Reshevsky v United Water NY, Inc.

[*1] Reshevsky v United Water NY, Inc. 2005 NY Slip Op 52376(U) [21 Misc 3d 1108(A)] Decided on December 6, 2005 Supreme Court, Rockland County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2005
Supreme Court, Rockland County

Norma Reshevsky, Malke Reshevsky and Joel Reshevsky, Plaintiffs,

against

United Water New York, Inc., Defendant. SYLVIA R. RESHEVSKY, Plaintiff, UNITED WATER NEW YORK, INC., Defendant.



SYLVIA R. RESHEVSKY, Plaintiff,

against

UNITED WATER NEW YORK, INC., Defendant.



4323/01



Heidell, Pittoni, Murphy & Bach, LLP

Attys. For Deft.

99 Park Avenue

New York, New York 10016

Shandell, Blitz, Blitz & Bookson, LLP

Attys. For Pltfs.

150 Broadway, 14th Fl.

New York, New York 10038

Mary H. Smith, J.

This is an action to recover for personal injuries and property damages allegedly sustained by plaintiffs, according to their bill of particulars, as a result of toxic mold which they contend was caused by defendant's negligent maintenance, installation, testing and inspecting of a water meter that resulted in water leaking into plaintiffs' house.[FN1] Defendant is now moving for summary [*2]judgment dismissing the complaint, arguing that the action is time-barred by CPLR 214-c and further arguing that there is no evidence of any negligence by defendant, that there is no evidence that any negligence of defendant caused the water leak and that there is no evidence that any water leak caused the toxic mold condition in the house and, further, that plaintiffs are unable to satisfy the Frye standard of admissibility for their purported scientific proof to the contrary. In the event that summary judgment is not granted, defendant alternatively requests that a Frye hearing be conducted on the admissibility of plaintiff's expert proof.

According to the examination before trial testimony of plaintiff Malke Reshevsky, in approximately the early summer of 2000, she and her family discovered what ultimately was learned to be toxic mold growing on her family room wall. Not realizing at first what was the problem with their wall, they just continued to observe same for months. It appeared that whatever it was, it was spreading and included dimensional flower-like growths, i.e. mushrooms. In or about November, 2000, Malke spoke to Joseph Danilczyk, principal of Green Circle Solutions, an environmental-based business involved with mold remeditation/cleanup. Shortly thereafter he personally inspected plaintiffs' house and removed samples for lab studies. Mr. Danilczyk had determined that water in the crawl space caused the mold in the family room. He did not observe any water leak at that time and indeed did not know what had caused the water. Although he observed the subject water meter, he had not inspected same. Positive lab findings ensued showing "an over abundance of toxic mold," and plaintiffs thereafter discussed with Green Circle the costs associated with the necessary cleanup. Plaintiffs were very concerned with the prospective high costs associated therewith and the fact that, at that time, the source of the mold still was unknown; plaintiffs were undecided with respect to what they should do. They tried to educate themselves on the mold issue and spoke often with Green Circle about their options. In June, 2001, plaintiffs finally hired Green Circle to perform the cleanup on plaintiffs' house by starting in the family room and adjacent crawl space area, removing therefrom all of the contents and building material. Due to the high cost, plaintiffs limited the clean up to these areas. However, plaintiffs contend that there existed toxic mold in other areas of their house, including an adjacent utility room and bathroom. After the first day's work, which resulted in a finding of extensive damage and standing water, Green Circle reported to plaintiffs that the source of the problem was "a defective water meter located in the den," which had a "tiny pinhole crack." Malke was informed, based upon the discovered extent of the mold, that the problem in the house had been occurring over the past 12 to 20 years.[FN2] According to Malke, she and Green Circle had "discussed ... at length" whether there could be any alternative source of the problem other than the water meter and she was told that "everything else was in perfect order" and there were "no other potential causes anywhere."

Although plaintiffs had contacted their homeowner insurer about putting in a claim for their [*3]damages, said claim ultimately was denied based upon a policy exclusion.

Following the limited cleanup undertaken by Green Circle, defendant replaced the water meter.

According to Malke, presently 48 years old, she first had consulted a physician in August, 2001, concerning physical symptoms she claims to have been experiencing since the spring, 1999, and thereafter she consulted a number of other physicians for her myriad of complaints, including among others, as testified to and as listed in her bill of particulars, a variety of skin maladies, frequent, severe migraine headaches, seizures, sensitivity to temperatures and chemicals, swelling in joints, hair loss, muscle leg pain, areas of numbness, tremors, double vision, lack of equilibrium, throat irritation, nose pain, chronic nose bleeds, nasal discharge, heart palpitations, asthma, shortness of breath, memory lapses, impaired learning, nausea, vomiting, gastric distress, thyroid disease, menstrual irregularities, yeast infections, urinary incontinence, eye pain and itching, blurred vision, light sensitivity, ear ringing, loss of hearing and extreme fatigue. Malke denied having these symptoms or the extent of these symptoms prior to 1999.

Each of the other plaintiffs either offered testimony that is consistent with Malke's foregoing testimony or testified that they did not have information or knowledge of same. Each also testified to their own medical histories and personal complaints. Presently 57 years old Joel Reshevsky had testified and pleads in his bill of particulars that he suffers from, among other things, skin ailments, hypersensitivity to chemicals and to temperatures, arthritis, wheezing, asthma, sinusitis, nose and throat pain, nasal discharge, chronic cough, chest pain, insomnia and mental anguish and depression.

Presently 82 year old Norma claims, among other things, that she suffers from chronic fatigue syndrome, dizziness, thyroid disease, tinnitus, hearing loss, impaired learning, memory impairment, sinusitis, arthritis, muscle weakness, skin pain, varicose veins, insomnia and mental anguish.

Plaintiff Sylvia, presently 63 years old, claims, among other things, that she suffers from asthma, chronic coughing, urinary incontinence, bronchitis, significant cognitive deficits, memory loss, impaired learning, slowed speech, brain irritability, dizziness, immune disorders, blood disorders, nose bleeds, hearing loss, skin maladies, sinusitis, headaches with eye pain, hypersensitivity to chemicals and smells, fatigue hypothyroidism, hair loss and anxiety.

Mr. Danilczyk of Green Circle was also deposed. He gave detailed testimony regarding Malke's having contacted him, his initial house inspection, the testing he undertook and those findings, his visual observations, including that there was several inches of standing water in the crawl space, and the undertaken clean up process. According to Mr. Danilczyk, he was informed on or about June 19, 2001, by his supervisor at the Reshevsky cleanup job, Jack "Winston" Forde [FN3], that the source of the water leak was the water meter, which was "cracked," causing "a trickle water leak." When asked whether his company had undertaken any other measures to determine the possible sources of the water damages, Mr. Danilczyk replied that they did, they had "emptied the entire space and removed all the pertinent building materials from the crawl space and the den. So if there were any other sources of water leak or infiltration or signs of something similar, we would have observed it. We did not." Further, Mr. Danilczyk testified that after they had dried out the area, Mr. Ford reported to him that there again was an accumulation of water in the area where the water [*4]meter was located. Although Mr. Danilczyk could not state that any one from United Water had informed plaintiffs that the water meter was leaking, United Water's worker "came and determined it needed to be replaced and it was replaced and the source of the water was eliminated ..." Mr. Danilczyk's company's bill for the cleanup services rendered to plaintiffs was $17,500, which they paid. The projected cost of the complete house and possession cleanup would be an additional $35,000. Plaintiffs did not hire his company for further cleanup.

Winston Forde, Green Circle's cleanup supervisor at plaintiffs' house, also gave deposition testimony. During the cleanup of the Reshevsky's family room and crawl space, he had felt water on the pipe connected to the water meter located in the den area of the premises. Specifically, he placed his hand under the pipe couplings that attached to the water meter and that is where he felt the water dripping; he never observed any leaking or spraying water from the meter itself. He claimed to have dried the entire floor area and the water meter and pipe several times and thereafter discovered the floor and pipe to again be wet; he did not recall whether the water meter was wet again.

John F. Ramundo was deposed on behalf of defendant. He testified that in 1990 he worked on the H.O.M.E.R. Project, which is a hands-off meter reading project which allows for automatic reading over the telephone. He supervised that department in 2001. He also testified that there is a mandate by the Public Service Commission that meters must be changed every 15 years, that there is a computerized system which has information on the age of every meter and the meters generally are changed by appointments. However, he was not aware of any implemented program to ensure that meters in fact were changed every 15 years. Mr. Ramundo testified that the Reshevsky correspondence file included a note that a meter changer had been at their premises on June 29, 2000, and left a note when no one answered the door. His visit was not on any emergency basis but solely due to the age of the water meter. There was no record that any follow up was undertaken by defendant. Mr. Ramundo also testified that where a water bill is based upon estimate for a certain number of time per quarter, a notice of some kind is generated on the actual water bill advising the homeowner that an actual physical visit is required and a $25.00 assessment is imposed for the inability to do actual readings.

With respect to plaintiffs' water meter that had been removed on June 19, 2001, Mr. Ramundo testified that it first had been installed in September, 1972. Mr. Ramundo also testified that he had gone to the Reshevsky house on June 19, 2001, and walked through the family room and observed the crawl space; he did not observe any leak coming from the water meter at that time and he did not test the meter at that time. He also had reviewed his workers' notes from the June 19, 2001, service call for a "leaky meter" call.

Defendant now is moving for judgment dismissing this complaint. Firstly, defendant notes that it is a privately-owned water utility that is regulated by the Public Service Commission ("PSC"). As a public utility company, defendant must file a tariff, i.e., its rate schedule, with the PSC. Defendant had submitted its tariff to the PSC on May 21, 1996, and same was effective on the relevant dates here in issue. It provides that "The terms and conditions of this [tariff], as permitted to be modified from time-to-time by the Public Service Commission, shall constitute the contract between the customer and the Company and shall bind and insure to the benefit of the heirs, executors, administrator's successors, or assigns, as the case may be, of the respective parties thereto." Section 8.4 of the Water Tariff provides a limited liability clause: [*5]

Liability of Company "[e]xcept as to the liability,

if any, imposed by law, the Company will not be

liable for any injury, casualty or damage resulting

in any way from the supply or use of water service

or from the presence or operation of Company's

structures, equipment, pipes, appliances or devices

on the customer's premises, or from the use of any

equipment or materials installed in conformity

with the Company's requirements or recommendations.

Pursuant to this tariff, defendant maintains that it cannot be held liable for any injuries or damages set forth in plaintiffs' complaints since there are no allegations of gross negligence or wilful misconduct.

In any event, defendant further argues that under the regulations it is responsible only for certain portions of the water line. Specifically, it contends that inside a person's property line, it is responsible only for the water meter itself and the property owner is responsible for installing and maintaining all the additional piping, fittings, valves, pipe couplings and washers to receive the water. Although plaintiffs allege in their pleadings that their damages and injuries were caused by a leak from the water meter, defendant notes that the testimony of Winston Forde makes clear that he had felt the leak coming from under the pipe coupling that attached to the water meter; he had not testified that he saw water leaking from the water meter. Also, defendant notes that its own representatives had gone to plaintiffs' house immediately following plaintiffs' complaint on June 19, 2001, and they had examined the water meter and did not observe any water leaking therefrom; indeed, the tested water pressure was measured to be operating at full.

Defendant argues that while the water meter was in fact removed from plaintiffs' premises, the removal was due to its old age only and not for any observed leak or malfunction. Defendant's representative John Ramundo had testified that he tested the meter at defendant's facility for a standard five minute residential use water pressure test and there was no water leaking from the meter. The fact that plaintiffs' own expert had tested the subject water meter two years after its removal and had discovered that it was leaking at that time simply is not relevant to its condition two years earlier, according to defendant's water meter tester Harvey Culver because, due to lack of use, it would be expected that water would spray out of the gear train and weep hole. He explains in his supporting affidavit that rubber and cardboard packing are located inside the water meter which, when the meter is hooked up, swell from water, preventing water from emerging from the meter. Once, however, the meter is disconnected, as here occurred, the rubber and cardboard packing dry out and shrink, thereby allowing water to freely flow out of the meter at a rapid pace. That is what he claims occurred at the time that plaintiffs' expert undertook his testing of the subject water meter two years after its removal.

Accordingly, defendant argues that any leak which may in fact have existed at plaintiffs' house was not due to any observed leak in the water meter itself, and thus any leak from pipe coupling was plaintiffs' own responsibility.

Further, defendant submits that any alleged violation of Section 500.1 of the Public Service Commission Rules and Regulations, which section requires the replacement of meters after a set [*6]interval of time, is entirely irrelevant because that regulation was solely concerned with consumer protection with respect to accurate billing and has nothing whatsoever to do with negligence.

Additionally, defendant argues that it in any event cannot be responsible for the injuries and damages alleged because it lacked timely notice of the allegedly leaking water meter. According to United Water, the record at bar establishes that the first notice it received occurred on June 19, 2001. Prior thereto, defendant's records demonstrate that it last had been at the residence to read the meter for billing on September 4, 1998. Thereafter, plaintiffs either had refused defendant access to the house to read the water meter or had failed to contact defendant for any follow-up; bills were generated on an estimated basis only. There is no record of any complaint by plaintiffs to defendant for the period of September 4, 1998 through June 19, 2001. Thus, defendant argues, not only was the water meter not leaking but, even if it was, defendant had no prior notice thereof and therefore cannot be liable therefore.

Defendant also proffers an affidavit from Michael North, a professional engineer, who examined plaintiffs' premises in November, 2003. After his site examination, it his professional opinion within a reasonable degree of engineering certainty that the alleged water-related mold was not caused by any leak in the water meter and that the surrounding topography of the house reveals two sources of moisture that "certainly introduced water into the house and several significant structural defects in the construction of the house which could also have caused and/or contributed to a water/moisture condition ..." He notes that the roof had been repaired within six months to a year of his inspection and there was "conclusive evidence of prior water stains from a leak in the roof and ... from a condition known as ice damming." He notes that the walls of the crawl space showed evidence of water stains caused by large quantities of water running down the roof.He opines to a reasonable degree of engineering certainty that it "it would be impossible for the area of the water meter located on the floor of the den to create such a water damage pattern on the crawl space walls remote from and higher than the meter.

Mr. North further opines "to a reasonable degree of engineering certainty that there was moisture and other combustion products being introduced into the house from a failing hot air furnace in the recent past."

Mr. North also identified as a "likely source of water" the driveway, which he found pitched towards the house, with insufficient drainage near the house to prevent water accumulating and entering the house foundation. Another "likely source" was that the house was built on ground with a periodic high water table, "which further contributes to the water and/or moisture condition in the subject house." Mr. North also notes that the house is built on a slab, which improperly was not located below frost level, resulting in spring thaws and seasonal rains "quite probably" causing a water condition in the house. Also, this slab is stated to provide another mechanism for the pooling and channeling of water into the house, Mr. North having noted a moisture problem around the exterior steps.

Another reason for dismissal of the personal injury portion of the complaint, according to defendant, is the three year statute of limitations provided in CPLR 214-c. Plaintiffs have alleged that the water meter had leaked from at least since 1997, which was the primary condition upon which plaintiffs' claims are based; therefore, defendant argues that, as determined by case law, the commencement of this action in July, 2001 was untimely for any personal injury claims where plaintiffs all had testified and their respective medical records support the findings that their physical [*7]complaints had started more than three years prior to the commencement, notwithstanding that plaintiffs had not discovered the mold allegedly caused by the water until 2000.

Moreover, defendant urges that it is entitled to dismissal of the complaints because plaintiffs have failed to and cannot proffer admissible expert evidence which meets the Frye standard of admissibility that mold exposure caused these plaintiffs' medical complaints and conditions. Relatedly, defendant also argues that plaintiffs have not established that their claimed injuries were proximately caused by their mold exposure, particularly where all plaintiffs had physical complaints which date back years before [FN4] and, further, each recently had been administered allergen tests and all had tested negatively to various molds. In support of its contention, defendant has submitted an affidavit from Dr. Howard M. Kipen, a board certified physician specializing in Internal Medicine and Environmental and Occupational Medicine. After reviewing the pleadings, the bills of particulars, the independent medical reports and plaintiffs' medical records, he opines with a reasonable degree of medical certainty that "there is insufficient evidence in plaintiffs' medical record to support plaintiffs' contention that exposure to mold occurred which adversely affected their respective health or otherwise exacerbated an underlying condition.'" Dr. Kipen states that there is no evidence that they suffer from any ongoing permanent clinical disease other than thyroid dysfunction, which in his professional opinion, based upon a reasonable degree of medical certainty and current scientific evidence, is not caused by exposure to mold. Further, Dr. Kipen adds that mold also does not cause impaired immune dysfunction, tinnitus, arthritis, enzyme deficiencies, menstrual dysfunction, anorexia/weight loss in the absence of Hypersensitivity Pneumonitis, yeast infections, urinary incontinence, swelling of extremities, leg pain, nausea, vomiting, diarrhea, cramping, abdominal pain, gastroenteritis, hair loss, hypersensitivity to temperature or odors, about which these plaintiffs complain. Moreover, it is notable that Dr. Kipen states that there is no evidence in plaintiffs' medical records that they have allergies to the molds to which they were [*8]exposed or that they suffer from respiratory problems or asthma related to any mold exposure. While Sylvia and Malke, to a lesser extent, also allege neurological impairment and cognitive deficits, Dr. Kipen states that Slyvia's neurological examination revealed no deficits and that, in any event, "it is not commonly accepted within the medical community that exposure to mold causes human cognitive deficits or affects the central nervous system." Further, he notes that Sylvia's medical records establish that her memory complaints date back to 1996, thus pre-dating her claimed mold exposure. Neurological examinations performed on Sylvia and Malke by neurologists Raymond H. Coll were both normal.

In sum, Dr. Kipen finds that there is no evidence in the record and no acceptance within the medical community to support these plaintiffs' claims that mold exposure caused any of their alleged physical ailments and conditions or complaints.

Finally, defendant argues that it is entitled to summary judgment dismissing plaintiffs' property damage claims because they have failed to furnish any bills, photographs or appraisals for the allegedly damaged/destroyed items, they have failed to submit professional bills for which they seek reimbursement, there is no basis for plaintiffs' claim for recovery of attorney's fees, and, with the exception of plaintiff Sylvia who did not bring a claim for property damage in her complaint, none of the plaintiffs made alternative living arrangements for which they would be entitled to reimbursement of living costs, instead having chosen to remain in the premises throughout this period.

Plaintiffs vigorously oppose the motion in all respects, arguing that the subject tariff, by the inclusion of the language "imposed by law," fails to limit defendant's liability, that issues of fact remain regarding whether it was a crack in the water meter or something else that had caused the crawl space to fill with water, that defendant's violation of 16 N.Y.C.R.R. Section 500.1 is evidence of negligence that a jury is entitled to consider, that defendant had constructive notice of the water meter problem, that only some of plaintiffs' physical complaints are time-barred - not all - and that the deposition testimony of Mr. Danilczyk and Mr. Forde and the affidavit of E. Neil Schachter, are sufficient to establish causation under Frye. Plaintiffs argue, based upon the record, that "there can be no question that the water meter in the Reshevsky's home was the source of the water that caused the mold contamination" and plaintiffs' expert proof demonstrates that their injuries were proximately caused by their toxic mold exposure.[FN5]

Firstly in opposition to defendant's motion, plaintiffs' all submit affidavits wherein they refute Mr. North's "guesswork" regarding alternative causes for the water in their house, and state that they never observed water enter the den or crawl space following a rainstorm and there were no instances of serious flooding caused by any appliances or toilets or air conditioners. Additionally, they all aver that the roof repair had nothing to do with leaks but rather was necessitated by hail storm damage which was caused in 1997, and for which plaintiffs were covered by their insurance policy. Plaintiffs [*9]deny that defendant was denied access to their house since 1998; rather, they state that Norma was almost always home but moved slowly to answer the door. Further, they state that they never received any notice from any representative of defendant and that defendant never scheduled an appointment with them to come and change the water meter. They note that other service personnel regularly came to their home between 1998 and 2001. Sylvia, in her affidavit, withdraws her claim of pleurisy and concedes that her dermatological and cellulitis complaints are time-barred. Malka also claims in her affidavit that her weight loss was improperly included in her bill of particulars as a claim and that it should be withdrawn. Joel in his affidavit concedes that his claim for dermatological injury is time-barred. Norma withdraws in her affidavit as time-barred her claims for varicose veins and vision problems.

Plaintiffs also submit an affidavit from Mr. Danilczyk, wherein he states that he is a California Registered Environmental Assssor. Therein, based upon his personal observations of the Reshevsky's house, his experience in field work, conversations with the Reshevskys and his employees, it is his opinion "that the extensive mold contamination at the subject premises was caused by a long-term chronic leak, the origin being the water meter present at the premises." His opinion further is stated to be based upon his own investigation of other potential sources of water entry to the den and crawl space and, having found no other potential source of water ingress, he "state[s] with certainty that the leaking meter ... was the sole cause of the standing water, which in turn caused the extensive mold contamination."

Plaintiffs also have submitted an affidavit from Neurologist Wayne A. Gordon, wherein he affirms his reports related to examinations of Slyvia dated October 31, 2002, and March 26, 2004, respectively, that Slyvia's "reductions in cognitive functioning cannot be accounted for by depression and are secondary to exposure to fungi and mold" and that "[t]he results of this evaluation reveal that secondary to exposure to mold in her residence, Ms. Reshevsky continues to exhibit cognitive deficits across domains including auditory and visual memory, reduced attention, processing speed, verbal comprehension, abstract thinking that required set shifting and cognitive flexibility."

Additionally, they have submitted an affirmation from E. Neil Schacter, a physician Board certified in Internal Medicine, Pulmonary Medicine and Critical Care Medicine. He has examined and treated Sylvia since 2002. Based upon studies administered to her, he opines "to a reasonable degree of medical certainty that Sylvia Reshevsky's restrictive airway disease was proximately caused by her exposure to toxic mold in her home" and that her symptoms persist and are permanent.

The other plaintiffs Dr. Schachter had examined only one time each. He diagnosed Malke, in 2002, as suffering from environmental asthma. It is his opinion to a reasonable degree of medical certainty that same is a permanent condition and was proximately caused by exposure to mold in her house. Dr. Schachter had examined Norma in 2002, and at that time he diagnosed her as suffering with reactive airway disease. It is his opinion to a reasonable degree of medical certainty that same is a permanent condition and was proximately caused by exposure to mold in her house. Dr. Schachter had examined Joel in 2002. He diagnosed him as suffering with environmental airway irritation. It is his opinion to a reasonable degree of medical certainty that same was proximately caused by exposure to mold in his house. He notes that none of the plaintiffs had experienced any respiratory difficulties for several years prior to their mold exposure.

It is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. The proponent of a summary judgment motion must [*10]make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See, e.g., Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1990); Zuckerman v. City of New York, 49 NY2d 557 562 (1980). Although the papers are carefully scrutinized in the light most favorable to the party opposing the motion, see Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978), bald, conclusory assertions and the "shadowy semblance of an issue" are insufficient to defeat a summary judgment motion. Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 (1970); see, also, S.J. Capelin Associates v. Globe Mfg. Co., 34 NY2d 338 (1974); Blankman v. Incorporated Village of Sands Point, 249 AD2d 349 (2nd Dept. 1998). Rather, it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and capable of being established upon a trial." DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, S. J. Capelin Associates v. Globe Mfg. Co., supra; Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971). "While negligence cases do not generally lend themselves to resolution by motion for summary judgment, such a motion will be granted where the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party (citations omitted)." Cummins v. Rose, 185 AD2d 839 (2nd Dept. 1992).

Although the Court understands defendant's first argument that the inclusion of an intended limitation of liability clause in the tariff precludes this action, it cannot agree with defendant's contention that the inclusion of the terms "imposed by law""clearly refers to statutory provisions, [and] not the entire general body of uncodified case law as argued by plaintiffs' counsel." While manifestly it had been defendant's intention to include a limitation liability clause in the tariff which precluded claims for ordinary negligence, such as that presented at bar, this Court cannot agree that defendant successfully had accomplished same; thus, defendant cannot rely upon same herein as a basis for judgment dismissing plaintiffs' claims.

Notably, all of the cases upon which defendant relies in its moving memorandum of law had included, which is absent here, express clear limitations either that liability would not be imposed based upon "ordinary negligence", see Lee v. Consolidated Edison Co. Of New York, 98 Misc 2d 304 (App. T. 1978), or was limited to instances of gross negligence or wilful misconduct." See Abraham v. NY Telephone Company, 85 Misc 2d 677 (NY Civ. Ct. 1976); see, also Lauer v. NY Tel. Co., 231 AD2d 126 (3rd Dept. 1997). Defendant cites no case law in its replying memorandum of law which supports its arguments that plaintiffs' negligence claims are precluded based upon the same or similar language as that found in the tariff at bar. Moreover, given at least the arguable ambiguity of the instant tariff liability language, same must be strictly construed against defendant as the drafter thereof. See Lauer v. NY Tel. Co., supra, p. 128 (3rd Dept. 1997).

The Court, however, does find merit to defendant's argument that defendant is not liable for the leak in question based upon the absence of any admissible evidence that the water meter for which defendant was responsible in fact had been leaking. The Court finds that defendant prima facie has demonstrated that the leaking water was coming, not from the water meter itself, but from the pipe coupling leading to the water meter, and that defendant is not responsible for the maintenance of such coupling and/or pipe pursuant to the express terms of the tariff, specifically [*11]section 7.1(B) thereof. Since plaintiffs have failed to raise a triable issue of fact with respect thereto, the Court necessarily finds that defendant is entitled to summary judgment dismissing the complaint.

This specific identification of the water source is of the utmost importance because pursuant to the tariff, plaintiffs are responsible for the maintenance of the pipe and coupling. A careful reading of Mr. Forde's examination before trial testimony revels that although he loosely had testified several times that the meter was leaking, he never testified that he actually observed the water leak to be coming from the water meter itself, as opposed to his having felt water coming from the underneath of the pipe next to the coupling leading into the water meter.[FN6] Moreover, he specifically had testified that after drying the area, he had returned shortly thereafter to find the area and specifically the pipe again wet, but that he did not recall that the water meter itself was wet. See Exh. "J" p. 34. Although Mr. Danilczyk gave hearsay testimony upon which plaintiffs exclusively rely, that Mr. Forde had told him that he had found a crack in the water meter from which the water was leaking, not only did Mr. Forde himself not testify that he had observed any crack in the water meter, but plaintiff's own expert had examined the removed water meter and notably there is no mention of his discerning any crack in it. To the contrary, defendant's employees have offered testimony that the water meter, immediately after its removal from plaintiffs' house, had been run through tests and there was no evidence of any spraying or leaking water. While plaintiffs' expert did experience the water meter leaking during the testing he had performed two years after its removal, plaintiffs failed to rebut defendant's expert's explanation as to why leaking would be expected at that time once the interior rubber and cardboard packing had dried out. Thus, the irrefutable fact is that not one person, including plaintiffs, specifically had testified that s/he actually had observed water leaking from the water meter at the time the mold problem arose.

In light of the Court's granting of summary judgment to defendant on the basis of this issue, the Court declines to address the remainder of the legal issues raised.

This action is hereby dismissed.

Dated: December 6, 2005

New City, New York

_________________________________

MARY H. SMITH [*12]

J.S.C.

Heidell, Pittoni, Murphy & Bach, LLP

Attys. For Deft.

99 Park Avenue

New York, New York 10016

Shandell, Blitz, Blitz & Bookson, LLP

Attys. For Pltfs.

150 Broadway, 14th Fl.

New York, New York 10038 Footnotes

Footnote 1:By Decision and Order, dated August 5, 2002, this Court (Bergerman, J.) had conditionally consolidated the above two actions subject to defendant s "settl[ing] an order of consolidation on notice before the undersigned" for the August 29, 2002, conference. This does not appear to have been done.

Footnote 2:During his deposition, Green Circle's principal had testified that he believed that the water problem in the den and crawl space had existed for "months or years."

Footnote 3:Mr. Danilczyk referred to him at his deposition as "Jack," but his name as stated at his deposition is actually Winston.

Footnote 4:Joel Reshevsky's medical records state that he complained of wheezing in 1988 and was diagnosed with acute bronchitis and asthma twenty years ago. Also, he had experienced sore throats and difficulty sleeping for the past ten years. Malke Reshevsky's medical records indicate that she had made complaints of migraine headaches, excessive weight loss and abnormal menstrual cycles in 1993 and her medical records from 1994 show that she complained at that time of arthritis, fatigue, weight loss and migraines. She had been treated in 1994 for goiter on her thyroid gland and for menometrorrhagia. Norma Reshevsky had complained in 1991 of worsening eye vision and had been diagnosed with varicose veins in 1986. Sylvia Reshevsky had testified that her dermatology complaints started in 1997 and her medical records indicate that she was diagnosed at that time with dermatitis and psoriasis. She also had complained at that time of various food and chemical allergies. Sylvia's medical records also state that she had been diagnosed with thyroid problems in 1996 and that she had complained at that time of memory problems and cognitive defects.

Footnote 5:Plaintiffs note that, due to the Court's imposed time constraints for the return date of this motion, they were unable to get Dr. Eckardt Johanning, a physician Board Certified in the specialities of Family practice and Occupational and Environmental Medicine, who actually diagnosed and treated plaintiffs, to submit an affidavit in opposition.

Footnote 6:Mr. Forde was asked repeatedly to identify where exactly he felt and/or observed the water was coming from and he failed to specifically answer the precise questions. See Exh. "J", pp. 25-27. When asked, "The place where you put your hand under was where this nipple hits the water meter but not under the water meter where the base is?" to which Mr. Forde replied, "Not under the water meter itself but between here, the connection there and the water meter."