Holland v. W.M. Realty Management, Inc.

• Decision Date: 14 July 2009
• Docket Number: 2007-11704.,2008-06434.
• Citation: 64 A.D.3d 627,883 N.Y.S.2d 555,2009 NY Slip Op 05844
• Parties: ALEAH HOLLAND et al., Appellants, v. W.M. REALTY MANAGEMENT, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

64 A.D.3d 627

883 N.Y.S.2d 555

2009 NY Slip Op 05844

ALEAH HOLLAND et al., Appellants, v. W.M. REALTY MANAGEMENT, INC., Respondent.

2007-11704.

2008-06434.

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

Decided July 14, 2009.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) so much of an order of the Supreme Court, Kings County (Bayne, J.), dated November 7, 2007, as granted that branch of the defendant's motion which was pursuant to CPLR 3126 to preclude them from offering any evidence at trial pertaining to mold samples which were taken and examined by an environmental inspection firm retained by the plaintiffs' former counsel, and (2) an order of the same court dated May 14, 2008, which denied their motion for leave to renew and reargue their opposition to the defendant's motion.

Ordered that the appeal from so much of the order dated May 14, 2008 as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated May 14, 2008 is reversed insofar as reviewed, on the law and in the exercise of discretion, that branch of the plaintiffs' motion which was for leave to renew is granted, and upon renewal, so much of the order dated November 7, 2007, as granted that branch of the defendant's motion which was pursuant to CPLR 3126 to preclude the plaintiffs from offering any evidence at trial pertaining to mold samples taken and examined by an environmental inspection firm retained by the plaintiffs' former counsel is vacated, and that branch of the defendant's motion is denied; and it is further,

Ordered that the appeal from the order dated November 7, 2007 is dismissed as academic in light of our determination of the appeal from the order dated May 14, 2008; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The plaintiffs allege that they were injured by toxic mold present in their apartment from October 28, 2001, until July 1, 2002. The apartment was managed by the defendant. In mid-July 2002, almost all of the mold was removed by the building's superintendent. Approximately two weeks later, with the cooperation and assistance of the building superintendent, an industrial hygienist from Micro Ecologies, Inc. (hereinafter Micro Ecologies), collected two swab mold samples from a wall and a ceiling cavity of the apartment which were then sent to P&K Microbiologies Services, Inc. (hereinafter P&K), for destructive testing. A small piece of wood from the ceiling cavity was retained by Micro Ecologies. A preliminary report from Micro Ecologies, which included the test report from P&K, indicated the presence of contaminated levels of fungi and bacteria in the two swab samples taken from the apartment.

Micro Ecologies had been retained by the plaintiffs' former counsel. The instant action was commenced on July 28, 2005. Thereafter, the plaintiffs were ordered to make any mold samples in their possession or control available to the defendant for nondestructive testing, pursuant to a preliminary conference order dated January 24, 2006, an order compelling disclosure dated May 31, 2006, and a conditional order of preclusion dated June 14, 2007. When the samples were not made available, the Supreme Court, in its order dated November 7, 2007, granted that branch of the defendant's motion which was to preclude evidence of mold test results. Thereafter, the plaintiff moved for leave to renew and reargue, providing evidence on renewal that the small piece of wood obtained from the ceiling cavity of the apartment retained by Micro Ecologies had been recently located, and that the testable "shelf life" of the swabbed mold samples was approximately only six months, which had long before expired. By order dated May 14, 2008, the court denied the plaintiff's ...