Stredwick v New York City Dept. of Educ.

[*1] Stredwick v New York City Dept. of Educ. 2010 NY Slip Op 50822(U) [27 Misc 3d 1221(A)] Decided on April 19, 2010 Supreme Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 19, 2010
Supreme Court, Queens County

Helaine Stredwick, Plaintiff,

against

New York City Department of Education, et al., Defendants.



13979/07



Attorneys for Plaintiff:

The Law Firm of Jonathan C. Reiter

350 5th Avenue - Suite 2811

New York, New York 10118

Attorneys for Defendants:

Shawn C. Graham, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

3 Gannett Drive

White Plains, New York 10604

Peter J. Kelly, J.

The parties' respective counsel executed a stipulation dated September 18, 2008, whereby plaintiff discontinued all claims against P.P.L. Construction Corp., with prejudice, and filed said stipulation with the County Clerk on October 3, 2008. Since said stipulation is binding on the parties (CPLR §2104), that branch of defendants' motion which seeks summary judgment dismissing the complaint as to P.P.L. Construction Corp., is denied as moot.

Plaintiff Helaine Stredwick was employed by the defendant New York City Department of Education as a speech therapist at PS 177Q, located at 56-37 188th Street, Flushing, New York. Plaintiff alleges that defendant New York City School Construction Authority (SCA) contracted with defendant P & K Contracting(P & K) to perform construction work at PS 177Q, [*2]and that P & K entered into subcontracts with P.P.L. Construction Corp., Rex Construction Corp., and Imperium Construction, Inc. It is alleged that KZ & V Construction, Inc., was a subcontractor of P.P.L. Construction Corp.

In the first cause of action, plaintiff alleges that from March 7, 2006 and for a continuous time thereafter, defendants New York City Department of Education, The New York City Board of Education, The City of New York, The New York City School Construction Authority (City and SCA defendants), their agents, servants or employees performed construction work at said school, which exposed her to construction materials and waste materials, and caused her to become seriously ill. Plaintiff alleges that she was exposed to and inhaled and ingested dust and other toxic fibers emanating from the products, materials and equipment used by the defendants; that the defendants caused and created said condition; and that defendants had actual and constructive notice of the hazardous and dangerous condition. In addition to the negligence claim based upon the alleged exposure to hazardous substances, plaintiff asserts a violation of Labor Law § 200 as to these defendants.

The second, third, fourth, fifth and sixth causes of action each allege separate claims against each of the contractors or subcontractors, based upon the alleged exposure to hazardous substances.

Plaintiff alleges that the defendants caused her to become disabled and that she sustained various physical and emotional injuries. Specifically, in her bill of particulars, plaintiff alleges that she was permanently disabled and incapacitated from her employment since August 1, 2007. She alleges that as a result of her exposure to hazardous substances, she sustained "nasopharyngitis; sinus infections; laryngitis; difficulty breathing; shortness of breath; inflammation of the respiratory track; allergic rhinitis; allergic sinusitis; exacerbation of rhinitis; exacerbation of sinusitis reflux; sleep difficulties; concentration difficulties; fatigue; chronic obstructive pulmonary disease; dust exposure; chest tightness; tingling of tongue; metallic taste; bilateral pleuropulmonary changes associated with scarring; scattered bullae; numerous small blebs; nodules in left upper lobe of lungs inflammatory in nature; nodules in right upper lobe of lung inflammatory in nature; small airway disease; asthma; endobronchial secretions; swollen tuberates; exacerbation of left middle turneate concha bullosa; and erythema of nose."

Defendants served an answer and an amended answer, and interposed 11 affirmative defenses. A preliminary conference order was issued on June 24, 2008, and defendants served their response to plaintiff's notice for discovery and inspection on January 15, 2009. Counsel for the parties appeared at a compliance conference on February 17, 2009, at which time an order was issued directing plaintiff to serve and file the note of issue and statement of readiness on or before June 5, 2009, and directed that depositions of Jim Kusa, Chris Carnahan and Paul Birenberg be held on March 17, 2009.

The parties did not adhere to the court-ordered schedule for depositions. Counsel for the defendants, in a letter dated March 18, 2009, informed plaintiff's counsel that Mr. Birenberg [*3]would appear for a deposition on April 8, 2009; that Mr. Kusa was no longer employed by the SCA and provided his last known address; and that Mr. Carnahan is employed by a nonparty and, thus, could not be produced by the defendants. Mr. Birenberg was deposed on April 8, 2009.

On June 3, 2009, counsel for the plaintiff informed counsel for the defendants in an e-mail that she wanted to reserve her right to depose a total of nine individuals employed by four different defendants. Counsel for the defendants agreed to produce one witness from each of the four entities. The parties entered into a stipulation dated June 4, 2009 whereby they agreed that "the defendants would produce one witness from each of the defendant entities for deposition, and that plaintiff would timely file the note and certificate of readiness". The note of issue was filed on June 5, 2009, along with the June 4, 2009 stipulation. However, none of the individuals referred to in the stipulation were deposed.

The within motion for summary judgment was timely served on October 2, 2009. Plaintiff, in opposition to the within motion for summary judgment, initially asserts that there is a need to conduct further discovery in accordance with the parties' June 4, 2009 stipulation. Although the determination of a motion for summary judgment may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see, CPLR §3212[f]), "[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & Sons Constr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]; see, Williams v D & J School Bus, Inc., 69 AD3d 617 [2010]; Wyllie v District Attorney of County of Kings, 2 AD3d 714, 717 [2003]). A party's mere hope that further discovery will reveal the existence of a triable issue of fact is insufficient to delay determination of the motion (see, Wyllie v District Attorney of County of Kings, 2 AD3d at 717; Weltmann v RWP Group, 232 AD2d 550 [1996]).

Here, plaintiff has failed to provide an evidentiary basis for her assertion that further discovery would lead to additional relevant evidence (see, Lambert v Bracco, 18 AD3d 619, 620 [2005]). Counsel's assertions that the further depositions "might in fact yield further information, which would more fully articulate plaintiff's claims that she was exposed to harmful chemicals while construction was going on at PS 177Q," is rank speculation and does not constitute an evidentiary basis for delaying this motion for summary judgment.

The court further finds that the plaintiff has been afforded a reasonable opportunity to conduct discovery. Defendants' counsel agreed to provide additional depositions in the June 4, 2009 stipulation which were not requested by the plaintiff at the compliance conference, but these depositions were not scheduled. It additionally appears from the copies of the e-mails submitted by the plaintiff's counsel that no depositions were scheduled between June and late July 2009. Regardless of the reason for such failure, plaintiff did not thereafter seek to schedule the depositions, or take any further action to compel the depositions. It is also noted that the within motion was not served until October 2, 2009, and opposition papers were not served until January 14, 2010. Consequently, there was ample time to conduct whatever further discovery the [*4]parties deemed necessary or request the court compel same.

Defendants, in support of the within motion, have submitted the report of a doctor who conducted an independent medical examination and reviewed the medical records, and attests and opines that Ms. Stredwick offered complaints dating back to 1992, and ongoing through 2008 when she was examined, and that she "did not have precipitation, aggravation, or onset of those complaints following the January through April work environment exposure...".

Defendants also submitted copies of Ms. Stredwick's deposition testimony, in which she stated that construction work at the school began in January 2006; that in January 2006, she thought she had a cold and her physician prescribed an antibiotic but that she did not have any improvements; that she then started to experience extreme fatigue, heaviness in her limbs, chest pains, inflammation of her upper respiratory tract and asthma; that by the end of February or beginning of March 2006, she realized that the construction may have been contributing to her illness, as other teachers in the school were also getting sick; that she would lose her voice on occasion; that there was construction dust on the windowsills of her classroom; that she always opened the windows in the classroom and that there was construction dust on her hands, pocketbook and inside the room; that in March 2006 she informed her UFT representative that there was a powder substance on her classroom windowsill; that on April 27, 2006 while she was working inside her classroom her "tongue started to tingle and her throat began to close," that the school nurse told her that her tongue was swollen, and that her principal advised her to immediately see her doctor which she did; that she did not return to work after April 27, 2007 and that after she used up her leave time, she remained on unpaid leave for a year and a half, until she retired on disability in August 2007.

Plaintiff further testified that after she left the school, another teacher collected dust/material specimens from the windowsill of a classroom, and that the teacher and plaintiff took this sample to Mt. Sinai Hospital for testing and was later informed by telephone that the tested substance contained approximately 70 percent quartz of silica. She stated that after her symptoms reappeared, she saw a number of specialists including Dr. Iakova, a pulmonary specialist, who diagnosed her as having an inflammation of the upper respiratory tract, asthma and the start of COPD; that her physician told her that her condition was caused by her breathing something that was irritating; and that she is taking certain prescribed medications.

Excerpts from the deposition testimony of Pavel (Paul) Birenberg, an Industrial Hygienist employed by the SCA was also submitted in support of the motion. Mr. Birenberg oversaw the asbestos consulting monitors at PS 177Q and other locations, and prior to the commencement of work at the school, he attended a UFT protocol meeting on October 20, 2005. Mr. Birenberg testified that during the performance of the construction at PS 177Q, he responded to complaints by conducting at least one visual inspection during school hours after the asbestos removal was completed, and that he found the condition of the room he visited to be acceptable with no visible debris, dust or odors present. [*5]

Defendants also submitted copies of 32 separate written injury and illness reports prepared by various teachers and faculty members, which the plaintiff provided. Thirty of these reports complained of air quality, odors, chemical odors, fumes or chemical vapors causing the person's illness, or did not list a cause. Plaintiff's report states that her illness was caused by "unknown substances (construction)." Another teacher's report complains of exposure to dust as well odor, and chemicals used in the construction. One teacher complained that on June 26, 2006, an air conditioner blew a large quantity of dust in her face, which entered her eyes, nose and mouth and that she experienced extreme laryngitis, difficulty swallowing, throat and chest pain, a hacking cough and difficulty sleeping.

As a result of these teacher and faculty complaints, the Department of Education retained Precision Environmental Inc. to evaluate the air quality on the second floor of the school where the odors were reported to have occurred. An air quality assessment was initially completed on March 14, 2006. The report, dated March 15, 2006, stated that some teachers had vomited and were excused from work, and that although a slight to moderate transient odor was detected in a few classrooms, the relative humidity, carbon dioxide concentration and carbon monoxide concentration were within normal limits; and the level of total volatile organic compounds (TVOCs) was 0.0 parts per million inside and outside the school, and were within normal limits.

Precision Environmental Inc. conducted air quality testing on March 17, 2006, March 18, 2006, March 20, 2006, March 21, 2006, and April 25, 2006, following complaints of a noxious odor, similar to petroleum products, wafting through the second floor of P.S. 177Q. Each of the test results revealed no abnormal findings.

Precision Environmental Inc. conducted air quality testing on April 10, 2006 following complaints of a paint odor in the building. Testing was conducted for airborne particulate matter (APM [particulate matter less than 10 microns in diameter that can be inhaled through the nose or throat]) and for TVOCs. Precision's employees were informed that some painting had been performed over the weekend and that some teachers complained about the paint odor on Monday morning. The test results revealed that the APM and TVOCs were considered within normal limits.

Although there is documentary evidence of chemical and paint odors inside PS 177Q during the construction, and air quality testing in response to complaints about these odors, there is no documentary evidence which establishes that there were any reports of ongoing problems with dust created by the construction between March 7, 2006 and April 26, 2006, plaintiff's last day of work at the school.

Defendants have also submitted a copy of a report they received from plaintiff which was prepared by laboratory technicians at EMSL Analytical, Inc., who analyzed a material sample for the plaintiff on July 6, 2006. The report does not indicate where the sample was collected or who provided the sample, although it is addressed to the plaintiff. Ms. Stredwick, however, testified that another teacher collected the material sample at the school in late May or early June 2006. [*6]Plaintiff believed that the sample was collected from her windowsill and other areas in the school.

EMSL Analytical, Inc. stated in its report that "the particles in the sample are indicative of brick and/or mortar dust. Some wood fiber and adhesive is also present." The results table describes the sample as "fine grains"; as regards all categories of nuisance particulate, none were detected; as regards common particulate, the "cellulosic" detected as greater than 1 percent natural, 3 percent wood, 2 percent paper pulp, 70 percent quartz, 10 percent calcite dolomite, unidentified inert organics 5 percent, quartz 70 percent, calcite/dolomite 10 percent, 4 percent unidentified inorganics, and adhesive 5 percent. As regards cement dust, the comments portion of the report states that "[t]he majority of the sample is a combination of cementitious material consistent with brick and cement block (cinder-block). Both materials are a combination of sand (Quartz) and calcite/lime as noted in the results table."

A plaintiff alleging injuries from a toxic chemical exposure or substance must provide objective evidence that the exposure caused the injury (see, Parker v Mobil Oil Corp., 16 AD3d 648, 653 [2005], affd 7 NY3d 434 [2006]). Here, defendants have established their prima facie entitlement to judgment as a matter of law through the sworn statement of the physician who conducted the independent medical examination that the plaintiff's alleged exposure to construction dust and debris did not cause her medical conditions and symptoms. The additional documentary evidence supports defendants' assertion that there is no objective evidence that plaintiff was exposed to construction dust and debris that caused her injury.

In opposition, plaintiff has failed to raise a triable issue of fact (see, generally Alvarez v Prospect Hosp., 68 NY2d 320, 324, [1986]). Although plaintiff asserts that the material sample that was tested contained approximately 70 percent quartz (silica), and has submitted OSHA materials pertaining to silica and silicosis, she has failed to establish that the air quality testing showed any percentage of silica, and has failed to establish that she has been diagnosed with silicosis.

Plaintiff has proffered a report from a physician at Mt. Sinai Hospital which is neither affirmed nor sworn to, as well as medical records that set forth certain findings as to her physical condition, without offering a substantiated opinion that her medical condition and symptoms were caused by exposure to construction dust and debris. In fact, no opinion was offered as to causation. In addition, plaintiff has proffered an unsworn letter, dated July 31, 2007, from a physician at Mt. Sinai, which states that her physical condition is related to "poor indoor air quality," that her symptoms began in January of 2006 while she was working in the building which underwent construction and that "she is very sensitive to respiratory irritants." This unsworn letter is insufficient to raise a triable issue of fact (see, Parker v Mobil Oil Corp., 7 NY3d 434, 448-450 [2006], supra; McGrath v Transitional Servs. of NY for Long Island, 63 AD3d 1121 [2009]; DiDomenico v Long Beach Plaza Corp., 60 AD3d 618, 620 [2009]; Hellert v Town of Hamburg, 50 AD3d 1481, 1483 [2008]; Nawrocki v Coastal Corp., 45 AD3d 1341, 1342 [2007]; Edelson v Placeway Constr. Corp., 33 AD3d 844, 845 [2006]). [*7]

In view of the foregoing, defendants' motion for summary judgment dismissing the complaint is granted.

Dated: April 19, 2010

Peter J. Kelly, J.S.C.