Dugan v. Schering Corp.

86 N.Y.2d 857 (1995)

658 N.E.2d 1037

635 N.Y.S.2d 164

Mark Dugan, Individually and as Representative of The Estate of Kimberly D. Dugan, Deceased, Appellant, v. Schering Corporation et al., Respondents.

Court of Appeals of the State of New York.

Argued September 13, 1995.

Decided October 24, 1995.

Ronald R. Benjamin, Binghamton, for appellant.

Henry R. Simon, White Plains (Linda Trummer-Napolitano of counsel), for respondents.

Chief Judge KAYE and Judges SIMONS, TITONE, LEVINE and CIPARICK concur; Judges BELLACOSA and SMITH taking no part.

*858MEMORANDUM.

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 *859 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 Lilly & Co., 62 N.Y.2d 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 N.Y.2d 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 Fiberglas Corp., 86 N.Y.2d 449 [decided today]).

Plaintiff's remaining contentions were not preserved for review.

Order affirmed, with costs, in a memorandum.