Beck v. J.J.A. Holding Corp.

• Decision Date: 16 November 2004
• Docket Number: 4275.
• Citation: 12 A.D.3d 238,785 N.Y.S.2d 424,2004 NY Slip Op 08162
• Parties: CATHERINE BECK, Appellant, v. J.J.A. HOLDING CORP. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 238

785 N.Y.S.2d 424

2004 NY Slip Op 08162

CATHERINE BECK, Appellant, v. J.J.A. HOLDING CORP. et al., Respondents.

4275.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 16, 2004.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 17, 2003, which, to the extent appealed from as limited by the briefs,^* granted defendants' CPLR 3212 motion to dismiss plaintiff's second cause of action for common-law negligence, unanimously affirmed, without costs.

On September 7, 1998, plaintiff's apartment was flooded, severely damaging its flooring and walls. At plaintiff's request, defendant landlord repainted the apartment, and she replaced the carpeting. Plaintiff alleges that thereafter, as a result of the flooding, hazardous mold contaminated her apartment. She asserts that because defendants failed to timely remedy that unsafe condition she contracted a bronchial infection and, eventually, chronic obstructive pulmonary disorder. She avers that because a dangerous accumulation of mold spores is a foreseeable consequence of water seeping into walls, her landlord was negligent and breached its duty to maintain the premises in a safe condition by failing to abate the mold, causing damage to her health, safety and life.

Defendants have denied any liability. In moving for summary judgment, they argue that they did not create the condition and had no actual or constructive notice of it prior to November 1999. They also assert that, in any event, they did not have sufficient time to remedy the hazard before plaintiff moved out of the apartment in December 1999 (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Specifically, defendants stated: "Plaintiff can offer no evidence as to the length of time the alleged mold condition was present in her apartment. The first, and only, piece of evidence regarding the presence of mold is a report from Johns Hopkins, dated November 16, 1999, less than a month before plaintiff moved out of the apartment, but over a year after the time of the flood." Defendants noted that plaintiff testified at her deposition that she was not aware of the elevated mold levels until November 1999 when she received the Johns Hopkins report.

In opposition to defendants' motion, plaintiff asserted that after her landlord repainted her apartment, she noticed brown spots on the walls, and that her apartment had a moldy odor. She alleged that the discoloration of the walls, along with the knowledge of the water damage, should have placed defendant on notice of the likelihood of the mold growth in the apartment. Plaintiff also annexed EPA publications indicating that water damage is likely to cause mold, and her medical reports, all dated after December 1999, which detailed her respiratory problems.

In reply, defendants reiterated that plaintiff had not set forth a prima facie case of negligence because she had not presented...