Clark v. N.Y.C. Hous. Auth.

• Decision Date: 14 September 2022
• Docket Number: 20 Civ. 251 (PAE) (GWG)
• Parties: LA'SHAUN CLARK, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, NEW YORK INSULATION & ENVIRONMENTAL SERVICES, JLC ENVIRONMENTAL CONSULTANTS, INC., ROCKMILLS STEEL PRODUCTS CORP., Defendants
• Court: U.S. District Court — Southern District of New York

LA'SHAUN CLARK, Plaintiff,
v.
NEW YORK CITY HOUSING AUTHORITY, NEW YORK INSULATION & ENVIRONMENTAL SERVICES, JLC ENVIRONMENTAL CONSULTANTS, INC., ROCKMILLS STEEL PRODUCTS CORP., Defendants

No. 20 Civ. 251 (PAE) (GWG)

United States District Court, S.D. New York

September 14, 2022

REPORT & RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

La'Shaun Clark brings this case against the New York City Housing Authority (“NYCHA”), New York Insulation & Environmental Services (“NYIES”), JLC Environmental Consultants, Inc. (“JLC”), and Rockmills Steel Products Corp., alleging claims for fraudulent concealment and personal injury in connection with her alleged exposure to asbestos and Ardex, a non-asbestos product containing crystalline silica quartz. See Amended Complaint, filed Feb. 12, 2021 (Docket # 156) (“Am. Comp.”). NYCHA, NYIES, and JLC have moved for summary judgment dismissing all claims, and Clark has filed cross-motions for summary judgment against all defendants.^[1]For the reasons explained below, the defendants' motions should be granted and Clark's motions should be denied.

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I. FACTS

Unless otherwise stated, the following facts are taken in the light most favorable to Clark.

Between 2004 and 2012, Clark was a tenant of the Claremont Houses Consolidation in the Bronx, a public housing development owned and managed by NYCHA. Pl. NYCHA Mem. at 4 (admitting allegations in NYCHA 56.1 Statement ¶¶ 1-2). During this time, Clark lived at 1100 Teller Avenue, Apartment 1H, Bronx, New York 10456 (“Apartment 1H”). Id.

Four months prior to Clark's tenancy, on February 9, 2004, an asbestos abatement was performed in Apartment 1H. Id. at 4, 12 (admitting allegations in NYCHA 56.1 Statement ¶¶ 3, 22). NYCHA contracted with NYIES, an abatement services company, to conduct the abatement. Id. at 12 (admitting allegations in NYCHA 56.1 Statement ¶ 22). During the abatement work, NYIES used a product called Ardex, which plaintiff alleges contains crystalline

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silica quartz. See Deposition of Anthony Cardinale, annexed as Ex. C to Sena Decl. (Docket # 271-3) (“Cardinale Tr.”), 98; Deposition of La'Shaun Clark, annexed as Ex. J to Sain Decl. (Docket # 279-10) (“Clark Tr.”), 80, 88.

NYCHA also contracted with JLC, which conducted air monitoring tests following NYIES's abatement work. Pl. NYCHA Mem. at 16 (admitting allegations in NYCHA 56.1 Statement ¶ 30). According to defendants, the abatement went “perfect,” the work was performed “by the book,” Cardinale Tr. 148, and visual inspections by NYIES and JLC, along with air monitoring tests by JLC, confirmed that the conditions in Apartment 1H were not hazardous. See id. 98, 100; Deposition of Jennifer Carey, annexed as Ex. M to Sain Decl. (Docket # 279-13) (“Carey Tr.”), 123-24, 138, 141-43.

Defendants offer the expert report of Dr. Howard Sandler, who asserts that there is no evidence that Clark was exposed to either asbestos or crystalline silica in Apartment 1H and whatever the levels of exposure might have been present would not have been capable of causing harm or disease. See Expert Report of Howard M. Sandler, M.D., annexed as Ex. F to Sena Decl. (Docket # 271-6) (“Sandler Report”), ¶¶ 14-15, 21.

In contrast, Clark asserts in her sworn testimony that the abatement work was flawed, and that she was consequently exposed to asbestos and crystalline silica quartz. See Clark Tr. 11, 8788, 96-98. The basis for her belief that the abatement work caused her exposure is that she has since been diagnosed with medical conditions, including COPD and Lupus, that she contends were caused by the exposure. See id. 87-88. Clark has not consulted or retained an expert in this case. See id. 82-83.

Clark also asserts that prior to signing her lease with NYCHA, she was not informed by NYCHA or anyone else that Ardex had been used. Id. 78-80. According to Clark, had she

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known about the use of Ardex in Apartment 1H, she would not have signed the lease. See Pl. NYCHA Mem. at 32, 44; Pl Reply at 5.

II. LEGAL STANDARD

Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) (“[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.”).

Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (internal quotation omitted), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). See Fed.R.Civ.P. 56(c), (e). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.”

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Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation and quotation omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).

Clark is proceeding pro se and thus we must liberally construe her filings to raise the strongest arguments they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 47475 (2d Cir. 2006). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (punctuation omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).

III. DISCUSSION

We construe Clark's amended complaint as asserting two claims: personal injury and fraudulent concealment, each of which we discuss next. Defendants make a host of arguments that they contend are each by themselves sufficient to require dismissal of one or both claims as to some or all of the defendants. These include arguments that the case is barred by the doctrine of res judicata because Clark years ago brought a case that made similar claims, that the case is barred by the statute of limitations, that there is no evidence that scientific testing ever determined that there were harmful levels of a toxic substance in Apartment 1H after Clark moved in, and that Clark cannot prove causation. See NYCHA Mem. at 18-38; JLC Mem. at 1625; NYIES Mem. at 8-23. As explained below, we find the personal injury claim cannot survive because of the absence of expert testimony as to causation and that the fraudulent concealment

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claim (brought only against NYCHA) fails because of Clark's failure to provide proof of the element of materiality. Accordingly, it is not necessary to address any of the defendants' other arguments.

A. Personal Injury Claim

Clark's personal injury claim is best construed as one for common-law negligence. See generally Am. Comp. at *2-3 (alleging that NYCHA...