosed with childhood leukemia in July 1980. He filed his notice of claim on January 18, 1990, which plaintiffs mistakenly asserted was three months, rather than six months, after his eighteenth birthday. Counsel affirmed that this plaintiff filed his claim within one year of the discovery of the cause of his leukemia under CPLR 214-c.

The accrual date of a claim to recover damages for personal injuries purportedly arising out of exposure to toxic substances is determined by the discovery rule prescribed in CPLR 214-c, which as relevant to claims against a municipality.

The City argues that Angelilli’s action is time-barred because his suit was not commenced until January 15, 1991, more than one year and 90 days after his 18th birthday on July 17, 1989. Angelilli responds that his complaint was timely filed pursuant to CPLR 214-c (4) within one year of his first learning that the landfill was the cause of his cancer. However, he fails to allege, as required by that section, that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the statute of limitations on October 17, 1990.

Because the remaining plaintiffs in this case have presented proof that they learned, within five years after their illnesses had been diagnosed, that harmful substances at the landfill were responsible for their illnesses, their claims are not time-barred.

Accordingly, the order of the Supreme Court, Bronx County, entered October 16, 2003, which, in actions for personal injuries and wrongful death allegedly caused by exposure to toxic substances in a landfill, inter alia, denied defendant City of New York’s motion to dismiss all of the complaints for lack of merit and certain of the complaints as time-barred, should be modified, on the law, to dismiss, with leave to replead, plaintiff Angelilli’s complaint, and otherwise affirmed, without costs.

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