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Wayne Cleghorne, et al v. the City of New York

October 4, 2012

WAYNE CLEGHORNE, ET AL., PLAINTIFFS-RESPONDENTS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS.



Cleghorne v City of New York

Decided on October 4, 2012

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.

Tom, J.P., Friedman, Catterson, Acosta, Freedman, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2011, which, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this action arising from a teacher's alleged exposure to allergens at school, the record reflects the following: Wayne Cleghorne was a school teacher employed by the New School for Arts and Sciences (New School). On August 28, 2000, the New School relocated to 730 Bryant Avenue in the Bronx. Shortly after the move, Cleghorne claims she developed respiratory problems while cleaning her classroom and storage area at the new location. In November of 2000, Cleghorne was diagnosed with asthma. On November 30, 2000, her family practitioner diagnosed her with bronchitis, and she did not work for approximately a month.

Cleghorne returned to work in early January 2001, but had an asthma attack at the New School on February 2, 2001, and was hospitalized for a week. Cleghorne and her husband filed a notice of claim against the City alleging that her asthma was caused by conditions at the New School and seeking damages.

At the General Municipal Law § 50-h examination on September 26, 2001, Cleghorne stated that while cleaning her classroom and a storage room in the new building, she developed a persistent cough, and that subsequently her condition deteriorated. She described the events leading to her admission to the hospital, and stated that after discharge, she contacted a physician for asthma treatment. He referred her to an allergist. Cleghorne stated that she received weekly medical treatment following the February 1, 2001 incident, suffered many relapses, and was occasionally confined to home for "[a] few months" and bed "[m]any times."

On October 15, 2001, plaintiffs commenced this action against the Board of Education, the City of New York, and two principals of the New School individually, for negligence, public and private nuisance, violation of OSHA regulations, and violations of the New York City Administrative Code and other statutes. On August 6, 2010, defendants moved for summary judgment dismissing the complaint. Defendants argued that Cleghorne did not develop asthma as a result of her exposure to toxins at the New School, but rather that she had an existing asthmatic condition. In support of their motion, defendants provided the expert report of Dr. Jack J. Adler, a pulmonologist who had conducted an examination of Cleghorne and reviewed her medical records. He noted that in 1994 Cleghorne experienced difficulty breathing after a fan blew cold air on her in her classroom, and that since 1995, she experienced dyspnea, or shortness of breath, on exertion, a condition commonly associated with asthma.

Dr. Adler concluded that plaintiff had developed asthma prior to moving to the new school location and that "environmental contaminants" at the school did not cause the condition. Dr. Adler explained that Cleghorne has "atopic or allergic asthma" and is "allergic to several common allergens, including tree and ragweed pollen, dust mites, dogs, cats, cockroaches ... mold spores ... and mouse and rat antigens ... none of which are exclusive to the New School." Because these environmental contaminants "are extremely prevalent," she would likely have "similar symptoms in any other urban environment." Dr. Adler concluded that, while working at the New School, Cleghorne was simply experiencing asthmatic symptoms triggered by common allergens.

On October 4, 2010, plaintiffs cross-moved for summary judgment and sought denial of defendants' summary judgment motion. In support, plaintiffs submitted the affidavit of their expert, Dr. Hugh Cassiere, and an affidavit from Cleghorne that provided more detail concerning the conditions in the school.

In the affidavit, Cleghorne stated that when the school moved to the new location, she spent several hours a day during the week before the school opened cleaning up dust, dirt, rodent droppings and carcasses, cobwebs, dead insects, mildew and mold. Cleghorne further stated that after classes began, she cleaned her classroom twice daily. Cleghorne described her symptoms and medical treatment consistent with her § 50-h testimony.

Plaintiffs' expert, Dr. Cassiere, opined that Cleghorne did not have asthma prior to 2000, but rather suffered from a respiratory condition described as asymptomatic "airway hyper responsiveness" (AHR). Crediting Cleghorne's account of her exposure at the school, Cassiere concluded that Cleghorne's asthma was caused in 2000 by "high-level exposure to, and daily inhalation of dust, dirt, rodents, rodent dander, mold, mildew, cockroaches, and bug carcasses."

In reply, defendants asked the motion court, inter alia, to exclude Cassiere's report on the basis that his opinion on causation and the methodology used to form that opinion was not generally accepted in the medical community. ...


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