Karp v. Liggett & Myers Tobacco Co. , 40 A.D.2d 634 ( 1972 )

Order, Supreme Court, New York County, entered on January 6,1972, permitting amendment of the complaint to add a cause for wrongful death, unanimously affirmed, without costs and without disbursements. Order of said court entered on January 19,1972, unanimously modified, on the law, to grant summary judgment dismissing the first cause of action of the amended complaint, and otherwise affirmed, without costs and without disbursements. Considering the two decisions in inverse order, the first cause based upon negligence is time-barred because of the passage of more than three years from injury (onset of cancer) to commencement of suit. Dismissal of that cause removes it as antecedent to the added wrongful death cause, which now rests solely upon the cause asserted for breach of warranty. The cause based on warranty has not come under attack on this appeal, and the two causes read together present a viable complaint. Concur — Markewich, J. P., Murphy, McNally, Steuer and Capozzoli, JJ.