” The issue on this appeal is whether the one-year time period for commencement of actions under the toxic tort revival statute (L 1986, ch 682, § 4) is a Statute of Limitations or a condition precedent. We hold that the time period is a Statute of Limitations and that the period may be extended by compliance with CPLR 203 (b) (5).
Plaintiff Kathleen Clark was born in 1958. She allegedly sustained serious personal injuries by reason of her in utero exposure to diethylstilbestrol (DES). This action was commenced against 11 manufacturers of DES by delivering copies of the summons and complaint to the Broome County Sheriff on July 29, 1987, and by personal service upon all of the defendants on either September 18 or 23, 1987. Following joinder of issue, several defendants moved and cross-moved for summary judgment dismissing the complaint upon numerous grounds, most of which have been resolved by the Court of Appeals decision in Hymowitz v Lilly & Co.. This appeal is from an order denying defendants’ application for summary judgment on the ground that delivery to the Sheriff did not extend the time period set forth in the revival statute.
CLARK v. ABBOTT LABS., Leagle, 1990190155AD2d35_1185, March 22, 1990.
The toxic tort revival statute provides that the claims of persons who had been injured by the latent effects of exposure to five substances, including DES, that were time barred or had been dismissed previously because the Statute of Limitations had expired are “hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act” (L 1986, ch 682, § 4). The statute took effect on July 30, 1986. The summons and complaint in this action were delivered to the Sheriff within the one-year period, and defendants were personally served within the 60-day period provided for by CPLR 203 (b) (5). Personal service upon defendants was not made, however, within the one-year period set forth in the revival statute. Defendants contend that commencement of a revived action within the one-year period is a condition precedent and that delivery to the Sheriff cannot operate to extend the one-year period. Supreme Court rejected this argument, and we affirm.” …
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