Embarrassment May Extend Statute of Limitations

Normally, the discovery rule allows the statute of limitations to start to run when a person knows or should have known of the injury. However, in a case in New York, a man was allowed to be added as a plaintiff three years after the statute of limitations had run because he never told his attorney about his treatment for emotional distress because he was too embarrassed to discuss his treatment.

The original case involved a breach of contract filed by a masonry company against the general contractors. The case was filed in 2001 and alleges that the subcontractor was delayed in performing the work at a museum due to defendants’ mismanagement of the project causing damages to the masonry firm of over $500,000.

In addition, the plaintiff company alleged causes of action in trade defamation, libel and slander per se. Plaintiff contends that the employees of defendants created an extremely hostile work environment by harassing plaintiff company, continually making derogatory remarks about the company’s Italian heritage.

Anthony Fazio is an officer in plaintiff’s corporation. He alleged he suffered emotional distress as a result of defendants’ actions and has been treated by a psychiatrist since May 2000. However, he did not inform his attorney of his complaints or treatment until 2004 when the attorney filed to amend the complaint to include him individually as an additional plaintiff. Mr. Fazio said he did not inform his attorney because he was embarrassed that he was being treated for a psychological condition. He says he has been diagnosed with adjustment disorder with mixed anxiety and depressed mood caused by ethnic slurs directed at him on the jobsite by defendants.

The Albany Supreme Court allowed Mr. Fazio to be added as an individual plaintiff. The court found that his injury related back to the earlier claims by the company for hostile work environment and discrimination. Thus, the court reasoned, defendants should not be surprised by the addition of Mr. Fazio as a plaintiff. Moreover, the court found that the delay in Mr. Fazio’s coming forward was “reasonable.”

Fazio Masonry v. Barry, Bette and Led Duke, Inc. et. al., Supreme Court, Albany County, New York, No. 196-01, slip opinion Dec. 14, 2004.