New York Property Owners May Be Liable For Injury Caused By Mold Contamination
Ganfer Shore LLP - New York Office
|April 25, 2012|
Previously published on April 2012
An owner of residential property may be liable for personal injuries caused by mold contamination, according to the recent appellate decision in Cornell v 360 W. 51st St. Realty, LLC, 939 N.Y.S.2d 434, 2012 N.Y. Slip Op. 01643 (App. Div. 1st Dep’t Mar. 6, 2012).
This case was brought by a tenant who had lived since 1997 in an apartment located directly above a basement. During the summers of 2002 and 2003, flooding resulted in water damage in the basement stairwell and walls. In addition, a broken steampipe released steam in the plaintiff's apartment, and she noticed a small amount of mold in her bathroom. The tenant asserted that when she entered the bathroom, she began to feel ill, experiencing a body rash, shortness of breath, fatigue, disorientation and headaches. The landlord placed a dehumidifier in the bathroom and advised the tenant to wash the area with bleach. The tenant did so and her symptoms disappeared.
A new landlord then purchased the building and began renovations in the basement. On the day debris removal commenced, the tenant experienced symptoms including dizziness, chest tightness, congestion, shortness of breath, a rash, swollen eyes and a metallic taste in her mouth. She left the apartment due to her difficulty in breathing and informed the landlord that she was unable to live in the apartment due to the ongoing renovation work and was withholding her rent. She found another place to live and never again slept in the apartment.
Plaintiff sued both the former and current landlords, as well as an owner of one of the landlords, for injuries allegedly sustained as a result of her exposure to mold. Both sides moved for summary judgment, relying on expert testimony. The plaintiff’s treating physician opined that exposure to damp buildings with excessive and atypical mold contamination is a recognized cause of respiratory health complaints and conditions, and that to a reasonable degree of medical certainty, the tenant’s symptoms were caused by exposure to building dampness and to excessive and atypical mold exposure, over time, at her apartment. The physician detailed a series of tests and examinations supporting his conclusion that the tenant’s symptoms resulted from mold, as well as peer-reviewed medical studies that found statistically significant relationships between visible mold growth and eye, nose and throat/respiratory symptoms. On the other hand, the landlords’ expert opined that mold was “ubiquitous” in the environment and that mold located under floorboards “generally constitute[s] no significant exposure.” The defense expert concluded that molds “caused no significant, objectively documented illness” to the tenant, but acknowledged that he had merely reviewed her medical records rather than examining her.
A lower court granted the landlords’ motion to dismiss the tenant’s claims, on the ground that a precedent known as Fraser v. 301-52 Townhouse Corp. had previously held that insufficient epidemiological evidence existed to establish that mold conditions can cause illnesses such as those suffered by the tenant. The lower court found that the evidence provided by the tenant in this case was comparable to the evidence held insufficient in Fraser, so that dismissal was required.
The tenant appealed, and the same appellate court reversed the dismissal and reinstated the tenant’s claims, stating that the lower court had misinterpreted the Fraser decision. That decision, the court said, had not been intended to entirely bar claims based on the theory that exposure to toxic mold may, under certain circumstances, give rise to respiratory and other ailments. The court observed that Fraser did “not set forth any general rule that dampness and mold can never be considered the cause of a disease, only that such causation [had] not been demonstrated by the evidence presented” by the plaintiffs in that case, with the degree of reliability required for scientific evidence to be admissible under New York law.
In this case, on the other hand, the tenant had provided sufficient evidence to survive a summary judgment motion. Legitimate support existed for the opinions of the tenant’s expert that, as a general matter, toxic mold can cause illnesses in humans. The expert’s opinions enjoyed support in existing medical data, studies, and literature finding statistically significant relationships between mold and respiratory maladies. The court also found that the tenant had provided sufficient evidence of causation in her own specific case, given the evidence confirming the presence of mold in her apartment, the medical opinion that the tenant’s exposure to the mold and its by-products caused her ailments, and the medical opinion that she still exhibited hypersensitivity reactions. After analyzing the evidence before it in detail, the court concluded that plaintiff had provided sufficient evidence of mold-related injury to survive the landlords’ summary judgment motion. A trial would be necessary at which a fact-finder could evaluate the evidence, the court concluded.
However, the court dismissed a claim by the tenant against the individual defendant who owned shares in the corporation that owned the building, holding that no basis had been provided for imposing liability against the individual rather than the corporation.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
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