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Colucci v. Stuyvesant Plaza, Inc.

Supreme Court of New York, Third Department

January 11, 2018

LORA COLUCCI et al., Appellants,

          Calendar Date: November 16, 2017

          Oliver Law Office, Albany (Lewis B. Oliver Jr. of counsel), for appellants.

          Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Robert A. Rausch of counsel), for respondent.

          Before: McCarthy, J.P., Lynch, Mulvey and Aarons, JJ.


          MULVEY, J.

         Appeal from an order of the Supreme Court (Kramer, J.), entered July 14, 2016 in Schenectady County, which, among other things, granted defendant's motion for summary judgment dismissing the amended complaint.

         Plaintiff Lora Colucci was the owner and operator of plaintiff Yar-Lo, Inc., doing business as Merle Norman Cosmetics, a cosmetics franchise business. Beginning in 1990, plaintiffs leased premises in a shopping plaza known as Stuyvesant Plaza, which is owned by defendant. During the lease period, the premises experienced problems with its sewage system resulting in multiple floods and sewage backups, reportedly exposing Colucci and the premises to mold and raw sewage. Plaintiffs ceased operations and vacated the premises in April 2005, and then

         Yar-Lo sued its insurance company for damages under the business interruption coverage of its policy. The insurer was later awarded summary judgment dismissing that complaint based upon its unrefuted showing that the business had not been forced to close as a direct result of the malfunctioning sewage system, which defendant had repaired by the end of 2004 (Yar-Lo, Inc. v Travelers Indem. Co., 130 A.D.3d 1402 [2015]).

         In 2007, plaintiffs commenced this action against defendant for personal injuries and business income loss, alleging that Colucci's exposure to raw sewage and mold between September and December 2004 caused various serious health problems and required her to close the business. Plaintiffs alleged that defendant had breached the lease agreement by, among other deficiencies, failing to maintain the sewage ejector pump [1]. After issue was joined and years of ongoing discovery, Supreme Court issued a scheduling order requiring that the parties exchange expert disclosure by May 1, 2015, and that dispositive motions be filed by August 1, 2015, and set a trial date in November 2015. While defendant complied with the order by timely serving expert disclosure on plaintiffs' then-counsel, plaintiffs failed to do so.

         Defendant moved for summary judgment in July 2015 based upon, among other grounds, plaintiffs' complete lack of expert disclosure and failure to submit any expert proof that Colucci's injures and damages were caused by defendant's actions. Defendant contended that plaintiffs should be precluded from presenting any expert proof. Plaintiffs were thereafter granted numerous extensions and adjournments, during which their counsel was relieved and new counsel retained; the delays were conditioned on compliance with the scheduling order and the understanding that discovery would not be reopened and there would be no extensions of time to comply with the scheduling order regarding, among others, expert disclosure. In May 2016, plaintiffs filed papers in opposition to defendant's summary judgment motion, attaching for the first time, as relevant here, affidavits from four witnesses: Colucci, Nigel Domer (a plumber), Charles Palmer (a certified service technician) and Eckardt Johanning (Colucci's treating physician). Defendant requested that the affidavits be rejected as untimely, as they were first disclosed over a year after the court-ordered deadline. Following oral argument, Supreme Court rendered a decision from the bench, later reduced to a written order, granting defendant's motion for summary judgment dismissing the complaint [2]. Plaintiffs now appeal.

         We affirm. Initially, Supreme Court did not issue a written decision explaining its reasoning, and the transcript of its ruling from the bench is not entirely clear, making judicial review more difficult. Nonetheless, after careful review, we find that defendant established its entitlement to summary judgment dismissing the amended complaint, which plaintiffs failed to rebut. Colucci's negligence action required proof that defendant owed her a duty, breached that duty and that the breach was the proximate cause of the injuries complained of (see Pasternack v Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825 [2016]). We find that defendant made a prima facie case establishing its entitlement to summary judgment dismissing plaintiffs' complaint based upon plaintiffs' failure and inability to prove causation (see Cornell v 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 781 [2014]).

         On the issue of causation, defendant submitted the affidavit of Michael Holland, a physician specializing in occupational medicine and medical toxicology, who has extensively treated people exposed to toxic substances. Holland reviewed Colucci's medical records and the testing documentation from the premises and concluded that "any theory of direct causation between sewage and mold exposure and the physical injuries [that Colucci] is alleging, is novel and is not generally accepted within the medical or scientific community." He further opined that exposure to mold at the level found at the premises "do[es] not cause injury or ailment of any significance or duration" and that the theories espoused by her treating physician, i.e., Johanning, "are considered unsupported fringe theories" that have "no scientific support." He concluded that she had been exposed to "very low levels" and only "for a limited duration, " which was "not sufficient to cause adverse health issues of significance, and certainly could not be a cause of any of her ongoing medical conditions." Defendant also submitted the testimony and affidavit of Janet Kaplan, its property manager and an attorney, who explained that defendant's maintenance crew had repaired and replaced the sewer ejector pump on the premises on several occasions as a courtesy, but that the lease placed the obligation on plaintiffs to repair the plumbing fixtures, which included the pump in issue. Upon review of the record, we find that defendant made a prima facie case with expert proof establishing that it did not breach any duty to plaintiffs and that there was no causal relationship between Colucci's exposure to mold and sewage on the premises and her injuries or economic losses, shifting the burden to plaintiffs to tender proof that raises a triable issue of fact (see Cornell v 360 W. 51st St. Realty, LLC, 22 N.Y.3d at 783-784; Kendall v Amica Mut. Ins. Co., 135 A.D.3d 1202, 1205, 1207-1208 [2016]).

         In response to defendant's motion, plaintiffs failed to tender sufficient proof to raise a question of fact so as to defeat defendant's prima facie proof. To rebut defendant's motion, plaintiffs submitted several expert affidavits, which Supreme Court refused to consider because plaintiffs had not timely disclosed them by the court-ordered expert disclosure deadline, and then had disclosed them only in response to defendant's motion. Importantly, a trial court "is vested with broad discretion in controlling discovery and disclosure, and generally its determinations will not be disturbed in the absence of a clear abuse of discretion" (Seale v Seale, 149 A.D.3d 1164, 1165 [2017] [internal quotation marks and citation omitted]). With regard to expert disclosure, pursuant to CPLR 3101 (d) (1) (i), as here relevant, "[u]pon request, each party [is required to] identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion" (see Schmitt v Oneonta City Sch. Dist., 151 A.D.3d 1254, 1255 [2017]).

         Despite Supreme Court's scheduling order requiring expert disclosure by May 1, 2015, it is uncontroverted that plaintiffs failed to comply and first identified their experts and submitted their affidavits in opposition to defendant's summary judgment motion over one year later (see Tienken v Benedictine Hosp., 110 A.D.3d 1389, 1391 [2013]). Plaintiffs did not request an extension for disclosure or provide a viable excuse or good cause for failing to comply over this protracted period, and the numerous adjournments were granted at their request with the express condition that the court-ordered discovery and disclosure schedule was not being extended (see id.; Amodeo v Town of Marlborough, 307 A.D.2d 507, 509 [2003]; Cramer v Spada, 203 A.D.2d 739, 740 [1994], lv denied84 N.Y.2d 809');">84 N.Y.2d 809 [1994], cert denied514 U.S. 1055');">514 U.S. 1055 [1995]; see also Douglass v St. Joseph's Hosp., 246 A.D.2d 695, 696 [1998]; compare Klotz v Warick, 53 A.D.3d 976, 979 [2008], lv denied11 N.Y.3d 712');">11 N.Y.3d 712 [2008]). Plaintiffs were not entitled to "ignore court orders with impunity" (Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 81 [2010] [internal quotation marks and citation omitted]). Under these circumstances, we cannot conclude that Supreme Court abused its discretion in precluding plaintiffs ...

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