Kendall v. Amica Mut. Ins. Co.

• Decision Date: 21 January 2016
• Citation: 135 A.D.3d 1202,23 N.Y.S.3d 702
• Parties: Richard K. KENDALL et al., Appellants, v. AMICA MUTUAL INSURANCE COMPANY, Respondent. (Action No. 1.) Holly Kendall et al., Appellants, v. USA Decon et al., Respondents. (Action No. 2.).
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 1202

23 N.Y.S.3d 702

Richard K. KENDALL et al., Appellants,

v.AMICA MUTUAL INSURANCE COMPANY, Respondent. (Action No. 1.)

Holly Kendall et al., Appellants,

v.USA Decon et al., Respondents. (Action No. 2.).

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

Jan. 21, 2016.

Linnan & Fallon, LLP, Albany (Michael J. Hutter of Powers & Santola, LLP, of counsel), for appellants.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Jessica A. Desany of counsel), for Amica Insurance Company, respondent.

A. Smith Law Group, LLP, New York City (Andrea J. Smith of counsel), for USA Decon and another, respondents.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Albany (Benjamin F. Neidl of counsel), for Duct and Vent Cleaning of America, Inc., respondent.

Before: PETERS, P.J., McCARTHY, EGAN JR., DEVINE and CLARK, JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 19, 2014 in Albany County, which, among other things, granted defendants' motions for summary judgment dismissing the complaint(s).

Plaintiffs own a three-level home in the Town of Colonie, Albany County; plaintiffs previously utilized the main and second floors of the structure as their residence and rented out the basement level to a young man and his fiancée. On the morning of April 5, 2009, the Colonie Police Department was told that the male tenant had barricaded himself in the basement apartment and allegedly was threatening suicide, and a patrol officer was dispatched to undertake a welfare check. Later that afternoon, and following unsuccessful attempts to voluntarily extricate the tenant from the apartment, a SWAT team fired CS tear gas canisters into plaintiffs' home. The tenant then was removed from the scene and transported to a local hospital.

Plaintiffs, who initially were not at home and thereafter watched the events unfold from a neighbor's property, returned to their home at approximately 9:00 p.m. When plaintiff Holly Kendall (hereinafter Kendall) went down to the basement to reset the cable box,¹ she began coughing and her eyes and skin started to burn. Although Kendall sought treatment at a local hospital, she left without being seen by a physician or otherwise receiving treatment. Kendall and her husband, plaintiff Richard K. Kendall, returned to their home later that evening and remained there until the following day. After staying with relatives for two days, plaintiffs moved into a local hotel, where they remained for the next 6 ½ months while their home was being remediated, repaired and cleaned.

As a result of the April 2009 incident, plaintiffs filed a claim with their homeowner's insurance carrier, defendant Amica Mutual Insurance Company; Amica, in turn, retained AEGIS Engineering Services to investigate plaintiffs' claim. Although AEGIS solicited bids from a number of remediation contractors, plaintiffs-independent of such efforts-identified and selected defendant USA Decon to perform the tear gas remediation. During the course of such work, which began on or about June 1, 2009 and lasted for approximately nine days, USA Decon employed various methods to clean plaintiffs' property, including utilizing a neutralizing agent known as "Get the Odor Out." As USA Decon was not licensed to perform heating, ventilation and cooling work, it subcontracted such work to defendant Duct and Vent Cleaning of America, Inc. During the course of its work on plaintiffs' property, Duct and Vent utilized a deodorizing agent known as "EnviroCon." The remediation work was completed in June 2009 and, when Kendall did a walk-through of the premises, she did not experience any symptoms. Post-remediation air quality testing conducted by the Occupational & Environmental Health Center of Eastern New York in June 2009 revealed "that the cleanup was thorough and the air in the residence [was] no longer contaminated by the effects of the CS tear gas and powder. No further sampling for CS tear gas [was] recommended."

Plaintiffs returned to their home in October 2009. Although Kendall purportedly began experiencing adverse health effects one month later, plaintiffs continued to live in their home until March 5, 2010, when Kendall allegedly was told by a physician at a local emergency room that she could not return to her residence. Plaintiffs again moved into a local hotel, and neither Kendall nor her spouse thereafter returned to the residence. Subsequent testing of plaintiffs' home for tear gas residue—conducted by Needham Risk Management in March 2010—revealed that "[t]he analyte was detected but at a level too low to be accurately quantified by the method used." Plaintiffs, believing such testing to be invalid, hired Certified Decontamination in November 2010 to conduct further testing of the residence for the presence of tear gas residue and any chemicals used during the decontamination process. Although the general manager of that company, Michael Rowzee, concluded that "the dwelling was not properly decontaminated [and] residue of at least one hazardous compound" remained, actual testing of the residence found no evidence of tear gas; similarly, no evidence of volatile organic compounds above an acceptable level were detected. Rowzee did report, however, that "[c]ompounds consistent with the decontamination of a dwelling using chlorine dioxide/chlorite were found," and that the symptoms reported by plaintiffs were "consistent with an overexposure to chlorine dioxide, sodium chlorite and sodium chlorate."

Plaintiffs commenced action No. 1 against Amica in June 2011 and served an amended complaint in November 2012 alleging, among other things, breach of contract. In the interim, plaintiffs commenced action No. 2 in April 2012 against Amica, Duct and Vent, USA Decon and its president, defendant Robert Demaret, alleging, among other things, negligence and toxic tort and seeking to recover for the injuries allegedly sustained.² Supreme Court granted Amica's subsequent motion to dismiss the complaint in action No. 1 as to the breach of contract cause of action, finding such claim to be time-barred, and joined the surviving causes of action with those asserted in action No. 2. Following discovery, defendants each moved for summary judgment dismissing the complaint(s) and any asserted cross claims against them. After reviewing the voluminous record before it, Supreme Court granted defendants' respective motions for summary judgment and dismissed the complaint(s) against them in their entirety. This appeal by plaintiffs ensued.³

We affirm. "It is well-established that an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that [the] plaintiff was exposed to sufficient levels of the toxin to cause the illness [alleged] (specific causation)" (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ; see Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784, 986 N.Y.S.2d 389, 9 N.E.3d 884 [2014] ; Lindkvist v. Travelers Ins., 111 A.D.3d 452, 452, 974 N.Y.S.2d 421 [2013] ; Nonnon v. City of New York, 88 A.D.3d 384, 394, 932 N.Y.S.2d 428 [2011] ; Jackson v. Nutmeg Tech., Inc., 43 A.D.3d 599, 601, 842 N.Y.S.2d 588 [2007] ). Although neither a "precise quantification" nor "an exact numerical value" is required in order to demonstrate specific causation, it remains "a plaintiff's burden to establish [that there was] sufficient exposure to a substance to cause the claimed adverse health effect" (Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d at 784, 986 N.Y.S.2d 389 [internal quotation marks and citation omitted]; see Ivory v. International Bus. Machines Corp., 116 A.D.3d 121, 126, 983 N.Y.S.2d 110 [2014], lv. denied 23 N.Y.3d 903, 2014 WL 1884900 [2014] ; Jackson v. Nutmeg Tech., Inc., 43 A.D.3d at 602, 842 N.Y.S.2d 588 ). As to the quality of proof required, "[t]he professional reliability exception to the hearsay rule ... enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession" (Matter of Greene v. Robarge, 104 A.D.3d 1073, 1074, 962 N.Y.S.2d 470 [2013] [internal quotation marks and citation omitted]; see Matter of Dakota F. [Angela F.], 110 A.D.3d 1151, 1153, 974 N.Y.S.2d 594 [2013], lv. denied 22 N.Y.3d 1015, 981 N.Y.S.2d 346, 4 N.E.3d 356 [2013] ; O'Brien v. Mbugua, 49 A.D.3d 937, 938, 853 N.Y.S.2d 392 [2008] ). That said, "even if the reliability of the evidence is shown, it may not be the sole basis for the expert's opinion on an ultimate issue in the case, but rather it may only form a link in the chain of data which led the expert to his or her opinion" (O'Brien v. Mbugua, 49 A.D.3d at 938, 853 N.Y.S.2d 392 [internal quotation marks, brackets and citation omitted]; see Anderson v. Dainack, 39 A.D.3d 1065, 1067, 834 N.Y.S.2d 564 [2007] ).

Here, in support of their respective motions for summary judgment, defendants submitted, among other things, the material safety data sheet for "Get the Odor Out," various laboratory analyses and test results, the examination before trial testimony of Kendall, her spouse, Demaret (USA Decon), John Van Raalte (Occupational & Environmental Health Center of Eastern New York), Timothy Gerardi (Amica) and Michael Vinick (Duct and Vent), as well as the expert affidavit and report of Jonathan Borak—a board-certified physician in internal medicine, occupational medicine and toxicology. Demaret and Vinick each described the extent of the work performed at plaintiffs' residence, including the substances utilized during the course of the remediation and cleaning processes. Notably, Demaret testified that he had utilized "Get the Odor Out"—an "effective, nontoxic product"—on approximately 500 properties and had never received a single complaint. According to Demaret, he and his crew wore personal protective equipment...