New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
November 22, 2011
KATZ PARK AVENUE CORP., INSIGNIA RESIDENTIAL GROUP, INC., JOHN DOE,
JANE DOE AND ABC CORPORATION "L" THROUGH "5", INTENDING TO REFER TO ARCHITECTS,
ENGINEERS, CONTRACTORS, SUB-CONTRACTORS, ALL WHO HAVE PERFORMED OR MAY HAVE
PERFORMED REPAIR OR REMEDIATION WORK IN THE APARTMENT, RESIDENTIAL MANAGEMENT GROUP, L.L.C.
AND PRUDENTIAL DOUGLAS ELLIMAN REAL ESTATE,
Defendants, as limited by their briefs, appeal from 1) those portions of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), entered January 20, 2010, which, upon renewal, adhered to a prior order denying their motion for summary judgment dismissing plaintiff's second cause of action, and denied defendants' motion, inter alia, for summary judgment dismissing plaintiff's first, third, fifth, sixth and seventh causes of action, and 2) that portion of an order (same court and Judge), entered August 9, 2010, which, upon reargument, adhered to the aforesaid order of January 20, 2010.
Jagger v Katz Park Ave. Corp.
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 22, 2011
PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
Order (Debra Rose Samuels, J.), entered January 20, 2010, insofar as appealed from, modified by granting defendants' motion for summary judgment dismissing plaintiffs' second, sixth and seventh causes of action; as modified, order affirmed, without costs. Appeal from order (same court and Judge), entered August 9, 2010, dismissed, without costs, as academic.
The action seeks damages against defendants, the owner and managing agent of plaintiff's former residential apartment building, for injuries to her person and property allegedly resulting from extensive water penetration and/or mold contamination in her apartment unit.
Summary judgment dismissal of plaintiff's personal injury claims (second cause of action) should have been granted, since the mold measurement relied upon by plaintiff failed to satisfy the governing foundational inquiry into "whether the accepted [testing] methods were appropriately employed" (Fraser v 301-52 Townhouse Corp., 57 AD3d 416, 420 , quoting Parker v Mobil Oil Corp., 7 NY3d 434, 447 ). Notably, plaintiff's environmental expert merely collected indoor air samples on a single day, a showing insufficiently reliable to demonstrate the level of toxicity, if any, in plaintiff's apartment (see Fraser, 57 AD3d at 420).
Nor did plaintiff raise a triable issue with respect to her General Business Law § 349 claim (sixth cause of action) or her claim for negligence per se (seventh cause of action). As to the former, plaintiff's allegations of deceptive acts and practices "presented only [a] private dispute[ ] between landlords and tenants, and not consumer-oriented conduct aimed at the public at large" (Aguaiza v Vantage Props., LLC, 69 AD3d 422, 423 ). With respect to the latter, each of the statutory provisions sought to be invoked by plaintiff -- Multiple Dwelling Law § 78(1) and Real Property Law § 235-b -- sets forth a general, abstract standard of conduct, rather than a specific duty, and is an insufficient predicate to support a claim of negligence per se (see generally Sheila C. v Povich, 11 AD3d 120, 131-132 ).
We agree that defendant's moving submissions were insufficient to eliminate all triable issues as to the timeliness and/or bona fides of plaintiff's remaining causes of action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 22, 2011
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