New York Supreme and/or Appellate Courts Appellate Division, First Department
December 27, 2012
COLIN FRASER, ET AL., PLAINTIFFS-RESPONDENTS,
301-52 TOWNHOUSE CORP., ET AL., DEFENDANTS-APPELLANTS.
Fraser v 301-52 Townhouse Corp.
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 December 27, 2012
Friedman, J.P., Catterson, Renwick, DeGrasse, Roman, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered March 23, 2011, which, to the extent appealed from, denied defendants' motion to dismiss the claims for lost earnings or to preclude evidence in support thereof at trial, to preclude evidence in support of the claims of loss of personal property, to dismiss the claim for damages for the alleged diminished value of the apartment or preclude evidence in support thereof, and to preclude expert testimony as to the rules of law applicable to this case, unanimously modified, on the law, to grant the motion to dismiss the claims for lost earnings and to preclude evidence of loss of personal property, and otherwise affirmed, without costs.
Plaintiffs' premises liability claims are based on an alleged toxic mold condition in their former cooperative apartment. In his deposition, plaintiff Colin Fraser attributed the claimed lost earnings to lethargy which, according to plaintiffs Colin Fraser and Pamela Fraser's supplemental bill of particulars, was a consequence of plaintiffs' exposure to the mold contamination. Damages for the resultant lost earnings are therefore not recoverable in light of the motion court's previous dismissal of plaintiffs' personal injury claims (see 57 AD3d 416 , appeal dismissed 12 NY3d 847 ). Moreover, it does not avail plaintiffs to argue that they have not been able to make commercial use of the apartment since 2002, which happens to be the year they moved out of the premises.
Plaintiffs should be precluded from offering evidence at trial as to loss of personal property because they disposed of the items they claim were damaged, thereby preventing defendants from challenging the validity and extent of those claims (see Squitieri v City of New York, 248 AD2d 201 [1st Dept 1998]).
Notwithstanding defendants' argument, the closed violation summary report issued by the New York City Department of Housing Preservation and Development does not dispose of plaintiffs' claim of a diminution in the value of the apartment. The report does not resolve the operative question of whether and to what extent the alleged contamination affected the value of plaintiffs' cooperative shares (see e.g. Matter of Commerce Holding Corp. v Board of Assessors of Town of Babylon, 88 NY2d 724, 730 ). Moreover, as the motion court ruled, limitations on the testimony of plaintiffs' expert witnesses are appropriately left to the discretion of the trial court.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 27, 2012
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