Mark Dugan, Individually &c. Appellant, v. Schering Corporation et al.,
Respondents.
86 N.Y.2d 857, 658 N.E.2d 1037, 635 N.Y.S.2d 164
October 24, 1995
4 No. 212 (1995 NY Int. 219)
Decided October 24, 1995
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Ronald R. Benjamin, for Appellant.
Linda Trummer-Napolitano, for Respondents.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiff's decedent was born in Charlotte, North Carolina in 1956.
Decedent's mother took dienestrol, a synthetic estrogen drug, while
she was pregnant with decedent. In 1976, decedent was diagnosed with
clear cell adenocarcinoma of the cervix and sustained a radical
hysterectomy. No lawsuit was commenced at that time. Decedent moved to
New York shortly after the surgery and remained disease-free until
1990, when it was discovered that she had clear cell adenocarcinoma
metastatic from the primary cervical cancer, which caused her death in
January 1991. Plaintiff husband, individually and as representative of
decedent's estate, commenced this action against defendants
manufacturers of dienestrol.
The cause of action accrued in North Carolina, where decedent was
exposed in utero to dienestrol in 1955 and diagnosed with cancer
related to that exposure in 1976 (see Fleishman v Eli Lilly & Co. (62
NY2d 888). Because decedent was not a resident of New York at the time
the cause of action accrued, CPLR 202, the so-called "borrowing"
statute, requires dismissal of this suit unless it is timely under the
Statute of Limitations of both New York and North Carolina (see Antone
v General Motors Corp. (64 NY2d 20, 28). The Appellate Division
correctly concluded that this action, which was commenced in 1992, is
time-barred under both New York and North Carolina law. Plaintiff's
assertion that the cancer diagnosed in 1990 was a separate injury for
Statute of Limitations purposes was properly rejected (see Consorti v
Owens-Corning Fiberglass Corp., (decided today)).
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Ronald R. Benjamin, for Appellant.
Linda Trummer-Napolitano, for Respondents.
The order of the Appellate Division should be affirmed, with costs.
Decedent's mother took dienestrol, a synthetic estrogen drug, while she was pregnant with
Decedent moved to New York shortly after the surgery and remained disease-free until 1990,
Plaintiff husband, individually and as representative of decedent's estate, commenced this
The cause of action accrued in North Carolina, where decedent was exposed in utero to
Because decedent was not a resident of New York at the time the cause of action accrued, CPLR
The Appellate Division correctly concluded that this action, which was commenced in 1992, is
Plaintiff's assertion that the cancer diagnosed in 1990 was a separate injury for Statute of
Plaintiff's remaining contentions were not preserved for review.
Chief Judge Kaye and Judges Simons, Titone, Levine and Ciparick concur.
Judges Bellacosa and Smith took no part.
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