Rivera v. Crotona Park E. Bristow Elsmere

• Decision Date: 20 June 2013
• Citation: 107 A.D.3d 550,2013 N.Y. Slip Op. 04690,968 N.Y.S.2d 48
• Parties: Wany'a RIVERA, an Infant by His Mother and Natural Guardian, Ventesa HEWITT, et al., Plaintiffs–Respondents, v. CROTONA PARK EAST BRISTOW ELSMERE, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 550
968 N.Y.S.2d 48
2013 N.Y. Slip Op. 04690

Wany'a RIVERA, an Infant by His Mother and Natural Guardian, Ventesa HEWITT, et al., Plaintiffs–Respondents,
v.
CROTONA PARK EAST BRISTOW ELSMERE, Defendant–Appellant.

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

June 20, 2013.

[968 N.Y.S.2d 49]

Conway, Farrell, Curtin & Kelly, P.C., New York (Jonathan T. Uejio of counsel), for appellant.

Meagher & Meagher, P.C., White Plains (Christopher B. Meagher of counsel), for respondents.

TOM, J.P., ACOSTA, SAXE, FREEDMAN, JJ.

[107 A.D.3d 550]Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 13, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Contrary to plaintiffs' contention, defendant's motion for summary judgment was not untimely, since the case was marked off the calendar by so-ordered stipulation to allow for the completion of discovery and had not yet been restored when defendant's motion was filed ( Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 109, 824 N.Y.S.2d 3 [1st Dept. 2006] ).

On the merits, defendant made a prima facie showing that the mold condition in plaintiffs' apartment did not cause the infant plaintiff's claimed injuries. It submitted expert evidence establishing that the infant plaintiff's asthma and pulmonary incapacity were caused by genetic and environmental factors not related to the mold condition, including medical records showing the infant plaintiff's significant allergies to cockroaches and cats, the extensive family history of severe asthma, and the presence of cigarette smoke, cockroaches and cats in the apartment.

In opposition, plaintiffs failed to raise a triable issue of fact as to causation ( see Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 449, 824 N.Y.S.2d 584, 857 N.E.2d 1114 [2006] ). They relied solely on an affirmation by the infant plaintiff's former treating physician, who failed to refute defendant's experts' conclusions that the infant plaintiff's asthma and pulmonary incapacity were caused by genetic and environmental factors other than mold ( see Lall v. Ali, 101 A.D.3d 439, 955 N.Y.S.2d 327 [1st Dept. 2012] ). Moreover, the medical records indicate that the treating physician had himself directly attributed the infant plaintiff's...