The e-filed documents listed by NYSCEF document numbers 8-27 were read on the motion made by the defendant, Long Island Railroad Company (the “Defendant”), for an Order, pursuant to CPLR §3212, granting it summary judgment dismissing the complaint of the plaintiff, Frank Loser (the “Plaintiff”). The Plaintiff commenced this action against the Defendant, his former employer, pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §50, et seq., contending that his workplace exposure to hazardous substances caused him to develop prostate cancer. Presently before the Court is the Defendant’s summary judgment motion, which is predicated upon the assertion that this cause is time-barred. For the following reasons, the motion is granted. I. Background The Plaintiff was employed by the Defendant from September 28, 1983 to the middle of 1996, a period of close to 13 years. He worked as an industrial engineer, maintenance engineer and junior engineer while in the Defendant’s employ. The Plaintiff’s primary duties consisted of taking measurements, recording, and documenting materials used to plan or design a layout for a new facility. The Plaintiff alleges that throughout his course of employment with the Defendant, he was exposed to diesel fumes, welding fumes, chemical solvents, creosote and benzene. The Plaintiff alleges, inter alia: (1) that at the Morris Park, Sheraton, Richmond Hill and Hillside facilities, he was exposed to diesel fumes throughout the day; (2) that at various facilities he was exposed to welding fumes; (3) that he was exposed to creosote as the result of the application thereof on rail ties; and (4) that he was exposed to chemical solvents and vapors due to a tank used to clean air conditioning condensers. The Plaintiff was diagnosed with prostate cancer on November 4, 2013. The Plaintiff retained counsel on November 30, 2016. This cause was commenced on February 15, 2018, over four years and three months after the cancer diagnosis. In essence, the Plaintiff contends that his cancer is the result of the exposure to toxic substances while he worked for the Defendant. II. Discussion Under FELA, no action shall be maintained unless commenced within three years from the date the cause of action accrued (see 45 USC §56). Compliance with 45 USC §56 is a condition precedent to an injured employee’s recovery in a FELA action (see Emmons v. Southern Pacific Transportation Company, 701 F2d 1112 [5th Cir 1983]). The failure to bring suit in a timely manner bars the claimant’s recovery and negates the employer’s liability (see id.) The Plaintiff has the burden of alleging and proving that his or her cause of action was commenced within the three-year period (Matson v. Burlington Northern Santa Fe Railroad, 240 F3d 1233 [10th Cir 2001]). The issue before this Court is when the statute of limitations accrued. In Lechowicz v. Consolidated Rail Corp., 190 AD2d 998, 998-999 [4th Dept 1993], it was held as follows with respect to accrual: Accrual is defined for Statute of Limitations purposes in terms of two components, the injury and its cause. In cases involving latent occupational diseases whose specific date of injury cannot be determined because the injury results from continual exposure to a harmful condition over a period of time, a plaintiff’s cause of action accrues when a reasonable person knows or in the exercise of reasonable diligence should know of both the injury and its governing cause. The rule imposes on an injured plaintiff an affirmative duty to investigate the potential cause of his injury upon experiencing symptoms or once the injury manifests itself. [T]o allow a plaintiff to unilaterally postpone the running of the statute of limitations by negligently failing to investigate the fact of and cause of his injury would thwart the legislative intent of 45 U.S.C. §56 [internal quotation marks and citations omitted]. In White v. Union Pacific Railroad Company, 867 F3d 997, 1001 [8th Cir 2017], the Court explained that with respect to cases involving latent injuries with symptoms that appear over time: “…the cause of action does not accrue until the employee is aware or should be aware of his condition. In addition to knowing of his condition, the employee must also know — or have reason to know — the condition’s cause. Both components require an objective inquiry into when the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause [internal quotation marks and citations omitted].” In White, id., at 1003, the trial court’s grant of summary judgment dismissing the action was affirmed because “…a claim accrues when one reasonably should know that his symptoms are fairly attributable to a workplace injury. The district court correctly concluded, as a matter of law, that White’s symptoms were serious enough in 2007 and 2008 to raise a duty to investigate. Because White did not investigate and file suit within three years of the accrual of his claim, the claim is time-barred.” It is undisputed that the Plaintiff became aware of his injury on November 4, 2013 because on said date he was diagnosed with cancer. The gravity of this condition triggered the duty of the Plaintiff to investigate the potential cause of the subject injury (see Lechowicz v. Consolidated Rail Corp., 190 AD2d 998; White v. Union Pacific Railroad Company, 867 F3d 997). As noted, this cause was commenced on February 15, 2018, over four years after the Plaintiff’s cancer diagnosis. Thus, because the Plaintiff did not investigate and file suit within three years of the accrual of his claim, this cause is time-barred (see White v. Union Pacific Railroad Company, 867 F3d 997) Furthermore, the Plaintiff knew or should have known that a potential cause of the cancer was his exposure to welding fumes, diesel fumes, solvents, benzene and creosote while he worked for the Defendant. Here, the Plaintiff testified as follows at his deposition: Q. So, tell me about the welding fumes and why you are claiming that you were around them during your time with LIRR? A. They were welding all over the place, right. One of the work stations, you crack the shells and you need to weld them. All the welding was done — mostly it was done by stick welding. So, the welding stick is made of asbestos. You put a high heat application on this, the asbestos goes into the air; the vapors. There is nothing to capture 3 these vapors. You look at OSHA regulation 1950 and it says that any vapors in the air have to be captured. They didn’t capture nothing. There was no exhaust systems in place and no vacuum systems in place. Q. We were talking about these sticks that were used in welding, right? So, the foremen and workers [at the LIRR] just told you that these sticks had asbestos? A. Yeah, that’s what they told me. With the diesels [sic] fumes. Q. How do you know that these sticks had asbestos? A. I was told by the workers. A. They just told me the welding sticks are made of asbestos. Q. Why did you believe this? A. Because you can smell the odor. You can smell it. When you put on a heat application on a heating rod, it gives off all these metal oxide gases: beryllium, cadmium, cobalt, nickel. All deadly to the lungs. Q. So, you are claiming your work with Long Island Railroad also contributed you to be around this Liquid Wrench. And you are saying it contains benzene? A Yes. Q Is that right? A Yes. Q. So, who told you that the Liquid Wrench had benzene in it, if anyone? A. You smell it. You can smell it. Q. So, no one told you that benzene was in Liquid Wrench? A. I picked up the can and I looked at the ingredients. And it says 80 percent, toxic fumes, benzene. Q. So, you picked up the can and read it on the item? A. Yeah. Yeah, I did. The foregoing excerpts from the Plaintiff’s deposition establish that he knew or should have known that his cancer could be associated with his working conditions. “After all, [the Plaintiff] knew about his cancer, and knew about the chemicals and hazards to which he had been exposed to over the years,” at the latest, on November 4, 2013, which is when he was diagnosed with cancer (see White v. BNSF Railway Company, US Dist Ct, NE, 4:17-CV-3062, Gerrard, J., 2018). The following excerpt from the Plaintiff’s affirmation summarizes his opposition: I did not know or believe, nor did I have any reason to know or believe, that the various chemicals, welding fumes, and diesel fumes I worked with throughout my entire career with LIRR were toxic and hazardous and could potentially lead to serious injury until I retained my attorneys at Marc J, Bern & Partners, and they informed me that my cancer could have been caused by the toxic chemicals, welding fumes, and diesel fumes I was exposed to while working for LIRR. The Plaintiff’s affirmation flatly contradicts his prior deposition testimony. Here, among other things, the Plaintiff admitted at this deposition that while working with the LIRR he determined, by reading a Liquid Wrench label, that the product was comprised of “80 percent, toxic fumes, benzene.” The Plaintiff’s affirmation is insufficient to defeat the Defendant’s summary judgment motion because it raises feigned issues of fact that are designed to avoid the consequences of his prior deposition testimony (see Acocal v. City of Yonkers, 179 AD3d 630 [2d Dept 2020]). III. Conclusion For the reasons stated above, it is hereby: ORDERED, the Defendant’s motion for summary judgment is granted and the Plaintiff’s complaint is dismissed. The Clerk of the Court shall mark this cause dismissed and close all appearances. This constitutes the Decision and Order of the Court. Dated: November 2, 2022
