Contrary to popular belief, the time within which you must bring a mold exposure (or any other toxic exposure) claim starts to run from the time you discover that you are injured or ill - not from the time you realize the cause for your illness.

And, unfortunately for some children, they've just learned this lesson the hard way.

In Matter of Diaz v. City of New York, the children claimed that they suffered personal injuries due to their exposure to mold, peeling lead paint, and asbestos in their New York City school, but, according to papers their attorneys filed with the Court, they only learned that their illnesses were secondary to this exposure much later than they realized that they were ill, and well after their time to file a Notice of Claim against New York City had expired. (As a condition precedent to filing suit against New York City, New York's General Municipal Law Section 50-e requires that the City be provided with written notice of all tort claims within 90 days of the occurrence. For more on this topic, please see "The Most Critical Mistake to Avoid When Suing a New York Municipality").

Nevertheless, citing a litany of statutory and case law, the Court held that the childrens' personal injury and mold exposure claims must be dismissed as a matter of law, stating:

"[A] plaintiff's cause of action for damages resulting from exposure to toxic substances, where as here, starts to run from the date the plaintiff begins to suffer the manifestations and symptoms of his or her physical condition, that is, when the injury is apparent (CPLR 214-c[3]; see Annunziato v. City of New York, 224 AD2d 31 [1996]). The timeliness of petitioners' personal injury claims, therefore, turns on when petitioners discovered or reasonably should have discovered their injuries, not on the date of discovery of the specific cause of their injuries (see Matter of New York County DES Litig., 89 NY2d 506 [1997]).

"Contrary to petitioners' assertion, the controlling date is not ... when petitioners allegedly learned that their illnesses were caused by exposure to mold, peeling lead paint, and asbestos in the school, but rather the date when each petitioner first became aware of the manifestations or symptoms of his or her respective illness is determinative for statute of limitations purposes (see e.g. Searle v. City of New Rochelle, 293 AD2d 735 [2002])."

The moral of this story is painfully obvious: if you think you or your children may be suffering from exposure-related injuries, you have to move on it - quickly.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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