Magidson v Otterman

Magidson v Otterman 2008 NY Slip Op 09646 [57 AD3d 264] December 9, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Peggy Magidson, Appellant,
v
Harry Otterman et al., Respondents, et al., Defendant.

—[*1] Beck & Beck, LLC, New York (Kenneth A. Beck of counsel), for appellant.

Epstein, Harms & McDonald, New York (Michael A. Buffa of counsel), for Harry Otterman and Oxford 41-41 Owners Corp., respondents.

Harris Beach PLLC, New York (Steven J. Rice of counsel), for Cascade Water Services, Inc., respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered February 16, 2007, which granted the motion by defendant Cascade and cross motion by defendants Otterman and Oxford to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff alleges injury caused by exposure to toxic substances in her apartment. Her claim accrued at the latest in the fall of 1991, when she acknowledges having become aware of her injury. The statute of limitations thus expired in late 1994, prior to the commencement of this action in January 1995 (CPLR 214-c; see Martin v 159 W. 80 St. Corp., 3 AD3d 439 [2004]). The argument that plaintiff's claim did not accrue until March 2003, based on the January 2008 affidavit of her treating physician, which is dehors the record, has not been preserved for appellate review. Were we to consider it, we would find it without merit.

Plaintiff's arguments concerning an order of April 25, 2006 are not properly before this [*2]Court because she never filed an appeal from that order, and the time for taking an appeal has long since expired. We have considered her other claims and find them without merit as well. Concur—Tom, J.P., Gonzalez, Nardelli, Moskowitz and Renwick, JJ.