O'Brien v Citizens Ins. Co. of Am.

[*1] O'Brien v Citizens Ins. Co. of Am. 2007 NY Slip Op 51527(U) [16 Misc 3d 1120(A)] Decided on August 6, 2007 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2007
Supreme Court, Suffolk County

Dennis A. O'Brien, Delora O'Brien, Jenna O'Brien, Dennis O'Brien, Jr. and Elissa O'Brien, by Her Parents and Natural Guardians, Dennis A. O'Brien and Delora O'Brien, Plaintiff(s),

against

Citizens Insurance Company of America, Alexander Wall Corp., H2M Labs, Inc. and Holzmacher, McLendon & Murrell, P.C., Defendant(s).



20049-2003



Wilkofsky Friedman, Karel & Cummins

Attorneys for Plaintiffs

299 Broadway, Suite 1700

New York, New York 10007

Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP

Attorneys for Deft Citizens Insurance

225 Broadway

New York, New York 10007-3088

Milber, Makris, Plousadis & Seiden, LLP

Attorneys for Deft Alexander Wall Corp.

1000 Woodbury Road Suite 402

Woodbury, New York 11797-2511

L'Abbate, Balkan, Colavita & Contini

Attorneys for Deft H2M Labs Inc. and Holzmacher, McLendon & Murrell

1050 Franklin Avenue

Garden City, New York 11530

Lord, Bissel & Brook, LLP

Attorneys for Deft RTP Environmental

885 Third Avenue, 26th Floor

New York, New York 10022

Peter H. Mayer, J.

ORDERED that the branch of the motion (004) by the defendant, H2M Labs Inc., which seeks an order granting it summary judgment and dismissing the plaintiffs' complaint and all cross-claims, is considered under CPLR §3212 and is hereby denied; and it is further [*2]

ORDERED that the branch of the motion (007) by the defendant/second third-party plaintiff, Alexander Wall Corp., which seeks an order granting it summary judgment and dismissing the plaintiffs' complaint, is considered under CPLR §3212 and is hereby denied; and it is further

ORDERED that the branch of the motion (007) by Alexander Wall Corp. which seeks an order for default judgment against the second third-party defendant, Meticulous Onsite Soot Service (hereinafter "METICULOUS"), is considered under CPLR §3215 and is hereby denied; and it is further

ORDERED that the motion (006) by the defendant/third-party plaintiff, Citizens Insurance Company of America, which seeks an order granting it summary judgment and dismissing the plaintiffs' complaint and all cross-claims, is considered under CPLR §3212 and is hereby denied; and it is further

ORDERED that the branch of the motions by H2M Labs, Inc. (004) and Alexander Wall Corp. (007) WALL regarding the admissibility of the alleged diagnosis known as Multiple Chemical Sensitivity Syndrome is hereby decided to the extent that the Court shall conduct a "Frye" hearing, the date of which shall be scheduled at the time of the August 7, 2007 compliance conference (see, Frye v United States, 54 App DC 46, 293 F 1013 [Ct App DC 1923]; People v Wesley, 83 NY2d 417, 611 NYS2d 97 [2004]); and it is further

ORDERED that the plaintiffs' motion (005) to strike Alexander Wall Corp.'s answer pursuant to CPLR §3126 is decided to the extent that the Court shall conduct a sanctions hearing, the date of which shall be scheduled at the time of the August 7, 2007 compliance conference, for purposes of determining whether and to what extent a sanction should be imposed upon WALL; and it is further

ORDERED that counsel for the plaintiffs shall serve a copy of this Order upon all parties, or their attorneys if represented by counsel, within ten (10) days from the date of this Order pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, a family of five, commenced this action for personal injury and property damage allegedly caused by faulty remediation work and air testing following an August 10, 2002 clothes dryer fire at the plaintiffs' residence, located at 250 Eastwood Avenue, Deer Park, New York. The fire required the evacuation of the family. The premises were insured by a policy issued to the plaintiffs by Citizens Insurance Company of America ("CITIZENS"). The plaintiffs' First Cause of Action alleges that CITIZENS breached its insurance contract with the plaintiffs. The Second through the Ninth Causes of Action essentially allege that all defendants were negligent in the clean-up and remediation of the fire, in that inappropriate harsh chemicals were used in the clean-up process, thereby rendering the plaintiffs' home uninhabitable and a total loss. The plaintiffs' Tenth Cause of Action alleges fraud against all defendants. [*3]

Following the fire, pursuant to its homeowners policy issued to the plaintiffs, CITIZENS retained the services of two independent contractors. Alexander Wall Corp. ("WALL") was retained to perform the clean-up and remediation of the premises, while H2M Labs, Inc. ("H2M") was retained to perform air-quality testing. On August 13, 2002, Jim Cavo of WALL and John Conlon of CITIZENS conducted a walk-through of the premises and recommended cleaning the walls, ceilings and floors. Between August 13, 2002 and August 14, 2002, WALL used various chemicals while performing its remediation services. After this first clean-up, the plaintiffs conducted a walk-through of the home with Mr. Conlon and Mr. Cavo, at which time an unpleasant odor was detected.

Because of the continued presence of the odor, ozone generators were placed in the home in an effort to alleviate the odor. Approximately four days later, the plaintiffs met again with Mr. Conlon and Mr. Cavo to conduct an additional inspection of the house, which revealed the continued presence of the odor. At that point, both CITIZENS and WALL, through Conlon and Cavo, agreed to send in a new clean-up crew to wash down the walls using different cleaning products and to use an iodizing machine to further alleviate the odor. Despite this additional clean-up effort, the plaintiffs continued to make complaints about the smell in their home. Concerned with the air quality, Jim Boos of CITIZENS contacted H2M on August 20, 2002 to retain H2M for the purpose of conducting air quality tests at the home.

Shortly after being retained by CITIZENS, H2M performed air quality tests, the results of which were documented in a written report, dated September 3, 2002 and authored by Charles Erlanger of H2M. Language in the report states that all levels of volatile compounds were within the guidelines issued by the World Health Organization ("WHO"), the Environmental Protection Agency ("EPA"), the Occupational Safety and Health Administration ("OSHA") and National Institute of Occupational Safety and Health ("NIOSH"). In addition, plaintiff Delora O'Brien testified that at a September 2002 meeting between the plaintiffs, Charles Erlanger of H2M, John Conlon of CITIZENS and Gary Alexander of WALL, Mr. Erlanger stated that the air quality was "nothing to worry about." A closer reading of H2M's report and its analysis of the WHO guidelines, however, reveal that the levels of the Volatile Organic Compound ("VOC"), toluene, were almost twice the amount acceptable under the WHO guidelines.

After the H2M report was issued, the plaintiffs conducted yet another walk-through of their residence and still noticed the odor, which plaintiff Delora O'Brien described as having the effect of "knives" in her nostrils. As a result of this walk-through, CITIZENS retained RTP Environmental Associates, Inc. ("RTP"), a former third-party defendant, to conduct a separate evaluation of the air samples. RTP found various inconsistencies in the H2M report, and confirmed only that the air quality was within the guidelines of the New York State Guideline values for 24 hour exposure limits. In October 2002, the plaintiffs contacted RTP and informed RTP that there was still an unpleasant odor in the residence. RTP then devised a course of action which included heating and ventilating the home for several days and placing pans of hydrochloride in the house in an attempt to absorb and eliminate the remaining odor. Thereafter, RTP conducted further tests and issued a report on March 21, 2003, indicating that all volatile organic compounds in the residence were within acceptable guidelines at that time. [*4]

In this action, the plaintiffs allege that misrepresentations were made to them regarding the air quality, which induced them to believe that their home was safe for occupation. According to the plaintiffs, based on these representations, Delora O'Brien continued to enter the home for various purposes between September 2002 and April 2003. The plaintiffs moved back into their house in April 2003 where they remained until June 2003, after which they moved out again with complaints that the problem still existed. The plaintiffs allege that the defendants' negligence and fraud resulted in serious respiratory injury and property damage.

It is well settled that the remedy of summary judgment is a drastic one and there is considerable reluctance to grant summary judgment in negligence actions (Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable since it deprives a party of his day in court (see also, Henderson v City of New York, 178 AD2d 129; 576 NYS2d 562 [1st Dept 1991]). Issue finding rather than issue determination is the key to this procedure (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]).

Issue finding rather than issue determination is the key to the procedure (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). Since summary judgment is the procedural equivalent of a trial, if there is any doubt as to the existence of a triable issue, or where a material issue of fact is even "arguable," summary judgment must be denied (Phillips v Kantor & Co., 31 NY2d 307, 338 NYS2d 882 [1982]); Rotuba v Cepcos, 46 NY2d 223, 413 NYS2d 141 [1978]; Freeman v Easy Glider Roller Rink Inc., 114 AD2d 436, 494 NYS2d 351 [2d Dept 1985]). Furthermore, the proof of the party opposing the motion must be accepted as true and considered in a light most favorable to the opposing party (Dowsey v Megerian, 121 AD2d 497, 503 NYS2d 591 [2d Dept 1986]; Museums at Stony Brook v The Village of Patchogue Fire Department, 146 AD2d 572, 536 NYS2d 177 [2d Dept 1989]; Matter of Benincasa v Garrubbo, 141 AD2d 636, 529 NYS2d 797 [2d Dept 1988]).

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person (Restatement [Second] of Torts § 876). Defendants are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result (Id., Comment a). The agreement need not be expressed in words, but may be implied and understood to exist from the conduct itself, and whenever two or more defendants commit tortious acts in concert, each becomes subject to liability for the acts of the others, as well as for his or her own acts (Id).

H2M'S REQUEST FOR DISMISSAL OF NEGLIGENCE CLAIMS

In its motion for summary judgment, H2M argues that it had no involvement with the actual [*5]remediation or clean-up process, which is the substantive basis of the plaintiffs' negligence claims. H2M also argues that subsequent retesting by RTP demonstrated that the air quality was, in fact, within acceptable guidelines, and that the plaintiffs could not have relied on H2M in moving back into the house, as evidenced by the fact that the plaintiffs did not move back in until April of 2003. Despite H2M's claims to the contrary, the evidence suggests that H2M did, in fact, take an active role in the recommendations for actions necessary to remediate the fire damage. These recommendations included use of a negative air machine, use of low VOC paints, painting the upstairs to "get the smell out" and use of a "HEPA" filter in the clean-up process. Although there is an apparent concurrence that contamination will not occur if a HEPA filter is used in conjunction with the negative air machine, there is no evidence from which the Court can divine that a HEPA filter was actually used in clean-up efforts in this case.

According to the affidavit of L. Brumley, plaintiff's disaster reclamation expert, if a negative air machine is used without also using a HEPA filter, indiscriminate contamination of a clean area may occur. It is not clear from the record whether or not a HEPA filter was used in this case. This presents questions of fact as to whether or not H2M ensured that a HEPA filter was, in fact, being used during the use of the negative air machine as recommended by H2M. Furthermore, the record contains evidence that negative air machines are not even ordinarily used in a residential setting. Therefore, another jury question exists as to whether or not H2M's recommendation to use a negative air machine in the first instance was proper under the circumstances. Contrary to H2M's assertions, the evidence also presents issues of fact for a jury as to whether or not H2M's involvement constituted a mere collection of air samples, or whether or not such activities rose to the level of active participation in the remediation process.

Additional questions of fact for a jury are presented by H2M's own report in this case. As previously stated, language in the September 3, 2002 H2M report states that all levels of volatile compounds were within the guidelines issued by WHO, EPA, OSHA and NIOSH. A close analysis of H2M's report, however, reveals that the levels of toluene in the plaintiff's home were nearly twice the acceptable levels set forth in the WHO guidelines. Furthermore, despite the representations set forth by H2M in Charles Erlanger's October 18, 2002 letter, and despite the representations made to the plaintiffs about the acceptability of the air quality, H2M's own Gary Miller, Mr. Erlanger's superior, testified that "the tabulated results [in the report] did not seem to correlate with the laboratory reports," and that Mr. Erlanger significantly under-reported the amount of toluene, such that the amount of toluene present was perhaps 44 times higher than that actually reported by Mr. Erlanger. In addition, the chemical carcinogens, benzene and styrene, were also all under-calculated by a factor of 3. This testimony raises questions of fact as to what the true levels of VOCs were in the home at the time of H2M's testing, as compared to the levels reported by Mr. Erlanger.

Evidence has also been adduced to indicate that the individual employed by H2M to collect and test the samples was not competent to do so. This individual admitted that he had never done any air quality testing before. Ken Skipta, principal of RTP, testified that an air sample collector should be "someone who has physically performed the test before," and that such testing requires a trained individual to be aware of the problems which may be encountered during the sample collection process. [*6]

Thus, the moving papers and the opposition thereto raise questions of fact as to whether or not H2M itself participated in the remediation process, and whether or not H2M aided the co-defendants as part of a joint process in remediating the plaintiffs' premises. Questions of fact also exist as to whether or not the remediation process, as well as the alleged suppression of the test results set forth in the September 3, 2002 report, were a substantial factor in causing injury to the plaintiffs. These questions of fact preclude summary judgment in favor of H2M as to the plaintiffs' negligence causes of action. That branch of H2M's motion which seeks dismissal of all cross-claims is likewise denied.

CITIZENS' REQUEST FOR DISMISSAL OF NEGLIGENCE CLAIMS AND BREACH OF CONTRACT CLAIM

In its motion, CITIZENS essentially argues that it is entitled to summary judgment because, as the plaintiffs' insurance carrier, it took no active part in the clean-up or remediation efforts following the subject fire. In support of this argument, John Conlon of CITIZENS, the insurance adjuster who adjusted the plaintiffs' insurance claim, essentially avers that he took no part in any remediation that was conducted, and that such remediation was first completed by WALL as an independent contractor. Mr. Conlon further avers that the air quality tests were done by H2M, which is also an independent contractor. CITIZENS claims, therefore, that liability cannot be imposed because employers are generally not liable for the negligence of their independent contractors (Kleeman v Rheingold ,81 NY2d 270, 598 NYS2d 149 [1993]); Broderick v Cauldwell-Wingate Co., 301 NY 182 [1950]).

Contrary to CITIZENS' assertions, plaintiff Delora O'Brien testified that Mr. Conlon of CITIZENS instructed WALL to remove the contents of the attic, take out the insulation, wash down all the rafters and install new insulation. Ms. O'Brien's testimony is, in part, supported by Mr. Conlon's own report of September 9, 2002, which states: "Instructed Alexander Wall to remove attic insulation and contents . . ." These instructions may justify an inference of control by CITIZENS over WALL as its independent contractor. Such issues raise questions of fact regarding whether, and to what extent, CITIZENS exercised control or supervision over the remediation work. Relevant evidence also shows that John Conlon of CITIZENS actually directed Jim Cavo of WALL to use ozone generators in the clean-up, and further directed where the generators were to be placed. Not only does such evidence raise additional questions of fact regarding CITIZENS' level of control, but may be found by a jury to constitute an independent act of negligence by CITIZENS.

The plaintiffs submit proof that defendant WALL, aided by CITIZENS, utilized an ozone machine, which is an oxidizer. The Material Safety Data Sheets ("MSDS"), required to be kept by WALL pursuant to OSHA regulations, state that the adverse effects of overexposure to ozone include "coughing, headaches, loss of appetite, drowsiness, [and] inflammation of the upper respiratory tract." These are among the same symptoms and injuries alleged by the plaintiffs. In addition, deposition testimony of WALL's Gary Alexander establishes that a de-greaser was used in the clean-up, which is contraindicated when an oxidizer is in use. Moreover, inasmuch as Mr. [*7]Conlon testified that he had no knowledge of what substances were used in the clean-up process, a jury could reasonably conclude that CITIZENS was independently negligent by ordering the use of ozone generators without knowing what chemicals had already been used in the clean-up effort. On this point, the plaintiffs' expert affidavit states that such an approach by CITIZENS would violate the standard of care required in fire remediation.

In further opposition to CITIZENS' claim of entitlement to summary judgment, the plaintiffs argue that the very nature of remediation work is inherently dangerous, thus making CITIZENS vicariously liable for the acts of WALL and H2M. As a general rule, a party will not be vicariously responsible for damages caused by the negligent acts or omissions of an independent contractor (Rosenberg v Equitable Life Assurance Society, 79 NY2d 663, 584 NYS2d 765 [1992]; Gravelle v Norman, 75 NY2d 779, 552 NYS2d 86 [1989]; Prosser and Keeton, Torts Sec. 71 [5th edition]; see also, Restatement [Second] of Torts § 409). The rationale behind this rule is that one who employs an independent contractor has no right to control the manner in which the contractor's work is to be done and, thus, the risk of loss is more sensibly placed on the contractor (Feliberty v Damon, 72 NY2d 112, 531 NYS2d 778 [1988]).

A number of noteworthy exceptions to the general rule, however, have been created in our common law jurisprudence. In fact, the Court of Appeals has found that the general rule "is now primarily important as a preamble to the catalog of its exceptions" (Kleeman v Rheingold, supra , [citations omitted]. The general rule of nonliability applies only where no good reason can be found for departing from it (id., [citations omitted]). Campos v Brooklyn Union Gas Company, 17 AD3d 500, 793 NYS2d 472 [2d Dept 2005]) is instructive on this issue. In Campos, the plaintiff pedestrian was injured when he tripped and fell on a patch of asphalt, which covered an excavation on the walkway outside this house in the area where a gas pipe had been installed by an independent contractor hired by the defendant company. The Court found that although the installer was an independent contractor, there was evidence at trial that the company was involved in the contractor's work, in that the company provided some materials and made spot checks of the installer's work. Therefore, the Court held that whether or not vicarious liability could be imposed on the company was a question of fact for the jury.

Contrary to the assertion of CITIZENS, the affidavit of John Conlon, as well as other proof submitted, the evidence clearly establishes that defendant WALL was retained by CITIZENS, not by the plaintiffs. There is also evidence that the aforementioned defendants jointly suggested a retention of another cleaning crew and that the other crew utilize new chemicals. Accordingly, there is sufficient evidence submitted to suggest that CITIZENS may have exercised a degree of control over WALL as its independent contractor.

It has also been stated that "[o]ne who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractors failure to take reasonable precautions against such danger" (Restatement [Second] of Torts § 427). Whether the work is inherently dangerous is normally a question of fact to be determined by the jury (Luksik [*8]v 27 Prospect Park West Tenants Corp., 19 AD3d 557, 796 NYS2d 535 [2d Dept 2005]). Here, CITIZENS had employed WALL on numerous occasions in the past for fire remediation. The question of what CITIZENS knew, or should have known about the properties of the chemicals used in the clean-up process, particularly if the jury ultimately determines that CITIZENS was actively involved in the placement of the ozone generating machines, is a question of fact for a jury.

Based on the evidence submitted, the Court cannot conclude as a matter of law that the use of potentially toxic chemicals in a residential dwelling is not inherently dangerous. Accordingly, the Court finds that questions of fact have been raised by the proofs submitted. Therefore, the motion for summary judgment by CITIZENS regarding Causes of Action Two through Nine, which sound in negligence against Citizens, must be denied.

CITIZENS also claims entitlement to summary judgment on the plaintiffs' First Cause of Action, which seeks damages for breach of the insurance contract it issued to the plaintiffs. In essence, CITIZENS argues that the insurance policy in question does not include any coverage for damages for acts attributable to third parties. In this regard, CITIZENS claims that the remediation work is the sole proximate cause of the plaintiffs' damages. CITIZENS further claims that WALL is a third party to the subject policy and that the policy does not afford coverage for acts performed by third parties. According to CITIZENS, therefore, since there is no coverage under such circumstances, CITIZENS did not breach the policy by denying coverage to the plaintiffs. It is to be noted, however, that where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed (Derdiarian v Felix Contr. Corp, 51 NY2d 308, 434 NYS2d 166 [1980]). In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence, and such question is properly reserved for determination by a trier of fact (Id.).

It is undisputed that the damage to the plaintiffs' home was the result of the August 10, 2002 fire, and that the remediation work was to clean up that fire damage. Section I - Property Coverages, Coverage A - Dwelling , of the subject policy expressly includes the plaintiffs' dwelling within the terms of property covered under the policy. Section I - Perils Insured Against, Coverage C - Personal Property also expressly states that the CITIZENS policy does insure the property for "direct physical loss" caused by fire. The question of what constitutes "direct loss" is equivalent to the question of what constitutes proximate cause (see, Granchelli v Travelers Ins. Co., 167 AD2d 839, 561 NYS2d 944 [4th Dept 1990]). A variety of factors may be relevant in assessing proximate cause and given the unique nature of the inquiry in each case, it is for the finder of fact to determine what constitutes proximate cause (Terry v Danisi Fuel Oil Co., Inc., 837 NYS2d 256, 2007 NY Slip Op 4623, [2d Dept 2007]; Goldsmith Motors Corp. v Chemical Bank, 838 NYS2d 631, 2007 NY Slip Op 5465 [2d Dept 2007]; Derdiarian v Felix Contr. Corp, supra ).

Moreover, since the subject insurance contract was drafted by the insurance company, any ambiguities therein regarding coverage are to be resolved against the insurer and in favor of the insured (Westview Assocs. v Guar. Nat'l Ins. Co., 95 NY2d 334, 717 NYS2d 75 [2000]; Nationwide Mut. Ins. Co. v CNA Ins. Co., 286 AD2d 485, 729 NYS2d 760 [2d Dept 2001]). Therefore, the Court concludes that CITIZENS' request for summary judgment on the plaintiffs' First Cause of [*9]Action for breach of contract is denied. Given the numerous questions of fact, CITIZENS' request for dismissal of all cross-claims is likewise denied.

WALL'S REQUEST FOR DISMISSAL OF NEGLIGENCE CLAIMS AND FOR DEFAULT JUDGMENT

With respect to its motion for summary judgment, WALL seeks dismissal of the plaintiffs' fraud cause of action and the derivative claims, arguing that New York does not recognize MCSS as a recoverable injury. WALL further argues that since the substantive causes of action sounding in negligence have no basis, those claims that derive from them cannot stand. WALL has also moved for a default judgment in the second third-party action against second third-party defendants METICULOUS and Gloria's Cleaning ("GLORIA'S"). In its Reply Affirmation, WALL withdrew its application for default against GLORIA'S and, therefore, that portion of WALL'S motion is marked withdrawn; however, WALL still seeks a default judgment against METICULOUS.

With regard to the proof necessary on an application for judgment by default, CPLR §3215(f) states, in relevant part, that "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney."

In support of its motion for default against METICULOUS, WALL failed to submit an affidavit by the party regarding the facts constituting the claim. Instead, WALL submits an affirmation by counsel, as well as a third-party complaint. While a verified complaint may be used in place of the required party affidavit, WALL's complaint is not verified by either counsel or the party. Even if it were verified by counsel, such a verified complaint amounts to no more than an attorney's affidavit and it is, therefore, insufficient to support the entry of judgment pursuant to CPLR §3215 (Blam v. Netcher, 17 AD3d 495, 793, NYS2d 464 [2d Dept 2005]; Beaton v Transit Facility Com., 14 AD3d 637, 789 NYS2d 314 [2d Dept 2005]; Henriauez v. Purins, 245 AD2d 337, 666 NYS2d 190 [2d Dept 1997]). In the absence of either a proper affidavit by the party or a complaint verified by the party, the entry of judgment by default is erroneous (see, Peniston v Epstein,10 AD3d 450, 780 NYS2d 919 [2d Dept 2004]; Grainger v Wright, 274 AD2d 549, 713 NYS2d 182 [2d Dept 2000]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Mullins v. DiLorenzo, 199 AD2d 218, 606 NYS2d 161 [1st Dept 1993]). Accordingly, WALL's motion for default against METICULOUS is denied.

PLAINTIFFS' FRAUD CAUSE OF ACTION

The plaintiffs' Tenth Cause of Action, in essence, alleges that the defendants suppressed and ignored the true H2M test results and that all defendants "jointly conspired to falsify their test results so as to make it appear that the premises was safe for habitation." New York does not recognize conspiracy to commit a tort as an independent cause of action (Ward v. City of New York, 15 AD3d [*10]392, 789 NYS2d 539 [2d Dept 2005]). New York does, however, recognize a cause of action for fraud based on concealment, where the party to be charged has superior knowledge or means of knowledge, such that the transaction without disclosure is rendered inherently unfair (see, Miele v American Tobacco Co., 2 AD3d 799, 770 NYS2d 386 [2d Dept 2003]; Stevenson Equip. v Chemig Constr. Corp., 170 AD2d 769, 565 NYS2d 318 [3d Dept 1991]; 60A NY Jur 2d, Fraud and Deceit § 98). Concealment with the same intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact (Nasaba Corp. v Harfred Realty Corp., 287 NY 290 [1942]).

To prove fraud in New York "the plaintiff must prove a misrepresentation or material omission of fact which was false and was known to be false by the defendant, made for the purpose of inducing the other to rely upon it, and the justifiable reliance of the other party on the misrepresentation or material omission and injury (Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 646 NYS2d 76 [1996]). H2M concedes that the September 3, 2002 report contains errors, but argues that, notwithstanding those errors, the evidence indicates that the VOCs in the home were within acceptable guidelines. The guidelines referred to throughout the proof submitted are from WHO, EPA, OSHA and NIOSH. The submissions by the defendant do not make clear which guidelines are applicable to residential dwellings. Nevertheless, there is evidence that certain VOC's, such as benzene and toluene, exceeded available workplace guidelines and that residential guidelines would be even more strict than those applicable to the workplace.

H2M argues that the fraud cause of action must be dismissed, since H2M did not have requisite knowledge that its September 3, 2002 report contained miscalculations; however, plaintiff Delora O'Brien testified that Charles Erlanger from H2M admitted to her in the driveway of her house in September 2002, following the initial clean-up efforts, that present in her house was the chemical, benzene, which is considered a carcinogen. This discussion is said to have been in the presence of John Conlon of CITIZENS and Gary Alexander of WALL. Although Mr. Erlanger of H2M had a copy of the report, he allegedly refused to share the results with the plaintiffs. CITZENS, H2M and WALL all participated in a general discussion of the air quality in the house, which included a representation that the air quality was safe when, according to relevant evidence, the report provided no such justification. H2M's Mr. Erlanger admitted under oath that, in fact, he knew the Toluene levels exceeded the WHO guidelines before he wrote his October 18, 2002 letter, which stated that all VOC's were within normal limits. In addition, Delora O'Brien's affidavit states that she entered the premises between 6 and 12 times between September, 2002 and April 2003 upon the representations by the defendants that the air quality was safe. Ms. O'Brien's affidavit further states that she would not have entered the house had she known the true nature of the chemical compounds present.

Pursuant to OSHA regulations, the MSDS documents are required to be kept by any company who uses ozone generating machines. It is undisputed that ozone generators were used by WALL in the remediation of the plaintiffs' home. In maintaining the MSDS, WALL is arguably aware, or should be aware, of the properties and the hazards associated with chemicals and cleaning solutions used in any given remediation project.

The evidence shows that the MSDS contain warnings that exposure to ozone may cause [*11]"inflammation of the upper respiratory tract," and that ammonium hydroxide may cause pneumonitis or pulmonary edema, both serious respiratory conditions. John Conlon of CITIZENS admitted that during the remediation process, he saw a chemical container with a "skull and crossbones" label on it. Alexander Wall, throughout the pendency of this case, has maintained that WALL is ignorant of the exact chemical compounds used in the remediation of the plaintiffs' home, notwithstanding the fact that WALL is required by OSHA to maintain the MSDS for all compounds used in its fire remediation work. On summary judgment, the Court may not weigh Mr. Wall's credibility on this issue, as such is properly reserved for the trier of fact (see, Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 293 NYS2d 93 [1968]; S. J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]); Zulferino v State Farm Auto. Ins. Co., 123 AD2d 432, 506 NYS2d 736 [2d Dept 1986]).

Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself (Restatement [Second] of Torts § 876). Here, the evidence presented raises questions of fact as to which, if any, of the defendants knowingly misrepresented the air quality test results to the plaintiffs to induce the plaintiffs to move back into their house and, if so, whether the plaintiffs' reliance on such misrepresentations were justified (Lama Holding Comp. v Smith Barney Inc., 88 NY2d 413, 646 NYS2d 76 [1996]). Accordingly, such questions of fact preclude summary judgment in favor of any of the defendants with respect to the Tenth Cause of Action. With regard to the adequacy of the pleading of the fraud cause of action, such issue has already been decided pursuant of the Order of the Hon. Robert Oliver dated March 15, 2005 and thus becomes the law of the case.

MULTIPLE CHEMICAL SENSITIVITY SYNDROME

In their moving papers, H2M and WALL allege that the plaintiffs claims of Multiple Chemical Sensitivity Syndrome ("MCSS") must be dismissed, as such injury is not recognized by New York Courts. In support, the defendant WALL offers the affidavit of Dr. William Head, a neurology and psychiatric expert who states, in substance, that MCSS is merely a theory and not a diagnosis generally accepted in the relevant scientific community, the showing of which is required by New York courts for a plaintiff to submit proof of an alleged injury to a trier of fact (see, Frye v United States, 293 F. 1013 [Ct App D.C. 1923]); People v Wesley, 83 NY2d 417).

In opposition, the plaintiff submits the affidavit of Dr. Marvin Boris, a specialist in allergy and immunology who avers that he has been diagnosing and treating MCSS for over 35 years and that MCSS is not a theory but is an appropriate diagnosis in certain cases such as this one. Dr. Boris further states that MCSS is a generally accepted diagnosis in the relevant scientific community, WALL'S reply papers suggest that MCSS has not gained acceptance in the appropriate medical communities, such as the American Medical Association, the American College of Physicians and the American Lung Association. The conflicting evidence on this issue causes the Court to conclude that a Frye hearing is necessary to determine whether or not plaintiffs may submit evidence at trial regarding MCSS. The viability of the loss of services causes of action shall be determined after the Court's findings on the Frye issue.

PLAINTIFFS' MOTION TO STRIKE WALL'S ANSWER

The plaintiff alleges that Alexander Wall has systematically violated the discovery process to justify the ultimate sanction of striking their pleading. To invoke this drastic remedy, the court must determine that the party's failure to comply with disclosure was the result of willful, deliberate, and contumacious conduct (Emanuel v Broadway Mall Properties Inc., 293 AD2d 708, 741 NYS2d 278 [2d Dept 2002]; Poulas v. U-Haul Intl., 288 AD2d 202, 732 NYS2d 579 [2d Dept 2001]). A careful review of the pleadings herein causes the Court to conclude that a hearing will be required to conclude the factual and legal issues raised by the motion.

This constitutes the decision and order of the Court.

Dated:

Peter H. Mayer, J.S.C.