Kent v. 534 East 11th St.

• Citation: 80 A.D.3d 106,912 N.Y.S.2d 2
• Parties: Gill KENT, Plaintiff-Respondent, v. 534 EAST 11TH STREET, et al., Defendants-Appellants. [And A Third-Party Action].
• Decision Date: 28 October 2010
• Court: New York Supreme Court Appellate Division

912 N.Y.S.2d 2

80 A.D.3d 106

Gill KENT, Plaintiff-Respondent,

v. 534 EAST 11TH STREET, et al., Defendants-Appellants.[And A Third-Party Action].

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

Oct. 28, 2010.

O'Connor Redd, LLP, White Plains (John P. Grill of counsel), for appellants.

Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York (Serge Joseph of counsel), for respondent.

RICHARD T. ANDRIAS, J.P., JAMES M. CATTERSON, DIANNE T. RENWICK, ROSALYN H. RICHTER, NELSON S. ROMÁN, JJ.

CATTERSON, J.

This action reaches us as a result of the plaintiff's attorneys reframing their arguments in a way obviously designed to evade the statute of limitations. This does not salvage plaintiff's complaint but serves only to illustrate why the motion court should have adhered to its original ruling granting summary judgment to the defendants, and not permitted revisitation by granting plaintiff's motion for reargument.

The plaintiff initially asserted causes of action in negligence, constructive eviction, damages and nuisance, but, on appeal she reframes these as causes of action arising out of a breach of contract. In her brief, the plaintiff states unequivocally: "the gravaman ( sic ) of this action is in breach of contract." More specifically, she details each of her four causes of action as a breach of the proprietary lease. For example, she states that her third cause of action is for "money damages based on defendants' negligent performance of work required under the proprietary lease " (emphasis added).

However, the plaintiff did not include a copy of the proprietary lease in any of her submissions to the court, and the lease therefore is not before this Court. This omission should in itself be sufficient reason to dismiss the complaint since it is well established that a court must know what an agreement contains before it can determine whether there has been a breach of that agreement. See e.g. Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482, 548 N.Y.S.2d 920, 923, 548 N.E.2d 203, 206 (1989). Further, the plaintiff has added, for the first time on appeal, a cause of action for breach of thewarranty of habitability alleging that the defendants through negligent construction work caused her apartment to become contaminated with toxins and thus rendered it uninhabitable.

Even if this Court were to examine the claims in light of a breach of that warranty, it would not help the plaintiff. For the reasons set forth below, this Court agrees with the defendants that there is no evidence in the record, and discovery cannot yield any evidence, as a matter of law, to raise a triable issue of fact as to whether between 2002 and 2006 contaminants existed in the plaintiff's apartment at sufficient levels to constitute a breach of the warranty of habitability by the defendants.

This action arises from an incident in 2002, after defendants retained a contracting company to work on the roof of the plaintiff's building on East 11th Street, Manhattan. The plaintiff alleges that when work commenced, the contractors set up a scaffold outside plaintiff's living-room window. The plaintiff claims that, at the end of each day, the workers threw rubble off the roof into the alley leading to the backyard, causing clouds of dust to enter plaintiff's apartment on a regular basis. According to the plaintiff's summons and complaint, this resulted in health problems for her.

Four years later, in 2006, the plaintiff hired JLC Environmental Consultants (hereinafter referred to as "JLC") to study and report on the physical conditions of the apartment. Evan Browne, a JLC employee, investigated from July 2006 through August 2006, and issued a report on September 5, 2006. The report stated that the apartment contained heavy metals, but that the source of the metals was unclear.

Subsequently, JLC tested the apartment again. A report, dated October 19, 2006, stated that levels of heavy metal concentration were generally "below the detection limit." ¹ Nevertheless, the plaintiff moved out of the apartment in November 2006 and sublet the premises to a third party.

Eighteen months after that report, in May 2008, the plaintiff commenced this action stating causes of action for: (1) nuisance; (2) money damages; (3) negligence; and (4) constructive eviction.The complaint further alleged that, " within a matter of days " (emphasis added) after the start of the work, plaintiff began experiencing, inter alia, extreme fatigue and bronchial symptoms followed by bone and joint pain and swelling, skin eruptions, hair loss, loosening teeth, ridged and splitting nails, thyroid collapse, pulmonary disorder, weight gain and cognitive impairment affecting her memory, concentration and balance.

The defendants answered and set forth affirmative defenses, including statutes of limitations, failure to state a cause of action and destruction of evidence. At the time of the filing of the bill of particulars, the only material provided in support of the claim was the JLC report which indicated "a largely successful" cleanup in removing contaminated dust. The report alluded to the existence of the prior tests, and the defendants requested that those results be provided, if such tests existed. The plaintiff did not provide copies of such tests.

In December 2008, the defendants moved for summary judgment dismissing the complaint, or an order compelling the plaintiff to provide initial environmentaltesting results and to submit to a physical examination. The defendants also sought, inter alia, an order striking plaintiff's health ailments on the grounds that her complaint was not a personal injury action. The defendants argued that the action was barred by the statute of limitations, that there was a lack of causation between alleged toxic chemicals and plaintiff's complaints, that there was no proof that the plaintiff was exposed to any particular amount of toxic elements, and no proof of what the toxic elements were or whether there were sufficient quantities to cause harm.

The plaintiff opposed and submitted, for the first time, the previous unsworn reports of environmental testing. In reply, the defendants provided a sworn report of an expert who reviewed the new material consisting of the prior environmental reports provided by plaintiff. He opined that the results of the tests could not be used to support plaintiff's assertion of contaminants in the apartment from the renovation work outside.

The plaintiff moved, by order to show cause, to strike the reply or for leave to serve a surreply in response to the defendants' "new arguments." She also requested time to conduct further discovery since the summary judgment motion was made prior to the defendants' compliance with the requirement to supply photographs and documents relating to the renovation.

The defendants opposed, arguing that their expert evidence was not new material but was a response to the new evidence submitted by plaintiff. The plaintiff did not serve a reply.

By order dated March 19, 2009, the court granted the defendants' motion for summary judgment dismissing the complaint. The court concluded that the unsworn reports of Browne, the JLC inspector who took "environmental tests two years [ sic ] [it was in fact four years] after work was commenced" on the building, had no probative weight and failed to raise a triable issue of fact. The court further held that plaintiff had not submitted any admissible evidence that plaintiff was subjected to toxins in the apartment, or any evidence that, if the toxins existed, they were caused by work performed on the building.

The plaintiff moved to renew and reargue the motion, submitting new materials including affidavits from Browne and an affirmation of the plaintiff's physician, Susan Richman, M.D. The defendants opposed and cross-moved for sanctions.

The plaintiff contended that the court failed to appreciate that the motion to dismiss was made prior to discovery. She also argued that the defendants raised new issues in their reply papers, and thus the plaintiff was unable to raise issues with the court to defeat the motion.

On November 16, 2009, the court granted the motion to reargue, and upon reargument, vacated its order of March 19, 2009. The court held that, although it still believed that plaintiff's proof was insufficient to sustain the action, the plaintiff had not had an adequate opportunity to undertake discovery, particularly as it was alleged that the defendants had exclusive knowledge of evidentiary material sufficient to buttress plaintiff's allegations.

For the reasons set forth below, we reverse, and grant summary judgment in favor of the defendants, dismissing the complaint. As a threshold matter, the plaintiff's causes of action in constructive eviction, negligence and damage to property must be dismissed as statutorily time-barred. It is well settled that a cause of action for constructive eviction is governed by a one year statute of limitations.CPLR 215; Jones v. City of New York, 161 A.D.2d 518, 518-519, 555 N.Y.S.2d 788, 789 (1st Dept.1990); Yokley v. Henry-Clark Assoc., 170 Misc.2d 779, 781, 655 N.Y.S.2d 714, 716 (App. Term, 2d Dept.1996) (finding a claim based on constructive eviction is actually one for wrongful eviction and is subject to the one year statute of limitations).

The plaintiff alleges that the contamination of her apartment occurred in 2002, and further alleges that contaminants were detected in 2006. She moved out in November 2006. Her summonsand complaint were filed in May 2008, approximately 18 months later. Hence, the cause of action for constructive eviction is time-barred.

Further, causes of action for negligence and for injury to property are governed by CPLR 214, which provides for a three-year statute of limitations. Likewise, a cause of action for injury to property caused by exposure to toxins must be commenced within three years either from the date of discovery of the injury...