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Brenda Cornell, Plaintiff-Appellant v. 360 West 51st Street Realty

March 6, 2012

BRENDA CORNELL, PLAINTIFF-APPELLANT, --
v.
360 WEST 51ST STREET REALTY, LLC, ET AL., DEFENDANTS, 360 W. 51ST STREET CORP., ET AL., DEFENDANTS-RESPONDENTS.



Plaintiff appeals from an order of the Supreme Court, New York County (Marcy S. Friedman, J.), entered January 13, 2010, which, inter alia, granted the motion of defendants 360 W. 51st Street Corp. and Geoffrey Shotwell for summary judgment dismissing the complaint as them.

The opinion of the court was delivered by: Manzanet-daniels, J.

Cornell v 360 W. 51st St. Realty, LLC

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 6, 2012

Richard T. Andrias, J.P.

David B, Saxe James M. Catterson Sheila Abdus-Salaam Sallie Manzanet-Daniels, JJ.

[And a Third-Party Action]

The motion court incorrectly interpreted our ruling in Fraser v 301-52 Townhouse Corp. (57 AD3d 416 [2008], appeal dismissed 12 NY3d 847 [2009]), as setting forth a categorical rule requiring dismissal of plaintiff's toxic mold claim due to failure meet the standard of scientific reliability set forth in Frye v United States (293 F 1013 [DC Cir 1923]). In Fraser, another case involving injuries arising out of exposure to toxic mold, we affirmed dismissal of the plaintiff's personal injury claim because the plaintiff's submissions failed to raise a triable issue of fact. We never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments. Indeed, this Court was careful to limit its holding in Fraser, explicitly stating, "We stress that our holding does not set forth any general rule that dampness and mold can never be considered the cause of a disease, only that such causation has not been demonstrated by the evidence presented by plaintiffs here" (57 AD3d at 418).

The motion court erred in finding that plaintiff's proof was not "strong enough to constitute a causal relationship," or that the methodologies used to evaluate her condition failed to meet the Frye standard. The focus of the Frye inquiry "should not be upon how widespread [a] theory's acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for [an] expert's views" (Marsh v Smyth, 12 AD3d 307, 312 [2004, Saxe, J., concurring]). Even the dissent does not dispute that plaintiff's theory of causation finds some support in the scientific literature *fn1 (compare Lara v New York City Health & Hosps. Corp., 305 AD2d 106, 106 [2003] [complete absence of any clinical data or formal studies supporting expert's theory that a precipitous delivery, without significant bleeding, could give rise to cerebral palsy arising six months after birth; trial court noted that expert "could not point to a reported case and could not point to a medical writing that set forth his theory in even general terms"])[FN2]. Since plaintiff's expert's opinions relating plaintiff's condition to the mold infestation find "some support in existing data, studies [and] literature" (Marsh, 12 AD3d at 313), namely, studies that have found a statistically significant relationship between mold and various respiratory maladies, the Frye standard is satisfied.

Plaintiff has lived in the subject apartment since 1997. The apartment is located directly above the basement area of the building. Plaintiff testified that she had occasion to walk through the public areas of the basement throughout her tenancy and described the area as damp, musty, and harboring bugs and mice. Floods in the summer of 2002 and 2003 resulted in water damage in the basement stairwell and on the walls of the basement. During the summer of 2003, a steam pipe broke in plaintiff's apartment, releasing steam. In July 2003, after the pipe broke and water leaked in the basement, plaintiff noticed a small amount of mold in her bathroom. Plaintiff testified that when she entered the bathroom she began to feel ill, experiencing a body rash, shortness of breath, fatigue, disorientation and headaches. She testified that the landlord placed a dehumidifier in the bathroom and advised her to wash the area with bleach. Plaintiff did so and her symptoms disappeared.

During the course of plaintiff's tenancy, on or about September 5, 2003, 360 West 51st Street Realty, LLC [FN3] purchased the building from defendants-respondents 360 West 51st Street Corp. and Geoffrey Shotwell. On October 1, 2003, the new owner began renovations in the basement. On the day debris removal commenced, plaintiff experienced dizziness, chest tightness, congestion, shortness of breath, a rash, swollen eyes and a metallic taste in her mouth. Despite allergy medicines prescribed by her doctor, plaintiff's symptoms only subsided when she left the premises for a period of time.

On October 7, 2003, plaintiff left the apartment due to difficulty breathing. In November 2003, plaintiff informed defendant landlord that she was unable to live in the apartment due to the ongoing renovation work and was withholding rent for the month of November. Plaintiff moved in with a friend and never again slept in the apartment.

360 West 51st Street Realty commenced a summary nonpayment proceeding against plaintiff in the Civil Court. Plaintiff answered and asserted counterclaims for, inter alia, constructive eviction and breach of the warranty of habitability. Following a 17-day trial, the Civil Court found in plaintiff's favor, awarding her a 100% abatement for the months of October 2003 through April 2004, as well as a 20% abatement in July 2003 when the pipe broke in plaintiff's apartment and plaintiff first noticed mold and experienced physical symptoms.

At the Civil Court trial, plaintiff's experts testified that the damp conditions in the basement had created the ideal environment for growth of fungus, and that the contractors disturbed years of spores and dust when they cleaned out the basement. Plaintiff's witnesses theorized that a hazardous suspension of these particles moved up a dumbwaiter shaft and through cracks in the floor, entering plaintiff's apartment and contaminating the space.

Lawrence B. Malloy, an environmental investigator and consultant concerning indoor air quality and toxic materials abatement, visited the premises on November 3, 2003 and took samples. His tests confirmed the presence of molds including aspergillus/penicillium, stachybotrys and chaetoium. Mr. Malloy noted that stachybotrys cannot exist without a continuous source of water and opined that there is no acceptable indoor level of the mold.

Dr. Chin S. Yang, a microbiologist, testified that samples collected in March 2004 from plaintiff's apartment showed contamination from aspergillus/penicillium, stachybotrys, chaetoium and paecilomyces verioti. Dr. Yang stated that stachybotrys and chaetoium are excellent indicators of water damage and opined, based on the combinations and different species ...


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