On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, O'Brien and Scalera. The opinion of the court was delivered by King, P.J.A.D.
[209 NJSuper Page 245] Plaintiffs, Hyman Seckular,*fn1 and his wife, Ruth, appeal from the Law Division judge's denial of their motion to voluntarily dismiss the complaint without prejudice and from his grant of
defendant's motion for summary judgment. The complaint was dismissed as time-barred under Florida substantive law and its borrowing statute which the judge thought dictated that the New York statute of limitations should be applied to preclude plaintiff's suit for damages sustained as a result of exposure to asbestos. Plaintiff contends that the Law Division judge wrongfully exercised his discretion in denying his motion to voluntarily dismiss the complaint and incorrectly interpreted the applicable Florida law on the time-bar issue.
The case arises in this factual background. Plaintiff came to Brooklyn, New York from Poland in 1920. He lived in Brooklyn until 1979 when he and his wife moved to Delray Beach, Florida where they bought a condominium. Plaintiff's only exposure to asbestos occurred sometime between 1941 and 1945 when he worked as a welder at Todd Shipyards in Brooklyn.
When plaintiff moved to Florida in 1979, he registered to vote, obtained a driver's license, and worked part-time selling shoes. He began experiencing a constant cough and difficulty breathing in August 1982. He consulted five doctors in Florida but none diagnosed his condition as mesothelioma. The first doctor gave him cough syrup. After he suffered an attack in which he could not breathe, he was admitted to the hospital for tests and surgery was performed. Although not clear to us, it appears that plaintiff's right lung was removed in Florida because of a cancerous condition.
Despite the surgery, plaintiff's coughing continued. Four months after surgery, which occurred around October 1982, plaintiff consulted a Dr. Stein. He had grown weaker and was losing his appetite. Stein recommended that he see a pulmonary specialist, Dr. Falkowitz, who sent him for tests and prescribed medication for asthmatic bronchitis. After seeing Falkowitz, plaintiff came north.
Plaintiff and his wife came to live with their daughter and son-in-law in Marlboro, New Jersey during the summer of 1983. Plaintiff and his wife retained ownership of the Florida condominium
and hoped to return there in the winter. Plaintiff said that he could no longer live in Florida year-round because of the heat and humidity; he could not "combat the outdoors . . . with half a lung." While staying with his daughter, plaintiff's condition was diagnosed as mesothelioma by Dr. Teirstein at Mount Sinai Hospital in New York City in May 1983.
The present suit was instituted in August 1983. It is unclear on this record when plaintiff died or when he moved back to Florida. The only information we have comes from his daughter's affidavit where she stated that
Shortly before my father died, my parents returned to Florida against my wishes. . . . My mother has decided to remain in Florida.
This case presents a rather complex choice-of-law question. New Jersey, as the forum, is asked to decide whether New York or Florida law applies to a cause of action asserted by a now-deceased Florida domiciliary who was exposed to asbestos in New York during World War II. New Jersey has no real interest in the litigation. The ...