Cornell v 360 W. 51st St. Realty, LLC
Decided on December 18, 2009
Supreme Court, New York County
Brenda Cornell, Plaintiff,
360 West 51st St. Realty, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF, BRUSCO REALTY MANAGEMENT LLC, 360 WEST 51ST STREET CORP., GEOFFREY SHOTWELL and SUPREME SERVICES OF NEW YORK INC., Defendants.
GALLET DREYER & BERKEY, LLP
845 Third Avenue, 8th Floor
New York, New York 10022
For Defendant SUPREME SERVICES OF NEW YORK INC:
DEBORAH DEL SORDO, ESQ.
AHMUTY, DEMERS & McMANUS, ESQS.
123 William Street, 27th Floor
New York, New York 10038
Attorneys for DefendantdThird-Party Plaintiffs
360 WEST 51ST ST. REALTY, LLC, BRUSCO
REALTY CORP., ROBERT BARANOFF,
BRUSCO REALTY MANAGEMENT LLC:
LANDMAN CORSI BALLAINE & FORD, P.C.
120 Broadway, 27th Floor
New York, New York 10271
Attorneys for Defendants 360 WEST 51ST STREET CORP. and GEOFFREY SHOTWELL:
BONNER KIERNAN TREBACH & CROCIATA, LLP
Empire State Building, Suite 3304
New York, New York 10118
Marcy S. Friedman, J.
In this personal injury action, plaintiff Brenda Cornell seeks damages for injuries allegedly sustained as a result of exposure to mold, in the first week of October 2003, in her former apartment at 360 West 51st Street, New York, New York. Defendants 360 West 51st Street Realty, LLC, Brusco Realty Corp., Brusco Realty Management, and Robert Baranoff (collectively "51st St. Realty defendants") move for summary judgment dismissing the complaint. Defendants 360 West 51st Street Corp. and Geoffrey Shotwell cross-move for summary judgment dismissing the complaint and all cross-claims against them. Defendant/third-party defendant Supreme Services of New York Inc. ("Supreme") moves for summary judgment dismissing the second amended complaint and all cross-claims against it, and for leave to renew a prior motion dismissing the third-party complaint. Plaintiff also moves for summary judgment in her favor.
Defendant 360 West 51st Street Realty, LLC ("51st St. Realty") was the owner of the
building at the time of plaintiff's alleged exposure to mold. Defendant Robert Baranoff was an
officer and shareholder of 51st St. Realty. Plaintiff alleges that defendants Brusco Realty Corp.
and Brusco Management LLC were the managing agents for the building. Defendant Brusco
Realty Corp. denies any involvement in the ownership or management of the building at the time
of plaintiff's alleged exposure. It is undisputed that defendant 360 West 51st Street Corp., of
which defendant Shotwell was an officer, owned the building prior to its sale to 51st St. Realty
in September 2003. It is further undisputed that, in the first week of October 2003, 51st St.
Realty arranged for a cleanup project involving removal of debris from the basement, and
defendant Supreme was the contractor that performed the work. Plaintiff alleges that she became
ill on October 1 or 3, 2003 as a result of the work in the basement. Plaintiff moved out of her
apartment on October 7 or 8, 2003 and never returned. Plaintiff alleges that the project caused
her to be exposed to mold which in turn caused her to develop permanent upper respiratory
illnesses, asthma, and skin irritations.
51st St. Realty Defendants' Motion
Plaintiff's Personal Injury Claim Based on Mold
The 51st St. Realty defendants move for summary judgment primarily on the ground that plaintiff is unable to prove general or specific causation. More particularly, they contend that plaintiff cannot prove either that mold can cause the types of injuries that plaintiff alleges she sustained or that mold in plaintiff's apartment caused her specific injuries. Defendants seek an order precluding plaintiff's experts from testifying on general and specific causation and, in the alternative, request a Frye hearing on whether plaintiff's expert's opinions have gained general acceptance in the scientific community. [*2]
It is well settled that "[t]he introduction of novel scientific evidence calls for a determination of its reliability." (Parker v Mobil Oil Corp., 7 NY3d 434, 446 , rearg denied 8 NY3d 828 .) New York courts continue to adhere to the Frye standard, first articulated in Frye v United States (293 F 1013 [DC Cir 1923]), in determining the reliability of novel scientific evidence. (Parker, 7 NY3d at 447, n 3.) This standard requires a determination of "whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." (People v Wesley, 83 NY2d 417, 422 . Accord Parker, 7 NY3d at 446.)[FN1] In a products liability action involving exposure to an allegedly harmful substance, the plaintiff must prove "general causation" i.e., "that the toxin is capable of causing the particular illness," and "specific causation" i.e., that the exposure was sufficient to cause the particular plaintiff's illness. (Id. at 448.) The plaintiff has the burden of proving the admissibility of the expert evidence on general and specific causation. (See Fraser v 301-52 Townhouse Corp. [Fraser], 57 AD3d 416 [1st Dept 2008], appeal dismissed 12 NY3d 847 , affg 2007 NY Slip Op 32086[U], 2007 WL 2176698 [Sup Ct, New York County 2007] [Kornreich, J.] [trial court reargument decision], modfg 2006 NY Slip Op 51855[U], 2006 WL 2828595 [Sup Ct, New York County 2006] [Kornreich, J.].)
In Fraser, this Department upheld the trial court's preclusion, after a Frye hearing, of the opinion of Eckardt Johanning, M.D. that the plaintiffs sustained upper respiratory injuries, asthmatic symptoms, rash, and fatigue as a result of dampness that caused mold. (Fraser, 57 AD3d at 416-417; Fraser dissent, 57 AD3d at 421 [summarizing plaintiffs' injuries].) Dr. Johanning testified that these illnesses were caused by the Fraser plaintiffs' exposure to "excessive and atypical microbiological contamination." (Id. at 421 [dissent, summarizing expert's opinion].) Dr. Johanning, who is Board Certified in Occupational and Environmental Medicine/Preventive Medicine, is also plaintiff Cornell's expert. Here, similarly, he opines that plaintiff Cornell's exposure to "an unusual mixture of atypical microbial contaminants" caused her symptoms of bronchial-asthma, rhino-sinusitis, hypersensitivity reactions, and irritation reactions of the skin and mucous membranes. (Johanning Aff. In Opp. to Defs.' Motion, dated Apr. 24, 2008 ["Johanning Aff."], paras. 4, 38].)
In upholding the preclusion of Dr. Johanning's opinion on general causation, the Appellate Division expressly held that the Fraser plaintiffs failed to carry their burden of demonstrating general acceptance within the relevant scientific community of the theory that mold caused the plaintiff's health problems. The Court found that while there is general agreement that indoor dampness and mold are "associated with" upper respiratory complaints, the epidemiological evidence of association was "not strong enough to constitute evidence of a causal relationship." (Fraser, 57 AD3d at 417.)[FN2]
The epidemiological evidence upon which Dr. Johanning relies in the instant case does [*3]not differ materially from that submitted to the Fraser trial court, which held a Frye hearing over a number of dates in 2005 and 2006, and received additional scientific studies upon a motion for reargument and renewal that was decided in 2007. While numerous studies were considered in Fraser, the majority approvingly cited the study on which the trial court "placed the most reliance": a 2004 publication of the Institute of Medicine of the National Academies, entitled "Damp Indoor Spaces and Health" (National Academies Press 2004) ("2004 IOM Report"), which the Fraser plaintiffs themselves introduced. (See Fraser, 57 AD3d at 417, n 1; Fraser trial court reargument decision, 2007 WL 2176698 at 4.) This Report contained findings that there was not sufficient evidence of a "causal relationship," but there was sufficient evidence of an "association," between exposure to damp indoor environments or mold and health outcomes, including upper respiratory (nasal and throat) tract symptoms and asthma symptoms in sensitized asthmatic persons. (Id. at 253 [Table 5-12], 254 [Table 5-13].) The Report also found "limited or suggestive evidence of an association" between exposure to damp indoor environments and "asthma development" (id. at 253 [Table 5-12]), but "inadequate or insufficient evidence to determine whether an association exists" between mold in damp indoor environments and asthma development." (Id. at 254 [Table 5-13.)
Defendants in the instant case continue to rely on the 2004 IOM Report (Defs. Ex. JJ).[FN3] While Dr. Johanning cites two studies that post-date the record submitted in Fraser, the studies do not reflect a material change in scientific opinion on the issue of general causation: The first article, authored by Andrew Hope, M.D. and Ronald Simon, M.D. and published in May-June 2007, is entitled "Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes." (28 Journal of Allergy and Asthma Proceedings [Issue 3] 262 [P.'s Motion, Ex. 4].) This article purports to review the major epidemiological and biological studies, and finds that "[t]he preponderance of epidemiological data supports a link between exposure to dampness and excess mold growth and the development of aeroirritant symptoms." (Id. at 262 [Abstract].) However, the article concludes that "[t]he data reviewed here represent initial steps toward defining the pathophysiological mechanisms for the aeroirritant effects of damp homes and associated excess mold growth." (Id. at 268-269.) The article states that further epidemiological studies are needed to determine the levels of microbial volatile organic compounds (MVOCs) in damp homes and to examine the relationship between MVOC levels and symptoms. (See id. at 269.) The second article, authored by Ju-Hyeong Park and others of the Division of Respiratory Disease Studies, National Institute for Occupational [*4]Safety and Health, and published in January 2008, is entitled "Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building." (116 Environmental Health Perspectives [Issue 1] 45 [P.'s Motion, Ex. 5].) This article summarized the results of the authors' study as follows: "[W]e showed that among employees in a building with a long history of water damage, respiratory symptoms and post-occupancy asthma were strongly associated with fungi in a linear exposure-response manner. . . . These findings extend the conclusions of insufficient evidence for the development of asthma in relation to the presence of mold or other agents in damp indoor environments reported by the Institute of Medicine (2004)."[FN4] The study goes on to suggest the need for further research. In particular, the authors argue the superior merits of measuring ergosterol for assessing exposure to mold in epidemiological studies, and note that "only a few researchers" have attempted to do so. (Id. at 45.) While the study extends the scientific findings on the strength of the association between specified fungal exposures and asthma, it does not purport to repudiate the 2004 IOM Report and is insufficient to demonstrate general acceptance of the theory advanced here that exposure to "atypical microbiological contamination" causes upper respiratory infections or asthma. (See, supra at 4.)
As the Court of Appeals has explained, the Frye standard "emphasize[s] counting scientists' votes, rather than . . . verifying the soundness of a scientific conclusion." (Parker, 7 NY3d at 447 [internal quotation marks and citations omitted].) Thus, the purpose of a Frye hearing is not to decide which experts' conclusions are correct (Marsh v Smyth, 12 AD3d 307, 311 [1st Dept 2004] [Saxe, J. concurring]), but "to determine whether the experts' deductions are based on principles that are sufficiently established to have gained acceptance as reliable." (Id. at 308 [majority opinion].) The courts have repeatedly emphasized that a defendant's "factual disagreement" with the plaintiff's causation theory does not require a Frye hearing. (Lustenring v AC & S, Inc., 13 AD3d 69, 70 [1st Dept 2004], lv denied 4 NY3d 708 ; Gayle v Port Auth. of NY & N.J., 6 AD3d 183 [1st Dept 2004].) Fraser recognized that "there is no rule that a jury may hear only theories that are either conclusively established' by the scientific literature or unanimously supported by the scientific authorities." (57 AD3d at 418, n 2 [internal brackets omitted].) An expert's theory of causation will be admissible if supported by scientific data that reasonably supports the expert's conclusion. (See Matter of Neurontin Product Liability Litigation v Pfizer Inc., 2009 NY Slip Op 51459[U] at * 7 [this court's opinion in a mass tort pharmaceutical litigation, admitting expert's opinion on general causation where scientific data was not conclusively established and further study was required, and reviewing standards for admissibility under these circumstances].)[FN5] This Department has therefore repeatedly excluded [*5]experts' opinions where the scientific literature was plainly insufficient to support the opinions. (See e.g. Veloz v Refika Realty Co., 38 AD3d 299, 300 [1st Dept 2007], lv denied 9 NY3d 817  [precluding expert's opinion where the "expert does not cite any particular scientific literature" to support theory of causation or to establish threshold level of exposure]; Heckstall v Pincus, 19 AD3d 203, 205 [1st Dept 2005] [precluding expert's opinion where plaintiff presented "no clinical or epidemiological data or peer reviews" linking the drug to the disease, and supported claim of causation solely with case reports]; Marsh, 12 AD3d at 313 [Saxe, J. concurring] [noting that many of the Court's Frye cases have precluded testimony based upon "a complete absence of literature or studies supporting the claim"]; Selig, 290 AD2d at 320 [precluding expert's opinion where the record lacked any clinical data showing a causal link between the drug and the disease, and any scientific literature supporting the expert's theory as to the mechanism of action of the drug].)
There is in fact significant disagreement among appellate authorities on whether the existing scientific evidence that indoor dampness or mold can cause respiratory illness is sufficiently accepted to permit a mold case to proceed to the jury. The Fourth Department has refused to dismiss a mold case under the Frye standard, finding "sufficient epidemiological evidence to support a finding of general causation." ( B.T.N. v Auburn Enlarged City School Dist., 45 AD3d 1339, 1340 . See also Sweeney v Purcell Constr. Corp., 20 AD3d 872 .) The Fraser dissent strongly disagreed with the majority's rejection of the plaintiff's proof of general causation. The majority held that "none of the medical literature in the record supports the stated position of plaintiffs' expert" (57 AD3d at 418 [emphasis in original]), whereas the dissent concluded that "a plethora of peer-reviewed articles supports plaintiffs' claim." (Id. at 433 [emphasis in original].) More particularly, the dissent found that the epidemiological studies submitted by the plaintiffs, a number of which are also cited here, "establish that the association' between building dampness [or mold] and illness is one of causation, not one of coincidence." (57 AD3d at 432.)[FN6] The dissent also noted that the defendants' expert, Michael Phillips, M.D., who is defendants' expert here as well, acknowledged the "potential" of indoor mold to cause the respiratory symptoms at issue (id. at 430), and that Dr. Phillips has himself treated "thousands" of patients complaining of respiratory problems associated with damp buildings. (Id. at 433.)
Although defendants here assert that further study is needed of injury-causing properties [*6]of indoor dampness or mold, defendants do not contend, nor did Fraser find, that the relevant scientific community has rejected plaintiff's expert's opinion that exposure to mold under the circumstances alleged by plaintiff is capable of causing the injuries that plaintiff claims. Rather, Fraser and the instant action are cases in which there is a sharp dispute as to the scientific underpinnings for the expert's opinion based on the current state of epidemiological evidence. Higher appellate review is awaited, given that this dispute arises in the context of widespread public concern and increasing litigation about the effects of mold on health. For purposes of this opinion, however, the Fraser majority has resolved the issue of the sufficiency of the current epidemiological evidence to demonstrate general causation. As the majority found that the epidemiological evidence on which Dr. Johanning relied was not sufficiently strong to permit a finding of general causation, and as the limited supplemental studies that are submitted in this action plainly do not remedy the insufficiency found by the Fraser majority, this court is constrained to hold that plaintiff is unable to prove general causation.
In so holding, the court notes that there is significant disagreement not only among judges but also among scientists on the strength of the associations documented by the existing studies. Even the studies cited by the defendants, in Fraser and here, are subject to differing interpretations on the strength of the associations found.[FN7] It may be suggested that the scientific authorities generally recognize the potential of indoor mold to cause at least certain upper tract respiratory illnesses and asthma symptoms (see Fraser dissent, 57 AD3d at 430. See also plaintiff's authorities discussed, supra at 6-7), and that the more difficult issue is the extent to which identification and quantification of mold agents or toxins are necessary to establish specific causation of particular illnesses. As discussed below, however, Fraser has also resolved this issue for purposes of this opinion, given the substantial identity of the expert opinion and scientific evidence submitted there and here on specific causation of plaintiff's illnesses.
Fraser rejected Dr. Johanning's claim to have established causation by means of "differential diagnosis." The majority reasoned that differential diagnosis was not admissible to establish causation because the plaintiffs had failed to demonstrate general acceptance of the theory that a causal relationship existed between indoor dampness or mold and the claimed injuries. (57 AD3d at 417-418. Compare Fraser dissent, 57 AD3d at 435; B.T.N., 45 AD3d at 1340 [4th Dept].) Dr. Johanning's claim in the instant action to have established causation by differential diagnosis (see Johanning Aff., para. 40) is accordingly similarly unavailing.
Fraser held, further, that the plaintiffs were unable to demonstrate specific causation [*7]based on their failure to offer evidence that they were exposed to a threshold level of dampness or mold sufficient to cause their injuries. (57 AD3d at 419, citing Parker, 7 NY3d at 448.) In the instant case, plaintiff acknowledges that she has not identified the specific type of microbial (i.e., mold) agents or toxins that affected her, and has not quantified her exposure. (Johanning Aff., para 5.) Dr. Johanning opines that scientific authorities have disavowed an "exposure standard," and that "precise quantifiable measures [are] irrelevant." (Id., para. 32.) However, he fails to cite specific findings in any scientific literature to this effect. It appears that Dr. Johanning's position is that plaintiff Cornell suffers from an "irritative and allergic-type symptomatology" and not from a "mold infection," and that her failure to test her apartment for "mycotoxins" is therefore irrelevant. (See Johanning Aff., paras. 24, 5.) This position was also advanced in Fraser. The dissent accepted Dr. Johanning's explanation that "ascertaining the specific levels of a particular mold in a building is not determinative of whether the mold caused irritative or allergic effects. This is because, he explained, as long as a person has become sensitized to the mold, he or she may react to a small amount of exposure." (Fraser dissent, 57 AD3d at 434.) In contrast, the majority implicitly rejected this position, holding that the plaintiffs' "experts failed to specify the threshold level of exposure to dampness or mold needed to produce" their injuries. (Fraser, 57 AD3d at 419.) While noting that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship," the majority also rejected Dr. Johanning's reliance on differential diagnosis to substitute for quantitative proof under the circumstances presented. (57 AD3d at 420, quoting Parker, 7 NY3d at 448.)
The circumstances in Fraser — plaintiffs claiming upper respiratory symptoms, asthmatic symptoms, and allergic reactions, based on an undifferentiated mixture of microbial contaminants — are substantially the same as the circumstances in the instant case. The scientific theory advanced in Fraser is the same theory advanced here, by the same witness, Dr. Johanning, on the basis of largely the same scientific evidence. While stressing that its holding did not "set forth any general rule that dampness and mold can never be considered the cause of a disease," Fraser found that such causation had not been demonstrated by the evidence presented by the plaintiffs there. (57 AD3d at 418.) Fraser mandates this court's dismissal of plaintiff's personal injury cause of action.
In dismissing plaintiff's personal injury claim, the court rejects plaintiff's contention that defendants are barred by collateral estoppel from relitigating findings that mold in plaintiff's apartment adversely affected her health. In a summary nonpayment proceeding brought by defendant (there petitioner) against plaintiff (there respondent), the court made a finding upon which plaintiff now relies, based in part on trial testimony given by Dr. Johanning, that respondent "has shown by a preponderance of the credible evidence that a combination of metallic dust and fungi existed in her apartment, . . . that the condition affected her health and that she abandoned the premises as a result." (360 W. 51st St. Realty, LLC v Cornell, Hous Part, Civ Ct, New York County, Aug. 16, 2005, Cavallo, J.H.C., Index No. L & T 106494/03, affd 14 Misc 3d 90 [App Term, 1st Dept 2007].)
Collateral estoppel precludes relitigation of issues where the "identical issue" that is to be decided in the current litigation was "necessarily" decided in a prior action, and where the party to be precluded from relitigating the issue "had a full and fair opportunity to contest the prior determination." (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 .) The findings as to the [*8]effect of mold on Ms. Cornell's health were made in the context of determining her warranty of habitability defense and counterclaim. The issue on a warranty of habitability claim is the diminution in value of a tenant's apartment caused by conditions in the apartment. (See Park W. Mgt. Corp. v Mitchell, 47 NY2d 316 , cert denied 444 US 922.) The findings as to effect of the conditions on the tenant's health were not necessary to that determination and therefore clearly cannot be the basis for collateral estoppel. In addition, defendants cannot be found to have had a full and fair opportunity to litigate the issue, taking into account the "realities of [the] litigation," and comparing the relatively minor monetary damages at issue in the Housing Court proceeding with the large potential exposure in this personal injury action. (See Gilberg v Barbieri, 53 NY2d 285, 292 .)
Plaintiff's Other Claims
The 51st St. Realty defendants correctly argue that plaintiff's second cause of action for constructive eviction should be dismissed as duplicative of plaintiff's fourth cause of action for breach of the covenant of quiet enjoyment. (See Phoenix Garden Rest., Inc. v Chu, 245 AD2d 164 [1st Dept 1997].)
Plaintiff's fifth cause of action for intentional or reckless infliction of emotional distress and her claim for punitive damages must also be dismissed. The undisputed evidence is that defendant 51st St. Realty offered to have plaintiff's apartment cleaned after she complained of illness from mold, and to relocate plaintiff, but completely failed to call in an expert to remediate the situation. As held in the appeal of the Housing Court's determination of plaintiff's warranty of habitability claim, this failure entitled plaintiff to a significant abatement of rent. (See 360 W. 51st St. Realty, LLC, 14 Misc 3d at 91 [upholding Housing Court finding].) However, absent any showing that the failure to make repairs was systematic or was part of a pattern of harassment calculated to cause plaintiff to vacate, it was not the "extreme and outrageous conduct" that supports a cause of action for intentional infliction of emotional distress. (See generally Howell v New York Post Co., 81 NY2d 115, 121 ; Graupner v Roth, 293 AD2d 408 [1st Dept 2002] [isolated failure to make repairs insufficient to support intentional infliction claim]; Estate of Scheuer v City of New York, 10 AD3d 272 [1st Dept 2004], lv denied 6 NY3d 708  [same].) Nor did this conduct evince the degree of moral turpitude necessary to support a claim for punitive damages. (See Walker v Sheldon, 10 NY2d 401 .)
To the extent that plaintiff alleges that her illnesses were the result of heavy metals in her apartment, the complaint is also without merit. While plaintiff offers evidence that tests in her apartment revealed the presence of various metals as well as mold, Dr. Johanning does not opine, and plaintiff does not offer any other evidence, that the metals can or did cause her alleged illnesses. Nor does plaintiff submit any blood tests evidencing her exposure to metals.
Plaintiff fails to raise a triable issue of fact as to whether defendant Robert Baranoff committed any torts in his individual capacity or in furtherance of his employment, or as to whether defendant Brusco Realty Corp. had any relationship to the building at the time of plaintiff's exposure to mold. Plaintiff's claims against these defendants must therefore also be dismissed.
The court reaches a different result as to plaintiff's first cause of action to the extent it claims damages to her personal property as a result of contamination by mold. Defendants seek to dismiss this claim solely on the basis of plaintiff's alleged spoliation of evidence by destroying or discarding the property for which she seeks damages. In opposition, plaintiff points out that she made her apartment available for inspection and testing by defendants, and that on April 28, [*9]2004 defendants' consultant from Clayton Group Services Inc. performed tests for mold on various items of plaintiff's personal property, including a sofa and upholstered chairs. A compliance conference order in this action, dated September 28, 2006, also required plaintiff to provide defendants with copies of personal papers allegedly infested with mold, so that defendants could perform destructive testing on the papers. Further, defendants do not dispute that plaintiff provided photographs and receipts for some of her personal property. On this record, plaintiff raises a triable issue of fact on defendants' spoliation claim that should be resolved by the trial judge.
Other Defendants' Motions
Defendants 360 West 51st Street Corp. and Geoffrey Shotwell and defendant Supreme adopt the 51st St. Realty defendants' argument that plaintiff's personal injury cause of action should be dismissed based on plaintiff's inability to prove causation of her injuries. They also adopt the 51st St. Realty defendants' arguments in support of dismissal of plaintiff's other claims. As held above, all claims, except the portion of plaintiff's first cause of action for property damage and her fourth cause of action for breach of the covenant of quiet enjoyment, will be dismissed against the 51st St. Realty defendants. Defendants 360 West 51st Street Corp. and Shotwell are, however, entitled to dismissal of all claims against them because the undisputed evidence establishes that 360 West 51st Street Corp. did not own the building at the time of the alleged property damage or breach of the covenant of quiet enjoyment. In addition, plaintiff submits no evidence to raise a triable issue of fact as to whether defendant Shotwell is liable in his individual capacity.
As to the branch of Supreme's motion for renewal of its prior motion to dismiss the third-party complaint, Supreme fails to submit any new evidence to establish as a matter of law that it performed the debris removal work in a non-negligent manner. Leave to renew the prior motion will therefore be denied. The complaint and third-party complaint will stand to the extent they seek relief from Supreme based on plaintiff's property damage claim. To the extent they seek relief based on the cause of action for breach of the covenant of quiet enjoyment, they will be dismissed without opposition. (See also 905 Fifth Ave. Assocs., Inc. v 907 Corp., 47 AD3d 401 [1st Dept 2008].)
To the extent plaintiff's motion seeks judgment on the merits of her personal injury claim, the motion is denied based on the above holding. The branch of plaintiff's motion to preclude defendants from using any laboratory report of testing of plaintiff's personal papers is denied without prejudice to an application for such relief before the trial judge.
It is accordingly hereby ORDERED that the motion of defendants 360 West 51st Street Realty, LLC, Brusco Realty Corp., Brusco Realty Management, and Robert Baranoff for summary judgment is granted to the following extent: The complaint is dismissed in its entirety as against defendants Brusco Realty Corp. and Robert Baranoff. All causes of action in the complaint, except the part of the first cause of action for property damage and the fourth cause of action for breach of the covenant of quiet enjoyment, are dismissed against defendants 360 West 51st Street Realty, LLC and Brusco Realty Management; and it is further
ORDERED that the cross-motion of defendants 360 West 51st Street Corp. and Geoffrey Shotwell for summary judgment is granted to the following extent: The complaint is dismissed against said defendants in its entirety; and it is further
ORDERED that the motion of defendant/third-party defendant Supreme Services of New [*10]York Inc. is granted to the following extent: All causes of action in the complaint, except the part of the first cause of action for property damage, are dismissed against said defendant; and the third-party complaint is dismissed against said defendant, except to the extent it seeks relief based on plaintiff's property damage claim; and it is further
ORDERED that the motion of plaintiff Brenda Cornell for summary judgment is denied in its entirety. Provided that: The branch of the motion to preclude defendants from offering evidence at trial of the testing of plaintiff's personal papers is denied without prejudice to renewal before the trial judge; and it is further
ORDERED that the Clerk shall enter judgment accordingly, and that any remaining claims are severed and shall continue.
This constitutes the decision and order of the Court.
Dated: New York, New York
December 18, 2009
MARCY FRIEDMAN, J.S.C.
Footnote 1:For a more comprehensive discussion of the Frye standard, this court refers to its recent decision in Matter of Neurontin Product Liability Litigation v Pfizer Inc. (2009 NY Slip Op 51459[U], 24 Misc 3d 1215[A].)
Footnote 2:Epidemiology is a branch of medicine that focuses on general causation whether an agent is capable of causing a disease. (See Reference Guide on Epidemiology in Reference Manual on Scientific Evidence 335-336 [Fed. Judicial Ctr., 2d ed 2000] ["Reference Guide on Epidemiology"].)
Footnote 3:Of the scientific papers cited here by defendants, two besides the 2004 IOM Report were the focus of dispute in Fraser. The first, an "ACOEM Evidence-Based Statement, entitled "Adverse Human Health Effects Associated with Molds in the Indoor Environment" (45 Journal of Environmental Medicine [Issue 5] 470, 475 [May 2003] ["ACOEM Statement"][Defs. Ex. KK]) finds that causal association between indoor molds and health conditions "remains weak and unproven, particularly with respect to causation by mycotoxins." The second, a position paper of the American Academy of Allergy, Asthma and Immunology, entitled "The Medical Effects of Mold Exposure" (117 Journal of Allergy & Clinical Immunology [Issue2] 326  ["2006 AAAAI Paper"][Defs.' Ex. II]), states that its purpose is to provide a state of the art review of the role of molds in various human diseases. The ACOEM paper was criticized as biased by the Fraser dissent. (57 AD3d at 424.) Neither the ACOEM Statement nor the AAAAI Paper was mentioned in the majority opinion, but the trial court rejected the plaintiffs' challenge to the reliability of the AAAAI Paper. (2007 WL 2176698 at 3.)
Footnote 4:More particularly, the study states: "Because the markers (total culturable fungi, hydrophilic fungi, and ergosterol [a principal sterol in the fungal membrane]) of potential mold exposure were associated with health outcomes, we suggest that further research to understand respiratory health effects in water-damaged indoor environments include measurements of both ergosterol and speciated cultural fungi in dust." (Id. at 50.)
Footnote 5:As discussed in Matter of Neurontin,"[t]rained experts commonly extrapolate from existing data." (General Elec. Co. v Joiner, 522 US 136, 146 .) Absent clinical data conclusively supporting a theory of medical causation, what is required is that the plaintiff "set forth other scientific evidence based on accepted principles showing a causal link." (Selig v Pfizer, Inc., 290 AD2d 319, 320 [1st Dept 2002].) Expert opinion must be supported by scientific data and must not be "connected to existing data only by the ipse dixit of the expert." (Marsh, 12 AD3d at 312 [Saxe, J. concurring], citing Joiner, 522 US at 146.) However, "[i]t is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the plaintiff's expert." (Zito v Zabarsky, 28 AD3d 42, 44 [2d Dept 2006], quoting Marsh, 12 AD3d at 313.)
Footnote 6:It is well settled that an association demonstrated by an epidemiological study is not equivalent to causation and that an identified association must be evaluated by researchers to determine whether the association is causal. (Reference Guide on Epidemiology at 336, 374.) While noting that " association' is not equivalent to causation,'" (57 AD3d at 417, quoting Reference Guide on Epidemiology at 336 [emphasis in original]), the Fraser majority agreed with the dissent that " association' is a continuum spanning from coincidence to causation." (Id. at 419, n 4 [brackets & ellipses omitted]. )
Footnote 7:For example, plaintiff submits the affidavit of Dr. Harriet Ammann, who was a member of the Committee on Damp Indoor Spaces and Health of the Institute of Medicine, which produced the 2004 IOM Report. Dr. Ammann states that in the Report, the association between damp spaces and microbial growths and products with respiratory illnesses and asthma was examined, and determined "to be sufficiently strongly associated . . . to be declared a significant public health problem warranting appropriate action." (Ammann Aff., para. 4 [P.'s Ex. 11].) (It is noted that Dr. Ammann also gave evidence in Fraser.) The 2002 ACOEM Statement acknowledges that "[m]olds and other fungi may adversely affect human health through three processes: 1) allergy; 2) infection; and 3) toxicity." (ACOEM Statement at 470 [Defs.' Ex. KK].) The Statement notes that "mold is likely to sensitize and produce allergic responses in allergic individuals." (Id. at 476.) However, as previously discussed, it observes that causal association between indoor molds, particularly mycotoxins, and illness "remains weak and unproven." (Id. at 475.)