Jones v Catalano

[*1] Jones v Catalano 2010 NY Slip Op 51832(U) [29 Misc 3d 1215(A)] Decided on October 20, 2010 Supreme Court, Albany County Teresi, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2010
Supreme Court, Albany County

John Jones, Jr., infant(s), by the Parent(s) and Natural Guardian(s), CHRISTINA JONES, Plaintiff,

against

Frank A. Catalano, GREY GHOST REALTY(DBA), and DAVID HOSLER, Defendants.



2324-09



Athari & Associates, LLC

Jennifer L. Chrisman, Esq.

Attorneys for Plaintiff

258 Genesee Street

Utica, New York 13502

Hiscock & Barclay, LLP

Brian Casey, Esq.

Attorneys for Defendant David Hosler

50 Beaver Street

Albany, New York 12207

O'Connor, McGuiness, Conte, Doyle & Oleson

Elizabeth Holmes, Esq.

Attorneys for Defendants Frank Catalano

and Grey Ghost Realty (DBA)

One Barker Avenue, Suite 675

White Plains, New York 10601

Joseph C. Teresi, J.

Plaintiff commenced this action seeking to recover damages for the personal injuries he allegedly sustained due to his exposure to lead paint. Issue was joined by Defendants, discovery has been completed and a trial date certain has been set. The parties now move for various relief. [*2]

Frank A Catalano [FN1] (hereinafter "Catalano") moves for summary judgment. His motion is opposed by both Plaintiff and David Hosler (hereinafter "Hosler"). Additionally, Plaintiff cross moves for summary judgment on the issue of Catalano's liability and dismissing Catalano's first, fourth, sixth, eighth and eleventh affirmative defenses. Although Catalano withdrew his first, fourth, eighth and eleventh affirmative defenses, he opposed the balance of Plaintiff's motion. Because neither Catalano nor Plaintiff demonstrated their entitlement to judgment as a matter of law, their motions for summary judgment are denied.

Next, Hosler too moved for summary judgment. Again, Plaintiff opposed the motion and cross moved for summary judgment dismissing a number of Hosler's affirmative defenses. As Hosler stipulated to dismiss each of the affirmative defenses Plaintiff sought summary judgment on, Plaintiff's motion is denied as moot. However, because Hosler demonstrated his entitlement to judgment as a matter of law, and Plaintiff raised no triable issue of fact, his motion for summary judgment dismissing the complaint against him is granted.

Additionally, Catalano, Hosler and Plaintiff all move, in limine, to preclude their adversaries' experts from testifying at trial. Plaintiff also moves, in the alternative, for a Frye hearing. While Catalano and Hosler demonstrated their entitlement to preclude a portion of the testimony of one of Plaintiff's experts, Plaintiff failed to demonstrate his entitlement to preclusion or to a Frye hearing.

Lastly, Hosler moves to quash two subpoenas duces tecum, which each contain five substantially similar demands (separately numbered i-iv), issued by Plaintiff to Hosler's psychological experts. In opposition, Plaintiff withdraws demands numbered ii and iii, alleges a stipulation to documents sought under i, but still seeks the documents sought under iv and v in the event a Frye hearing is held. To the extent that Hosler agreed to provide documents demanded under i and Plaintiff withdrew demands numbered ii and iii, Hosler's motion is denied as moot. To the extent Plaintiff continues to seek the documents demanded under sections iv and v for use at a Frye hearing, because Plaintiff is not entitled to a Frye hearing, Hosler's motion quashing sections iv and v of Plaintiff's two subpoenas duces tecum is granted.

SUMMARY JUDGMENT STANDARD

"[S]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (Napierski v. Finn, 229 AD2d 869, 870 [3d Dept. 1996]). On each parties' motion for summary judgment, the movant "bears the initial burden of demonstrating its entitlement to judgment as a matter of law by proffering evidentiary proof in admissible form... [, which] burden may not be met by pointing to gaps in [the non-movant's] proof." (DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept. 2010]; Wynn ex rel. Wynn v. T.R.I.P. Redevelopment Associates, 296 AD2d 176 [3d Dept. 2002]; Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).

If the movant establishes their right to judgment as a matter of law, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]).

As is applicable in this lead-based paint case, "in the absence of proof that an [*3]out-of-possession landlord had actual notice of the existence of a hazardous condition caused by a lead-based paint being used on the landlord's premises, a plaintiff can establish that the landlord had constructive notice of that condition by showing that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (Charette v. Santspree, 68 AD3d 1583 [3d Dept. 2009], quoting Chapman v Silber 97 NY2d 9 [2001][internal quotation marks omitted]; see also Byrd v. 2015 Caton Ave., LLC, 57 AD3d 933 [2d Dept. 2008][notice of a child residing in the apartment]; Duarte v. Community Realty Corp., 42 AD3d 480 [2d Dept. 2007][notice of a child residing in the apartment]; Cunningham v. Spitz, 218 AD2d 639 [2 Dept. 1995][lead exposure]; Haggray v. Malek, 21 AD3d 683 [3d Dept. 2005]).

CATALANO'S SUMMARY JUDGMENT

MOTION/PLAINTIFF'S CROSS MOTION

Here, Catalano failed to demonstrate his entitlement to judgment as a matter of law. Catalano's motion is primarily premised upon his alleged lack of knowledge that the infant Plaintiff resided at an apartment he owned, i.e. a claim that Plaintiff cannot prove the fifth Chapman prong. On this record, however, Catalano failed to submit sufficient admissible evidentiary proof to support his motion.

First, because Catalano's attorney's affirmation is not based upon "personal knowledge of the operative facts [it is of no]... probative value." (2 North Street Corp. v. Getty Saugerties Corp., 68 AD3d 1392 [3d Dept. 2009]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Additionally, Catalano's motion is not properly supported by Plaintiff's mother's deposition testimony, because it was neither signed nor admissible pursuant to CPLR §3116(a)'s 60 day exchange provision. (Marmer v. IF USA Exp., Inc., 73 AD3d 868 [2d Dept. 2010]; McDonald v. Mauss, 38 AD3d 727 [2d Dept. 2007]; Pina v. Flik Intern. Corp., 25 AD3d 772 [2d Dept. 2006]; Scotto v. Marra, 23 AD3d 543 [2d Dept. 2005]). Catalano's unsigned deposition transcript is similarly inadmissible, and of no support to his motion. (Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2d Dept. 2008]). Non-party David Addy's deposition transcript was likewise submitted unsigned. As Catalano made no showing of CPLR §3116(a) compliance, Addy's deposition transcript is inadmissible and will not be considered in support of Catalano's motion. (McDonald, supra; Pina, supra; Scotto, supra). Nor has Catalano demonstrated the admissibility, due to the above defects, of the Albany County Health Department inspection records he submitted. Accordingly, because Catalano has offered no admissible proof in support of his motion for summary judgment, it is denied.

Turning to Plaintiff's cross-motion for summary judgment on Catalano's liability and of his sixth affirmative defense, it too is unsupported by admissible evidence. Again, Plaintiff's attorney's affirmation is of no probative value because it is not based upon the attorney's personal knowledge. (2 North Street Corp., supra; Zuckerman, supra). Plaintiff similarly failed to establish his entitlement to judgment by reference to the unsigned and inadmissible deposition transcripts attached to Catalano's motion. (Martinez, supra). Nor did Plaintiff demonstrate the [*4]admissibility of either his medical records or the Albany County Health Department inspection records he submitted. On this record, Plaintiff offered no admissible evidence to support his cross motion, which is denied.

HOSLER'S MOTION FOR SUMMARY JUDGMENT

Considering next Hosler's motion for summary judgment, on this record he duly demonstrated his prima facie entitlement to judgment as a matter of law. Hosler properly supported his motion with his own affidavit, which specifically alleged and recalled renting an apartment (hereinafter "235 Sherman Street") he owned to Plaintiff and his family in May 1995. He alleged that his standard procedure for renting 235 Sherman Street was to "clean, paint and make repairs as needed" between tenants. He specifically asserted that 235 Sherman Street was "without chipping or peeling paint" at the commencement of Plaintiff's tenancy. Further, Hosler alleged that the Albany County Department of Health's August 8, 1995 letter was his first notice that 235 Sherman Street contained lead paint, contained chipping or peeling paint, or that lead paint was hazardous to children. After receiving such notice, he moved Plaintiff and his family out and oversaw the complete lead paint abatement for 235 Sherman Street within "approximately two weeks." These allegations sufficiently establish that Hosler had no actual or constructive knowledge of chipping or peeling lead based paint in 235 Sherman Street or the effects of lead based paint on children, when he rented 235 Sherman Street to Plaintiff and his family. In effect Hosler negated, with affirmative admissible proof, Chapman's third and fourth prongs and demonstrated his prima facie entitlement to judgment as a matter of law.

In opposition, despite considering the evidence in a light most favorable to Plaintiff, he failed to raise a triable issue of material fact. First, Plaintiff raised no issue of fact on Hosler's knowledge of the harmful effects of lead based paint on children (Chapman's fourth prong). Although Plaintiff properly offered Hosler's executed deposition, he did not admit at his deposition that he received a HUD "Lead-Based Paint Notification." Nor was the HUD "Lead-Based Paint Notification" that Plaintiff submitted on this motion, executed by Hosler. Plaintiff's allegations that Hosler received such notification, and thereby knew of the harmful effects of lead -based paint on children, are speculative, unsubstantiated and raise no issues of fact. Similarly unavailing are the allegations of Plaintiff's father, John Jones, Sr. (hereinafter "Jones"). Jones claims that he told Hosler that his family was "being followed by the County and the children were tested for lead and were probably going to be tested for lead again." Such statement, however, does not convey the harmful effects of lead-based paint on children. Rather, even viewed in a light most favorable to Plaintiff, such statement at most informed Hosler of Plaintiff's lead testing, not of lead based paint's harmful effects on children. Jones' additional claim that he "had conversations with [Hosler] before we moved in about the presence of the lead paint" likewise failed to demonstrate Hosler's knowledge of the harmful effects of lead based paint on children. A conversation about the "presence" of lead paint is not equivalent to a conversation about the harmful effects of lead based paint on children. As Plaintiff proffered no evidence to demonstrate that Hosler knew of the harmful effects of lead based paint on children, no issue of fact has been raised on the fourth Chapman prong.

Additionally, Plaintiff raised no issue of material fact concerning Hosler's knowledge of [*5]chipping or peeling lead based paint in 235 Sherman Street (Chapman's third prong). Again, just as David Addy's unexecuted deposition transcript was inadmissible and not considered on Catalano's motion, Plaintiff's reliance on it in opposition to Hosler's motion is misplaced. (McDonald, supra; Pina, supra; Scotto, supra). It offers no admissible proof demonstrating the existence of an issue of fact. Nor does Jones' affidavit. Jones merely states that upon inspecting 235 Sherman Street prior to occupancy, he "noticed a number of areas that had layers of old paint." Tellingly, Jones does not state that the "old paint" was chipping or peeling prior to moving in. Jones further admits that Hosler hired a contractor to abate the lead paint at 235 Sherman Street, when notified of the issue by the Health Department; and that he and Plaintiff "did not stay in the house while the work was going on." Moreover, Hosler's properly submitted deposition testimony raises no issue of fact concerning Hosler's knowledge of chipping or peeling lead based paint in 235 Sherman Street. Rather, at his deposition, Hosler consistently denied the presence of chipping or peeling paint at 235 Sherman Street.

Accordingly, because Plaintiff raised no issue of material fact on either the third or fourth Chapman prongs, Hosler's motion for summary judgment dismissing Plaintiff's claims against him is granted. (Robinson v. Scafidi, 23 AD3d 827 [3d Dept. 2005]).

MOTIONS FOR PRECLUSION OF EXPERT TESTIMONY

Considering next each of the parties' motions seeking to preclude their adversaries' experts from testifying at trial, or in the alternative for a Frye hearing,[FN2] the motions are denied, except Plaintiff's expert economist's trial testimony is limited as set forth below.

"To be properly admitted, expert opinion evidence must generally be based upon facts either found in the record, personally known to the witness, derived from a professionally reliable' source or from a witness subject to cross-examination." (McAuliffe v. McAuliffe, 70 AD3d 1129 [3d Dept. 2010], quoting Brown v. County of Albany, 271 AD2d 819 [3d Dept. 2000], lv. denied 95 NY2d 767[2000]; O'Brien v. Mbugua, 49 AD3d 937 [3d Dept. 2008]). A challenge to the foundation of an expert's testimony focuses on the "specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial." (Jackson v. Nutmeg Technologies, Inc., 43 AD3d 599 [3d Dept. 2007]; quoting People v Wesley, 83 NY2d 417 [1994]). Moreover, where a party challenges the "credibility of the opinions of... [an] expert and not the reliability of novel scientific evidence presented" no Frye hearing is required. (Page v. Marusich, 51 AD3d 1201 [3d Dept. 2008]).

First, Catalano and Hosler's (hereinafter collectively "Defendants") motion to preclude Plaintiff's expert neuropsychologist (hereinafter "Redfield") and economist (hereinafter "Decker") alleges that both expert's opinions lack a proper foundation. While such contentions are supported by Defendants' own expert psychologist (hereinafter "Baer") and economist (hereinafter "Goldman"), the proof presented only establishes the lack of foundation for a portion of Decker's opinion.

Baer alleges that Redfield's opinion is defective because his testing of Plaintiff improperly failed to consider Plaintiff's speech and language deficits. Although such claim is a [*6]challenge to the "reliability of the procedures [Redfield] followed," Baer failed to sufficiently prove the unreliability of the numerous tests Redfield employed in his review. Especially in light of a third psychologist's (hereinafter "Lopez-Williams") review of Redfield's procedures, who found such testing to be cumulatively appropriate. Nor did Baer demonstrate that Redfield's opinion is defective because Plaintiff's Pervasive Development Disorder diagnosis was not considered. To the contrary, Redfield's report specifically recognized the prior diagnosis. While Baer's allegations significantly challenge the weight to be accorded Redfield's opinions, she did not demonstrate that such opinions were inadmissible. Accordingly, Defendants' motion to preclude Redfield's trial testimony is denied.

Relatedly, Defendants demonstrated that a portion of Decker's opinion lacks a proper foundation. Although Goldman alleges that Decker's economic loss/fringe benefit calculation is "premised upon fundamental economic errors," such allegation challenges the credibility, not admissibility, of Decker's opinion. Moreover, Goldman provides no controlling authority which requires Plaintiff's economic loss/fringe benefit computation to be calculated differently. Defendants did demonstrate, however, that Decker's opinion about Plaintiff's earning potential, in the absence of lead paint exposure, is unsupported. Decker's opinion is expressly premised upon two assumptions, provided by Plaintiff's counsel, which are specifically stated as: "[w]ithout lead paint exposure, [Plaintiff] would have been able to attain a highschool degree and would have earned commensurate with the average earnings of males with a high school degree and a moderate disability; andAs a result of lead paint exposure, [Plaintiff] will now be limited to a 9th - 12th grade education and that his residual earnings capacity may be considered commensurate with the average annual earnings of males with a 9th - 12th grade education and a severe disability."

Such "without lead paint exposure" assumption is not "found in the record, personally known to [Decker], derived from a professionally reliable' source or from a witness subject to cross-examination." (McAuliffe, supra). Although, Decker's "result of lead paint exposure" opinion is based upon the professionally reliable" source of Redfield's opinion; Redfield simply does not provide any "without lead paint exposure" opinions upon which Decker could premise his economic analysis. Additionally, contrary to Plaintiff's contention, Defendants do not have the burden of proof for this foundational issue. As Plaintiff failed to provide any foundation for Decker's "without lead paint exposure" opinion, Decker is precluded from offering testimony at trial about Plaintiff's "without lead paint exposure" earning potential.

Turning to Plaintiff's motion for preclusion, or in the alternative a Frye hearing, he failed to demonstrate his entitlement to such relief. Plaintiff supports his motion with his attorney's affirmation, a single expert's affidavit (prepared by Lopez-Williams) and their respective attachments. As Plaintiff's attorney does not establish the basis of the expert psychological and economic opinions she proffers in challenging Defendants experts, her affirmation is of no probative value. Additionally, although Lopez-Williams' affidavit is properly offered for its expert opinion challenging Baer's psychological opinions, it does not challenge or address Defendants other two experts' (Jacobson and Goldman) opinions. As such, Plaintiff offers no probative expert proof in opposition to Jacobson or Goldman's expert opinions, and Plaintiff's motion to preclude their testimony is denied. [*7]

Similarly, Plaintiff's challenge to Baer's expert opinion is also unavailing. Lopez-Williams specifically admits that the "compilation of tests" Baer based her opinion upon were "appropriate." While Lopez-Williams' challenges the reliability of Baer's results, because Plaintiff "kept falling asleep" during the testing and the lack of an autism assessment, he failed to demonstrate the fundamental non-admissibility of her opinion. Moreover, Lopez-Williams failed to substantiate his claim that the "views expressed by Dr. Baer... [are] out of the main stream" or demonstrate that Baer's opinions are based on "novel scientific evidence." (Page, supra). While Plaintiff demonstrated certain scientific views of lead poisoning's effect on children, such proof failed to connect Baer's opinions to "novel scientific evidence." As such, Plaintiff neither demonstrated his entitlement to preclusion of Baer's expert testimony or the necessity for a Frye hearing. (Page, supra). Accordingly, Plaintiff's motion for preclusion, or alternatively a Frye hearing, is denied.

This Decision and Order is being returned to the attorneys for Hosler. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that section respecting filing, entry and notice of entry.

So Ordered.

Dated:October 20, 2010

Albany, New York

Joseph C. Teresi, J.S.C.

Footnotes

Footnote 1: D/B/A Grey Ghost Realty.

Footnote 2: Sought only by Plaintiff.