Rosati v Brigham Park Co-Operative Apts.

[*1] Rosati v Brigham Park Co-Operative Apts. 2012 NY Slip Op 51903(U) Decided on October 4, 2012 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2012
Supreme Court, Kings County

John Rosati, Plaintiff,

against

Brigham Park Co-Operative Apartments, SEC No.2, INC. and WENTWORTH PROPERTY MANAGEMENT, INC., Defendants.



15229/08



Plaintiff John Rosati was represented by Natascia Ayers, Esq. and Michelle Homan, Esq. of Jaroslawicz and Jaros LLC. Defendants Brigham Park Co-Operative Apartments, SEC #2, Inc. and Wentworth Property Management, Inc. were represented by Arthur P. Xanthos, Esq. and Elizabeth L. Knapp, Esq. of Gartner & Bloom, P.C.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219(a) of the papers considered on Plaintiff's motion for a unified trial; Plaintiff's motion for an order admitting certain documents as evidence at trial, and excluding other evidence; and Defendants' three Motions In Limine to Preclude Evidence:

-Motion for Unified Trial

Affirmation in Support of Motion for Unified Trial

Exhibit A

-Notice of Motion

Affirmation in Support of Motion In Limine

Exhibits A-C

-Motion In Limine to Preclude Evidence

Exhibits A-B (2)

-Motion In Limine to Preclude Evidence

Exhibits A-B

-Motion In Limine to Preclude Evidence

Untabbed exhibits

-Defendants' Brief in Support of Trial Bifurcation

-Affirmation in Opposition [*2]

Exhibit A

-Affirmation in Opposition to In Limine Motion to Preclude Olmstead

-Exhibit A

-Affirmation in Opposition to Defendants' Motion to Preclude Dr. Grant

-Exhibits A-E

-Defendant's Brief Responsive to Plaintiff's In Limine Request for Trial Unification

-Affirmation in Opposition to Motion in Limine

Exhibits A-E

-Reply to Plaintiff's Motion for Unification of Trial and in Opposition to Defendants' Motion for Bifurcation

-Reply Affirmation

-Reply Affirmation in Further Support of Defendants' Motion In Limine to Exclude Violation Notices

Exhibit A

-Reply Affirmation in Further Support of Defendants' Motion In Limine to Exclude Testiomony [sic] of Dr. Irene Grant

Exhibits A-F

-Reply Affirmation in Further Support of Defendants' Motion In Limine to Exclude Testimony and Test Results of Ed Olmstead

Exhibits A-D

Plaintiff was represented by Natascia Ayers, Esq. and Michelle Holman, Esq. of Jaroslawicz & Jaros, LLC. Defendants were represented by Arthur P. Xanthos, Esq. and Elizabeth L. Knapp, Esq. of Gartner and Bloom, P.C.

Plaintiff John Rosati's Verified Complaint alleges that he "purchased" and resided in apartment #4A in a building located at 2270 Plumb 1st Street, Brooklyn, owned by defendant Brigham Park Co-Operative Apartments, Section #2, Inc. and managed by defendant Wentworth Property Management, Inc.; and that "due to the defendants' recklessness, carelessness and negligence, mold was caused to form in [his] apartment, as a result of which [he] suffered severe and permanent personal injuries, as well as extensive property damage." (See Verified Complaint ¶¶ 8-10.) Although Plaintiff's several bills of particulars allege approximately 50 illnesses or symptoms, at a pre-trial evidentiary hearing Plaintiff specified his injuries as chronic upper respiratory inflamation, bacterial infection, cough, obstructive sleep apnea, mold growing in nose, sinusitis, rhinitis/rhinosinusitis, abscesses in neck/throat, nosebleeds, asthma attacks, and nasal polypsosis.

The pre-trial evidentiary hearing was held in response to Defendants' motion pursuant to Frye v United States (293 F 1013 [DC Cir 1923]) to preclude Plaintiff's experts from testifying at trial that exposure to indoor mold caused Plaintiff's alleged illness. After the hearing, this Court ruled that Plaintiff's experts, Dr. Irene Hanchett Grant, board-certified in internal medicine and [*3]infectious diseases, and Dr. Theodore J. Harrison, board-certified in otolaryngology, would be permitted to testify that exposure to indoor mold of the type allegedly present in Mr. Rosati's apartment could cause the illness he alleges, i.e., general causation, and that he "was exposed to sufficient levels of [mold] to cause the illness" he alleges, i.e., specific causation. (See 36 Misc 3d 1214 [A], 2012 NY Slip Op 51315 [U] [Sup Ct, Kings County 2012] [quoting Parker v Mobil Oil Corp., 7 NY3d 434, 448 (2006)].)

Each of the parties has now moved for resolution of certain issues before jury selection and trial. Plaintiff moves for "a unified trial of the issues of liability and damages, pursuant to 22 NYCRR 202.42" (see Motion for Unified Trial dated September ___, 2012); to admit into evidence at trial documents marked at the evidentiary hearing; and to preclude "all references to illegal drug use in plaintiff's medical records" (see Notice of Motion dated September 14, 2012.) Defendants move to preclude the testimony of industrial hygienist Edward Olmstead; to preclude certain testimony of Dr. Irene Grant; and to preclude "Notices of Violation issued to the

defendants and any testimony thereof or mention of the same" (see Motion In Limine to Preclude Evidence dated September 14, 2012.)

Unified or Bifurcated Trial

Plaintiff seeks "a unified trial of the issues of liability and damages, [purportedly] pursuant to 22 NYCRR 202.42" (see Motion for Unified Trial dated September ___, 2012.) Uniform Civil Rules for the Supreme Court and the County Court §202.42 provides, "Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action" (see 22 NYCRR §202.42.)

"The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability." (Galarza v Crown Container Co., Inc., 90 AD3d 703, 704 [2d Dept 2011] [quoting Carbocci v Lake Grove Entertainment, LLC, 64 AD3d 531, 532 (2d Dept 2009)]; see also Barrera v Shaggs-Walsh, Inc., 279 AD2d 442, 442 [2d Dept 2001].) "Although trial courts are encouraged to conduct bifurcated trials in personal injury cases, a unified trial should be conducted where the nature of the injuries has an important bearing on the question of liability." (Perez v Madoff, 69 AD3d 821, 821-22 [2d Dept 2010]; Pasquaretto v Cohen, 37 AD3d 440, 440 [2d Dept 2007]; Barrera v Shaggs-Walsh, Inc., 279 AD2d at 442.)

On this motion, Plaintiff asserts the following bases for Defendants' liability: the law as reflected in Pattern Jury Instruction 2:100, Lessor's Liability re Premises for Private Uses; the law as reflected in Pattern Jury Instruction 2:105, Lessor's Liability re Premises Over Which Control Retained; the law as reflected in Pattern Jury Instruction 2:106, Lessor's Liability Under Covenant to Repair; Multiple Dwelling Law §78, Repairs; Real Property Law §235-b, Warranty of Habitability; and Administrative Code of the City of New York, Housing Maintenance Code, §27-2005, Duties of Owner. (See Affirmation in Support of Motion for Unified Trial ¶¶ 8-11.) [*4]The Court notes that the Verified Complaint (see ¶¶ 11, 16) and the Verified Bill of Particulars (see ¶5) allege "violating laws, rules and regulations," but do not specify the now-cited provisions of the Multiple Dwelling Law, Real Property Law, or Administrative Code.

Although the verbal formulations as to the predicate for liability may differ, e.g., "dangerous," "unsafe," "defective," or "unfit," each of the proferred bases for liability require proof of a potentially injury- or damage-producing condition that, by application of a standard of legal reasonableness or statutory or contractual duty, should not have been present, together with proof that the condition did, in fact, cause such injury or damage to the plaintiff. Here, Defendants contend that the alleged mold condition in Plaintiff's apartment cannot cause illness, and, in any event, did not cause any injury to Plaintiff, either because Plaintiff was not exposed to sufficient levels of mold to cause his illness, or because his illness was caused by something else.

Defendants contend that "in a toxic tort' case, where plaintiff alleges exposure to an array of mold species, and purports to link them to both respiratory and non-respiratory injuries, plaintiff cannot meet his burden for trial unification . . . without testimony from an industrial hygienist and a medical doctor"; but here "no medical affidavit was submitted; [and] no industrial hygienist affidavit was submitted." (See Defendants' Brief Responsive to Plaintiff's In Limine Request for Trial Unification dated September 24, 2012.) Assuming Defendants are correct that a party seeking unification, at least in a case like this, must support the request with medical evidence - - a proposition for which Defendants cite no authority, the record on the evidentiary hearing held at Defendants' instance is more than sufficient.

The existence of one or more species of mold in Plaintiff's apartment, and the nature and level of Plaintiff's exposure from time to time, are crucial questions as to both liability and damages. Evidence as to the nature of Plaintiff's injuries will "necessarily assist[ ] the [jury] in making a determination with respect to the issue of liability" (see Galarza v Crown Container Co., Inc., 90 AD3d at 704), and "the nature of [his] injuries has an important bearing on the question of liability" (see Perez v Madoff, 69 AD3d at 821-22.) Even if Dr. Grant's testimony is limited in response to Defendants' pending motion in limine, Dr. Harrison's testimony as to his diagnosis and treatment of Plaintiff would bear both on liability, including specific causation, and on damages.

Admission or Preclusion of Documents Marked at Evidentiary Hearing

At the evidentiary hearing, the parties marked as exhibits 180 documents and other material, 145 for Plaintiff and 35 for Defendants. All of the marked exhibits, whether as evidence or for identification only, retain their status for trial. Approximately half of the marked exhibits are articles, studies, and other sources upon which the experts relied for their respective opinions, and they remain available as foundation for the experts' testimony at trial. They are presently marked only for identification, but neither party is precluded from seeking admission as evidence, with, of course, proper foundation. [*5]

Most of the exhibits admitted as evidence at the hearing are hospital and doctors' office records, as to which the parties stipulated are authentic and qualify as "business records" within the so-named exception to the hearsay rule. (See CPLR 4518 [a], [c]; Williams v Alexander, 309 NY 283, 286-87 [1955]; Wilson v Bodian, 130 AD2d 221, 228-31 [2d Dept 1987].) The parties, however, reserved the right to object at trial to any particular writing or notation within the record that was not rendered admissible by the business-records exception. The aspect of Plaintiff's motion that would preclude "references to drug use in plaintiff's medical records" falls within that reservation, and is discussed below.

To the extent that either party contends that any writing or notation in an admitted record is not admissible pursuant to the business-records exception to the hearsay rule, the party shall advise the other party and the Court no later than the final pre-trial conference, now scheduled for October 29, 2012.

In addition to hospital and doctors' office records, Plaintiff seeks to have admitted pursuant to the certification procedure of CPLR 3122-a documents described as the records of ACS Environmental, IATL, Pro-Lab, and Real Time Laboratories, Inc., as well as all records delivered at the instance of Plaintiff to the Subpoenaed Records Room. It is not clear, however, which of these documents was marked at the evidentiary hearing, since Plaintiff does not say, and neither the documents nor the certification is provided to the Court on this motion.

This, too, then will have to be addressed at the final pre-trial conference. Each party should be prepared to identify those documents marked for identification at the hearing, or delivered to the Subpoenaed Records Room at the party's instance, that the party offers as evidence, and each party should be prepared with any objection to the admission of any document offered by the other.

As noted above, Plaintiff seeks to preclude "all references to illegal drug use in plaintiff's medical records," but he only attaches, or refers to, items found in the August 2009 records of Maimonides Medical Center. The items are of three types: the results of toxicological screening of Plaintiff's urine, showing "positive" for benzodiazepine, cocaine, and opiate; statements on a history of cocaine and other drug use; and various notations as to IV drug use or abuse "with neck injection."

It seems clear that, even without further foundation, the toxicology results are admissible as part of the certified hospital record. (See CPLR 4518 [c]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1018 [2d Dept 2008]; Rodriguez v Triborough Bridge & Tunnel Auth., 276 AD2d 769, 770 [2d Dept 2000]; Martin v City of New York, 275 AD2d 351, 353 [2d Dept 2000].) It may well be that, as Plaintiff contends, the test results as to benzodiazepine and opiate are explained by the medications he was administered at the hospital, but some expert other than Plaintiff's counsel must testify to that, and/or that the results are irrelevant to Plaintiff's alleged injuries. As to cocaine, Dr. Grant, Plaintiff's expert, testified at the evidentiary hearing as to the relationship between cocaine use and certain injury Plaintiff is alleging. [*6]

The history notes are as follows: "As per significant other pt did cocaine last night"; "apnea, asthma, cocaine and marihuana use"; "he has been complaining of left leg pain, + poly substance abuse"; "on physical exam pt appears intoxicated and admits to drug use recently." Plaintiff does not appear to contend that the last quoted statement, clearly attributed to him, is not admissible. (See Affirmation in Support of Motion In Limine ¶ 10.) Even if recent drug use were "not germane to diagnosis and treatment", if the statement is inconsistent with Plaintiff's position at trial, the statement would be admissible under the party-admission exception to the hearsay rule. (See Kamolov v BIA Group, LLC, 79 AD3d 1101, 1102 [2d Dept 2010]; Coker v Bakkal Foods, Inc., 52 AD3d 765, 766 [2d Dept 2008]; Berrios v TEG Mgt. Corp., 35 AD3d 775, 776 [2d Dept 2006]; but see Sermos v Gruppuso, 95 AD3d 985, 986-87 [2d Dept 2012].)

On the other hand, even if the entry in the record is germane to diagnosis or treatment, if the source of the information is unknown, the entry is inadmissible. (See Matter of Progressive Northeastern Ins. Co. v Randazzo, 24 AD3d 560, 560 [2d Dept 2005]; Ginsberg v North Shore Hosp., 213 AD2d 592, 592 [2d Dept 1995].) The notation as to "cocaine and marihuana use" is, therefore, inadmissible. The source of "+ poly substance abuse" is unclear given the context. But since the statement itself is unclear, and it seems hardly likely that Plaintiff would admit to "substance abuse," the potential prejudice outweighs any probative value, and the statement should be excluded. (See People v Caban, 14 NY3d 369, 374-75 [2010]; Gric v City of New York, 139 AD2d 621, 626 [2d Dept 1988].)

Similarly, the Maimonedes records show no source or other basis for the several notations of IV drug use "with neck injection." Although the observations of medical personnel may support the admissibility of their notations (see People v Spicola, 16 NY3d 441, 451-52 [2011] ["nurse's observations of the boy's demeanor and manner"]; People v Ortega, 15 NY3d 610, 617 n3 [2010] ["medical personnel's firsthand observations"]; Arroyo v City of New York, 171 AD2d 541, ___ [1st Dept 1991] ["A.O.B."/ "alcohol on breath"]), such as a notation of the "track marks" associated with intravenous drug use, there is no evidence that the notations in the Maimonedes records were based on the "firsthand" observations of medical personnel. On the other hand, the attending doctor's notation that "on physical exam pt appear intoxicated" would be admissible upon medical testimony that intoxication is somehow relevant to the injuries Plaintiff alleges in this case.

The notation, "As per significant other pt did cocaine last night," is problematic because, although source is indicated, it was not the patient, it was his "significant other" (characterized as his "spouse" or "girlfriend" elsewhere in the Maimonedes records.) In Rivera v City of New York (200 AD2d 379 [1st Dept 1994]), the First Department assumed, without deciding, that a statement to an emergency medical services technician by "the comatose patient's niece that plaintiff had used crack cocaine the night before" would "not qualify as a business record exception to the hearsay rule because the declarant was under no duty to provide the information" (see id.) But in Jajoute v New York City Health & Hosps. Corp. (242 AD2d 674 [2d Dept 1997]), the Second Department suggested that a statement made by "a person familiar with [the patient's] prior medical history" would be admissible (see id. at 676.) And in Crisci v Sadler [*7](253 AD2d 447 [2d Dept 1998]), the Second Department admitted a statement made by a parent of a 26-month-old infant as to the infant's medical history without noting any question about it (see id. at 448-49.)

Judge Robert Smith recently commented that developing caselaw had "implicitly recognize[d] . . . another hearsay exception, for statements made for purposes of medical diagnosis or treatment." (See People v Ortega, 15 NY3d at 621 [Smith, J., concurring].) More recently, the full Court of Appeals held that a "child's statement was germane to his medical

diagnosis and treatment and therefore was properly admitted under that exception to the hearsay rule." (See People v Duhs, 16 NY3d 405, 408 [2011] [emphasis added].) One consequence might be avoidance of the "business duty" limitation on the admissibility of third-party statements under the business-records exception (see Hockhauser v Electric Ins. Co., 46 AD3d 174, 179-83 [2d Dept 2007].)

"Statements to one's own doctor or other health care professional have an intrinsic guarantee of reliability, for only a foolish person would lie to his or her own doctor when seeking medical help." (People v Ortega, 15 NY3d at 621 [Smith, J., concurring]; see also People v Duhs, 16 NY3d at 405.) The same must be said about a person accompanying a patient for medical diagnosis or treatment, where that person has a close familial relationship (see Braschi v Stahl Assoc. Co., 74 NY2d 201, 211-13 [1989]) to the patient, and the subject of the statement is something the person would be expected to know. Indeed, here, the statement at issue is immediately followed in the record with, "Pt in no acute stress at triage with very anxious family member at bedside." Of course, at trial Plaintiff is free to question the reliability of the statement with his own testimony or that of his "significant other."

Defendants oppose any redactions from the Maimonides records on the ground that all references to Plaintiff's drug use were germane to his diagnosis and treatment; Defendants support their opposition with the affirmations of Alvin Katz, M.D., an otolaryngologist, and Stuart Young, M.D., an allergy and immunology specialist. But there seems little, if any, real dispute on that issue, and the questions at trial will be whether, when, and to what extent Plaintiff used cocaine or injected drugs into his neck, and the relationship of any such use to his claimed injuries.

Rather, the issue on this motion is the source of the information as to cocaine use and IV injection, and, except for the notation, "admits to drug use recently," attributed to Plaintiff, Defendants fail to even address the issue. (See Affirmation in Opposition to Motion in Limine ¶ 32.) It may be that someday the courts will recognize a broad hearsay exception for all statements made for diagnosis and treatment, with or without attribution, but that day has yet to arrive.

Notwithstanding Plaintiff's assertion that "all references to cocaine use stem from [the] initial history provided by the significant other' rather than plaintiff himself (see Reply [*8]Affirmation ¶ 3), only the notation that specifies the source as Plaintiff's "significant other" will be admitted.

The Court has noted Plaintiff's argument in reply that cocaine use is not relevant to the injuries for which Plaintiff is claiming here. The short answer would be that, if it was germane to diagnosis and treatment of the conditions for which Plaintiff was hospitalized, which are injuries for which Plaintiff is claiming here, then relevance seems obvious. In any event, particularly in light of Dr. Grant's testimony on the subject at the evidentiary hearing, the jury can consider the opinions of the respective experts, likely to be much more nuanced than presented in submissions to date, if and when the jury is called upon to determine specific causation.

Limitation of Testimony of Dr. Irene Grant

Defendants move pursuant to Uniform Rule §202.17 (22 NYCRR §202.17) to preclude any testimony by Dr. Irene Grant about her treatment of Plaintiff, and the introduction into evidence of any related records, on the ground that "no medical authorizations for said treating doctor were ever tendered by the plaintiff" (see Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 2.) As noted above, Dr. Grant was one of Plaintiff's experts at the pre-trial evidentiary hearing on general causation, but she also testified, as characterized by Defendants' counsel, "to having treated the plaintiff with anti-fungal therapy, and moreover to the plaintiff [sic] having improved during the course of her treatment" (see id. ¶ 4.) Attached as an exhibit to Defendants' papers is a copy of a report dated December 10, 2010 from Dr. Grant to Plaintiff's counsel, which describes her examination of Plaintiff on that date, apparently for the first time, but Defendants' counsel does not state when they received the copy.

A treating physician, unlike a physician who examines the plaintiff only for purposes of litigation whether at the instance of a plaintiff or a defendant, may testify at trial without there having been expert disclosure pursuant to CPLR 3101 (d), assuming that the plaintiff has complied with the rules on the exchange of medical reports found in Uniform Civil Rules for the Supreme Court and the County Court §202.17 (22 NYCRR §202.17.) (See Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603, 604 [2d Dept 2012]; Swezey v Montague Rehab. & Pain Mgt., P.C., 84 AD3d 779, 780 [2d Dept 2011]; Logan v Roman, 58 AD3d 810, 810 [2d Dept 2009].) The rationale appears to be that notice of the treating physician's likely testimony is given by the physician's report(s) exchanged pursuant to the Uniform Rules. (See Breen v Laric Entm't Corp., 2 AD3d 298, 299 [1st Dept 2000]; Overeem v Meuhoff, 254 AD2d 398, 400 [2d Dept 1998].)

Uniform Rule §202.17 (h) provides, "Unless an order to the contrary is made or unless the judge presiding at the trial in the interests of justice and upon a showing of good cause shall hold otherwise, a party seeking to recover damages shall be precluded at the trial from offering in evidence . . . all . . . records . . . not made available pursuant to this rule, . . . nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule." (22 NYCRR §202.17 [h].) [*9]

The preclusion of evidence required by the quoted provision is predicated upon a party's failure to exchange a report only where exchange is required by some other provision of the Rule. (See Diamanstein v Friedman, 199 AD2d 458, 459 [2d Dept 1993]; Peterson v West, 134 AD2d 668 [3d Dept 1987]; see also Padovani v Miller, 8 AD3d 251, 252 [2d Dept 2004].) Here, the only applicable exchange requirement is found in §202.17 (g), providing, "If any party desires at the trial to offer the testimony of additional or examining medical providers other than those whose medical reports have been previously exchanged, the medical reports of such medical

providers, complying with the requirements of paragraph (b)(1) of this section, shall be served upon all parties at least 30 days before trial" (see 22 NYCRR §202.17 [g].)

In opposition, Plaintiff notes that, in opposition to Defendants' motion for a Frye hearing, Plaintiff provided Defendants with a copy of Dr. Grant's December 10, 2010 report and an affirmation of Dr. Grant in which, among other things, she describes her treatment of Plaintiff (see Affirmation of Irene Grant M.D. [undated], ¶¶ 50-71.) Moreover, Plaintiff contends that on June 30, 2011 Defendants were given an authorization for Dr. Grant's treatment records for Plaintiff; that on October 24, 2011 Plaintiff gave Defendants a CD containing "bates-stamped" copies of all of Plaintiff's medical records; and that on October 25, 2011 Plaintiff sent "bates-stamped" copies of Dr. Grant's records to Defendants.

In reply, Defendants submit an affirmation by Arthur Xanthos, Defendants' lead attorney, in which he disputes having been given an authorization for Dr. Grant's treatment records on June 30, 2011, but Mr. Xanthos ignores a copy of his July 13, 2011 list of 33 requested authorizations, which does not include Dr. Grant. Moreover, neither Mr. Xanthos's affirmation, nor the affidavit of legal secretary Iris Frank, nor the reply affirmation of Elizabeth L. Knapp, disputes having received the "bates-stamped" copies of Dr. Grant's treatment records that, Plaintiff's counsel asserts, were hand-delivered on October 25, 2011. Ms. Knapp's assertion that "the file contains no treatment records in connection with Dr. Grant" (see Reply Affirmation in Further Support of Defendants' Motion In Limine to Exclude Testiomony [sic] of Dr. Irene Grant ¶ 12) is not sufficient evidence that the records were not received.

Perhaps as importantly, Defendants offer no explanation for not having made any attempt to obtain Dr. Grant's treatment records during the approximately 10 months that have passed since they, admittedly, knew of Dr. Grant's treatment of Plaintiff from her testimony at the evidentiary hearing, and the service of this motion. Nor is there any affirmation of good faith effort to resolve the issue, which is required to accompany any motion related to disclosure. (See Uniform Civil Rules for the Supreme Court and the County Court §202.7; 22 NYCRR §202.7; see Natoli v Milazzo, 65 AD3d 1309, 1310-11 [2d Dept 2009].)

There is no evidence that, before making this motion, Defendants' counsel made a single attempt to obtain a copy of Dr. Grant's treatment records, even though at the time the motion was made Plaintiff was not yet in violation of Uniform Rule §202.17 (g), since more than 30 days [*10]remained before trial. Under these circumstances, the Court cannot ignore Plaintiff's contention that "[t]his is a frivolous motion and costs should be assessed pursuant to 22 NYCRR section 130.1-1 (a)" (see Affirmation in Opposition to Defendants' Motion to Preclude Dr. Grant ¶ 11.) At the final pre-trial conference, now scheduled for October 29, the parties shall be prepared to address the issue, including, if either be so advised, the presentation of testimony or other evidence.

Preclusion of "Notices of Violation"

Defendants seek to "[e]xclud[e] Notices of Violation issued to the defendants and any testimony thereof or mention of the same" (see Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 12.) Defendants fail to provide a copy of any Notice of Violation that they seek precluded, but rather provide copies of records of two complaints, dated respectively, June 14, 2007 and March 11, 2008, made by Plaintiff to the New York City Department of Housing Preservation and Development, Division of Code Enforcement ("DHPD").

To the extent, however, that Plaintiff should seek to introduce the complaints into evidence to prove the existence of the conditions described therein, including mold, the Court would rule them inadmissible as hearsay. "It is a general rule that the evidence of a witness can never be corroborated or confirmed by proof that the witness stated the same facts testified to in court on some occasion when not under oath." (People v O'Sullivan, 104 NY 481, 486 [1887]; see also People v Rosario, 17 NY3d 501, 511-12 [2011]; People v Clarke, 173 AD2d 550, 551 [2d Dept 1991] [civilian complaint] ["a party may not bolster the testimony of his or her witness by showing that they have made prior consistent statements"].)

In opposition, Plaintiff submits a copy of a Violation Summary Report, purportedly coming from DHPD, which shows that 11 Notices of Violation were issued at times from June 28, 2007 until November 25, 2008 with respect to described conditions in Plaintiff's apartment. The Violation Summary Report is not rendered admissible as evidence, nor are the underlying Notices of Violation provided. The Court notes that Plaintiff proposes to call as witnesses at trial two DHPD employees whose inspections of the apartment were the bases for the issuance of the Notices of Violation, but Plaintiff does not addresses how, if at all, those witnesses will provide a foundation for the admissibility at trial of the Violation Summary Report or one or more of the listed Notices of Violation. (See Haleemeh M.S. v MRMS Realty Corp, 28 Misc 3d 443, 450-51 [Sup Ct, Kings County 2010].)

In reply, Defendants submit a copy of a Building Registration Summary Report that shows the same Notices of Violation listed on the Violation Summary Report submitted by Plaintiff, and, like Plaintiff, fails to render the document admissible as evidence or provide copies of the underlying Notices of Violation. Defendants' contention that further adjudicatory proceedings were required on the Notices of Violation pursuant to New York City Charter §1049-a is specious, since the cited provision refers only to matters within the jurisdiction of the [*11]Environmental Control Board, and Defendants cite to no statute, rule, or case authority that the Notices of Violation were subject to any further administrative or adjudicatory proceeding before the noticed conditions were required to be remedied.

The Court also notes that violations of the Housing Maintenance Code, including §27-2005 relied upon by Plaintiff, may be admissible as some evidence of negligence. (See Elliot v City of New York, 95 NY2d 730, 736-37 [2001]; Hepperman v MG Yorkville, LLC, 2009 NY Slip Op 30557 [U], ** 5 [Sup Ct, NY County 2009].)

Preclusion of Testimony by Edward Olmstead

Defendants seek to preclude the testimony and test results of Edward Olmstead, an industrial hygienist, who Plaintiff notices to testify, among other things, that "as a result of the chronic, recurrent and persistent dampness and water incursion growth, colonization and existence of molds, fungi, bacteria, and mycotoxins are present in plaintiff's apartment and such conditions are hazardous to human life" (see Plaintiff's Expert Disclosure Pursuant to CPLR 3101 (d) for Edward Olmstead dated November 4, 2011.) Mr. Olmstead "conducted a microbial inspection" in Plaintiff's apartment on October 20, 2011.

Defendants contend that Edward Olmstead's "testing and sampling of the apartment, done one time, three years after the alleged incident, and one year after plaintiff vacated the apartment, is not probative of the environmental condition in plaintiff's apartment at the time of plaintiff's alleged mold exposure, and . . . that such one time testing is methodologically deficient and contrary to generally accepted practice in the industrial hygienist community." (See Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 2.)

Defendants rely on Fraser v 301-52 Townhouse Corp. (57 AD3d 416 [1st Dept 2008]), in which the First Department held that the plaintiffs' claim for alleged mold-related illness should be dismissed because "plaintiffs failed to offer a reliable measurement of the level of mold in the subject apartment" (see id. at 420.) "A textbook that plaintiffs placed into evidence at the hearing states that an estimate of average inhalation exposure should be based on sampling at least three times a day for at least three consecutive, representative days, with duplicate samples for all analyses"; but "[p]laintiffs' environmental expert . . . collected only two indoor samples within a short time span on the same day, which, according to plaintiffs' own authority, was insufficient." (See id.; see also Jagger v Katz Park Ave. Corp., 33 Misc 3d 139 [A], 2011 NY Slip Op 52104 [U] [App Term, 1st Dept 2011] ["plaintiff's environmental expert merely collected indoor air samples on a single day, a showing insufficiently reliable to demonstrate the level of toxicity, if any, in plaintiff's apartment"].)

Defendants also rely on the unsworn opinion of their noticed industrial hygienist, Veronica Kero, that "before mold air or surface testing is performed in an apartment, a thorough cleaning and ventilation is needed due to the fact dust and debris contain mold" (see Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 2.) [*12]

It seems clear to this Court that a determination against the plaintiff in one case, based upon the evidence introduced by the plaintiff in that case, cannot determine another plaintiff's case; and that an expert's opinion as to the methodology used by another party's expert cannot simply be accepted by the court over the opinion of that other expert.

More problematic is Defendants' contention that because Mr. Olmstead's inspection was conducted "three years after the alleged incident, and one year after plaintiff vacated the apartment, [it] is not probative of the environmental condition in the apartment at the time of plaintiff's alleged mold exposure" (see Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 2.) Whether characterized in terms of relevance or as "speculation," the passage of time between an accident, or in this case exposure to an allegedly harmful agent, and the date of the inspection or other investigation that is proffered as foundation for an expert's opinion may, without more, render the opinion inadmissible. (See Groninger v Village of Maroneck, 17 NY3d 125, 129-30 [2011]; DiSanza v City of New York, 11 NY3d 766, 767 [2008]; Rui-Jiau Liu v City of White Plains, 95 AD3d 1192, 1194 [2d Dept 2012]; Miller v Kings Park Cent. School Dist., 54 AD3d 314, 315 [2d Dept 2008]; Hyland v City of New York, 32 AD3d 822, 824 [2d Dept 2006]; Reyes v City of New York, 29 AD3d 667, 668 [2d Dept 2006]; McCarthy v State of New York, 167 AD2d 516, 517 [2d Dept 1990].)

Mr. Olmstead's October 20, 2011 report does not purport to render an opinion that the conditions he inspected on that day were the same as those to which Plaintiff was exposed during his occupancy of the apartment (see Rui-Jiau v City of White Plains, 95 AD3d at 1194), which would, in any event, appear to undermine Plaintiff's theory as to the development of the harmful condition over time; nor does Mr. Olmstead provide the basis for "relation-back" testimony, i.e., using his observations and test results as bases for "extrapolating" what the conditions must have been during Plaintiff's occupancy (see Romano v Stanley, 90 NY2d 444, 450 n [1997]; People v O'Connor, 290 AD2d 519, 520 [2d Dept 2002] ["retrograde extrapolation"].)

Indeed, Defendants may prove too much in that their noticed expert, Veronica Kero, inspected the apartment on February 19, 2010, and her report dated March 8, 2010 suffers from the same deficiencies as Mr. Olmstead's. The Court has noted that the expert disclosure for neither expert limits the proposed testimony to opinions based on observations and test results on the expert's respective inspections, and the Court is not being asked to limit the testimony of either expert on those other subjects.

But, absent stipulation of the parties, neither expert will be permitted to testify to observations and test results on inspection, nor any opinion based thereon, without first

establishing, probably outside the presence of the jury, that the proposed testimony is relevant and non-speculative.

The Affidavit of Veronica Kero, submitted by Defendants for the first time in reply, has not been considered. (See Bednoski v County of Suffolk, 67 AD3d 616, 617 [2d Dept 2009]; Levine v Fogotson's Cent. Auto. & Elec., Inc., 41 AD3d 552, 553 [2d Dept 2007]; Jackson-[*13]Cutler v Long, 2 AD3d 590 [2d Dept 2003].)

In sum, Plaintiff's motion for a unified trial is granted; that aspect of Plaintiff's motion to admit documents marked into evidence at trial is granted in part in accordance with this opinion, and the parties shall be prepared to address the open issues at the final pre-trial conference, now scheduled for October 29, 2012; that aspect of Plaintiff's motion to preclude references to drug use in his medical records is granted in part in accordance with this opinion; Defendants' motion to limit evidence of Dr. Grant's treatment of Plaintiff is denied, and the parties shall be prepared at the final pre-trial conference to address Plaintiff's request for costs pursuant to Rule 130; Defendants' motion to preclude "Notices of Violation," understood as seeking preclusion of the complaint records included with the papers, is granted; Defendants' motion to preclude certain testimony of Edward Olmstead is granted in accordance with this opinion.

October 4, 2012____________________

Jack M. Battaglia

Justice, Supreme Court