Cabral v. 570 West Realty, LLC

• Decision Date: 04 May 2010
• Parties: Griselda CABRAL, et al., respondents, v. 570 WEST REALTY, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 373

73 A.D.3d 674

Griselda CABRAL, et al., respondents,

v.570 WEST REALTY, LLC, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 4, 2010.

Cozen O'Connor, New York, N.Y. (Vincent P. Pozzuto of counsel), for appellant.

Krieger, Wilansky & Hupart, Bronx, N.Y. (Brett R. Hupart of counsel), for respondents.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Martin, J.), dated July 1, 2009, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs, a mother and her three children, alleged that the infant plaintiffs' exposure to a severe mold condition in the family's apartment caused the infant plaintiffs to develop asthma. The plaintiffs were tenants in the apartment located in a building owned by the defendant. The defendant moved forsummary judgment dismissing the complaint, arguing that mold was not the cause of the infant plaintiffs' asthma and that it was not negligent as it properly abated the mold condition after receiving notice of its existence. The Supreme Court denied the motion. We affirm.

The defendant failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law on the issue of causation. The defendant submitted the expert affirmations of a physician who opined that mold was not the cause of the infant plaintiffs' asthma. An expert opinion on causation should set forth a plaintiff's exposure to a toxin, whether the toxin is capable of causing the particular illness (general causation), and whether the plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation) ( see Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114). The defendant, as the proponent of a summary judgment motion, was required to demonstrate, through " 'expert evidence based on a scientifically-reliable methodology' ( Zaslowsky v. J.M. Dennis Constr. Co. Corp., 26 A.D.3d 372, 374, 810 N.Y.S.2d 484), that there was no causal link between the [infant plaintiffs'] alleged injuries" and their exposure to mold ( Cinquemani v. Old Slip Assocs., LP, 43 A.D.3d 1096, 1097, 842 N.Y.S.2d 85). The affirmations of the defendant's expert fell far short of this standard.

The expert did not opine that mold is incapable of causing asthma (general causation) and his affirmations do not address whether the scientific community generally accepts or rejects the theory that mold can cause asthma ( cf. Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114; Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266). Since this expert wholly failed to address the issue of general causation, the defendant failed to meet its prima facie burden on that element ( see Parker v. Mobil Oil Corp., 7 N.Y.3d at 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114).

The expert affirmations proffered by the defendant also were insufficient to demonstrate a lack of specific causation (i.e., that the infant plaintiffs were exposed to insufficient levels of mold to cause their asthma, or that their asthma was caused by some other factor). The expert's opinion on this issue is wholly conclusory and unsupported. After physically examining the infant plaintiffs and reviewing their medical records, the expert merely stated that there was no evidence "anywhere in the records or history that exposure to mold, fungi or any other environmental factor is a causative or aggravating factor" of the infant plaintiffs' asthma. No furtherexplanation was provided. Such "bare conclusory assertions" were insufficient to demonstrate the absence of any triable...