Nonnon v City of New York

[*1] Nonnon v City of New York 2009 NY Slip Op 51513(U) [24 Misc 3d 1218(A)] Decided on June 2, 2009 Supreme Court, Bronx County Schachner, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 2, 2009
Supreme Court, Bronx County

Patricia Nonnon, as Executrix of the Estate of Kerri Nonnon, Deceased, and Patricia Nonnon, individually et al., Plaintiffs,

against

City of New York, Defendant.



8576/91



Plaintiffs:

Shandell, Blitz, Blitz & Ashley, LLP

By: Mitchel Ashley, Esq.

Defendant:

Michael A. Cardozo, Corporation Counsel of the City of New York

By: Scot C. Gleason, Assistant Corporation Counsel

Larry S. Schachner, J.

This motion for summary judgment by defendant City of New York (City) concerns nine separate but related actions in which plaintiffs seek damages for personal injury or wrongful death alleging that they, or their family members, live or lived near the Pelham Bay Landfill (Landfill) in the Bronx, that they were exposed to hazardous substances emanating from the Landfill, that they contracted either acute lymphoid leukemia (also known as acute lymphocytic leukemia or acute lymphoblastic leukemia) (ALL) or Hodgkin's disease and that their diseases were caused by their exposure to chemicals from the Landfill.

Procedurally, this motion was originally brought before the court as a motion to dismiss. The original motion was denied by the Supreme Court (Nonnon v City of New York, 1 Misc 3d 897 [2003, Hunter, J.]) and the denial was affirmed on appeal by the Appellate Division, First Department (Nonnon v City of New York, 32 AD3d 91 [1st Dept 2006]). Significantly, both courts treated the motion as one for summary judgment with the First Department holding that the plaintiffs "presented sufficient evidence to sustain their burden on summary judgment." id. at 96-97. However, the Court of Appeals ruled that the motion had never been properly converted to one for summary judgment and affirmed the Appellate Division, First Department solely on procedural grounds stating that, "the City is not now entitled to dismissal of plaintiffs' complaints for failure to state a cause of action." Nonnon v City of New York, 9 NY3d 825, 827 (2007). [*2]

Defendant City is now seeking to bring this motion again albeit as a summary judgment motion. Plaintiffs oppose the motion. This court is constrained to deny the motion for the reasons that follow.

Notwithstanding the fact that the holding of the Court of Appeals was "solely on procedural grounds", it affirmed the Appellate Division, First Department which found that plaintiffs had presented sufficient evidence to defeat a motion for summary judgment. See Nonnon v City of New York, 32 AD3d 91 (1st Dept 2006). Therefore, the decision of the Appellate Division, First Department is the law of the case particularly with respect to the merits. Moreover, in the instant motion, the City raises no new facts or law to warrant a departure from the prior holding of the Appellate Division, First Department.

"It is well established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." Parker v Mobil Oil Corp., 7 NY3d 434, 448 (2006) (citations omitted). However, the Court of Appeals departed from the Appellate Division, Second Department's underlying decision in Parker v Mobil Oil Corp., 16 AD3d 648 (2d Dept 2005), aff'd, Parker v Mobil Oil Corp., 7 NY3d 434 (2006) and found that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community." Parker v Mobil Oil Corp., 7 NY3d at 448. Moreover, the Appellate Division, First Department in Nonnon found that "epidemiological reports such as those submitted in this case are essential to proving medical causation in toxic tort cases." Nonnon v City of New York, 32 AD3d at 106.

In addition, Fraser v 301-52 Townhouse Corp., 57 AD3d 416 (1st Dept 2008), is distinguishable, as the court found that plaintiffs failed to meet their burden of establishing general acceptance of the theory on which theirspecificclaims were based. id. at 418. While the court recognized that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship" (id. at 420 (quoting Parker, 7 NY3d at 448)), it did not believe that under the circumstances therein, "plaintiffs' reliance on the method of differential diagnosis was an adequate substitute for quantitative proof." id. Therefore, in Fraser, the Appellate Division, First Department found that the plaintiffs presented insufficient evidence of causation, whereasin Nonnon, the Appellate Division, First Department found that the plaintiffs had "presented sufficient evidence to sustain their burden on summary judgment." Nonnon v City of New York, 32 AD3d 91, 93 (1st Dept 2006). Further, the court in Fraser acknowledged that "there is no rule that a jury may hear only theories that are either conclusively establish[ed]' by the scientific literature or unanimously supported by the scientific authorities." Fraser v 301-52 Townhouse Corp., 57 AD3d at 419 n 2.

Thus, as the issues presented on the instant matter are the same as those presented to the Appellate Division, First Department in Nonnon v City of New York, 32 AD3d 91 (1st Dept 2006), and as the City has presented no new law or facts sufficient to depart fromthe prior holding which decided the issues on the merits, for the reasons set forth in Nonnon v City of New York, 32 AD3d 91 (1st Dept 2006), this court is constrained to deny the motion.

Accordingly, the City's motion for summary judgment is denied.

This constitutes the decision and order of the court. [*3]

___________________________

LARRY S. SCHACHNER, J.S.C.

Dated: June 2, 2009