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CPLR 3211 and 3212

The present action represents eight consolidated actions. Each of the plaintiffs is or has been a New York City police officer who alleges that he suffered hearing loss from a discrete episode and/or as a result of exposure to the noise of gunfire during firearms training, and that the noise protection devices provided to the officers were defective product.

Defendant City of New York moves pursuant to CPLR 3211 and 3212 for summary judgment dismissing the complaints herein on the grounds that: (1) the claims are untimely, (2) the safety equipment provided was adequate, and (3) the City’s choice of safety equipment was a discretionary, governmental act, and thus immune from injury liability.

Defendant Mine Safety Appliance Company similarly moves (by separate motions) for summary judgment dismissing the complaints of all plaintiffs, contending: (1) that the plaintiffs’ actions are time-barred; (2) that the failure to preserve the actual hearing protectors constitutes spoliation warranting dismissal of the actions; (3) that the plaintiffs have not established that defendant Mine manufactured the specific safety devices used by them; (4) that plaintiffs cannot establish a prima facie case in products liability; and (5) that the complaint of plaintiff Carroll should be dismissed for failure to prosecute, and the complaint of plaintiff Hernandez should be dismissed based on estoppel.

The issues presented by these actions, which have been commenced by eight police officers (each of whom claim a hearing injury as a result of negligent exposure to gunshot noise), are troubling, especially since they may require determinations which may be inconsistent and unfair.

Despite a remedial amendment to the CPLR and subsequent bright line decisions interpreting this legislation, the lines of demarcation are still not lucid; and, in this court’s opinion, the issues presented herein are still open and unresolved.

CPLR 214-c provides in relevant part: Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

It should be noted that the above CPLR provision provides no further definition for the word substance, and the Court of Appeals has held that the statute only applies to toxic substances. Although normal sound is benign and therefore not encompassed by CPLR 214-c, can sound nevertheless be considered a substance, and if so, should a toxic quantity of such harmful sound be considered within the purview of the remedial CPLR amendment? If CPLR 214-c is held not to apply to toxic sound, should the negligent infliction of repetitive stress on the eardrum caused by toxic sound, come within the exception created by the Court of Appeals in Blanco for repetitive stress injuries? Based upon the lack of sufficient expert testing and the underdeveloped circumstances in this case, the accident court declines to follow Martzloff and Casson at this time.

If you sustained injuries as a result of accident, contact Stephen Bilkis and Associates. Our Bronx County Personal Injury Lawyers, who are experienced and experts on the field, will handle the case.

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