Traditional statutes of limitations begin to run when a cause of action first could have been maintained by the plaintiff. Yet when the wrongful act and the injury do not occur simultaneously, a complex problem arises: when does the cause of action accrue? This is a relevant problem is various toxic tort lawsuits. There are various responses to the question of when the cause of action accrues: (1) when the wrongful act occurs, (2) when the plaintiff is injured, (3) when the plaintiff discovers his injury, and (4) when the plaintiff discovers the connection between the injury and the defendant's conduct. To allow plaintiffs suffering from latent injuries to recover, it is essential that New York adopt a time-of-discovery rule of accrual. In fact, a majority of state and federal courts have adopted the time-of-discovery rule. In Martin, the New York Court of Appeals, was reluctant to adopt this accrual method and, therefore, only extended the time-of-discovery rule to cases of malfunctioning medical implants. However, the court has already extended a number of exceptions to the strict accrual rule; it should, instead, create a judge-made rule of time-of-discovery in order to provide justice to those suffering from latent diseases.
Steven L. White,
Toward a Time-of-Discovery Rule for the Statute of Limitations In Latent Injury Cases In New York State ,
13 Fordham Urb. L.J. 113
Available at: http://ir.lawnet.fordham.edu/ulj/vol13/iss1/5