Williams v. Graf, Index No. 111935/2009

• Court: United States State Supreme Court (New York)
• Writing for the Court: LUCY BILLINGS
• Citation: 2014 NY Slip Op 30896
• Decision Date: 28 March 2014
• Docket Number: Index No. 591055/2010,Index No. 111935/2009
• Parties: SARA L. WILLIAMS, Plaintiff v. SOL GRAF and LENBROOK CONDOMINIUM, Defendants SOL GRAF, Third Party Plaintiff v. 149-151 EAST 62ND STREET REALTY CO., Third Party Defendant

2014 NY Slip Op 30896

SARA L. WILLIAMS, Plaintiff
v.
SOL GRAF and LENBROOK CONDOMINIUM, Defendants
SOL GRAF, Third Party Plaintiff
v.
149-151 EAST 62ND STREET REALTY CO., Third Party Defendant

Index No. 111935/2009
Index No. 591055/2010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FILED: April 9, 2014
DATED: March 28, 2014

LUCY BILLINGS, J.S.C.;

I. BACKGROUND

Plaintiff sues to recover damages for personal injuries caused by toxic mold in unit 3B, which she rented during 2004 to 2 009 from its owner defendant Graf, and which was below unit 4B owned by third party defendant 149-151 East 62nd Street Realty Co. in a condominium building at 151 East 62nd Street, New York County, where defendant Lenbrook Condominium was the condominium association. In a third party action, Graf seeks contribution and indemnification from third party defendant. It moves for summary judgment dismissing the third party complaint. C.P.L.R. § 3212(b). Graf and Lenbrook Condominium separately moved for

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summary judgment dismissing the complaint and any cross-claims against defendants. In a stipulation dated September 11, 2012, however, plaintiff discontinued her action against Lenbrook Condominium rendering its summary judgment motion against her academic. At oral argument February 26, 2013, Graf discontinued his cross-claim for indemnification against Lenbrook Condominium, leaving its motion seeking dismissal of only his cross-claim for contribution to be determined, which now would be converted to a third party claim. For the reasons explained below, the court grants third party defendant's motion, grants the remainder of Lenbrook Condominium's motion, and grants Graf's motion in part.

II. SUMMARY JUDGMENT STANDARDS

The moving parties, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact, C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). If the moving parties satisfy this standard, the burden shifts to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N. Y. 3 d 743, 744 (2004). In evaluating the evidence for purposes of the parties motions, the court

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construes the evidence in the light most favorable to the opponents. Vega v. Restani Constr. Corp., 18 N.Y.3d at 5 03; Cahill v. Triborouqh Bridge & Tunnel Auth., 4 N.Y.3d 35, 37 (2004) .

III. DEFENDANT GRAF'S AND THIRD PARTY DEFENDANT'S LIABILITY

Premises owners owe a duty to maintain their premises in a reasonably safe condition. Bucholz v. Trump 767 Fifth Ave., LLC, 5 N.Y.3d 1, 8 (2005); Hasley v. Abels, 84 A.D.3d 480, 482 (1st Dep't 2011); Alexander v. New York City Tr., 34 A.D.3d 312, 313 (1st Dep't 2006). To hold defendant and third party defendant liable for an unsafe condition on their premises due to their negligence, plaintiff and third party plaintiff must demonstrate that defendant and third party defendant created the condition or received actual or constructive notice of the condition. Hasley v. Abels, 84 A.D.3d at 482; Alexander v. New York City Tr., 34 A.D.3d at 313; Mandel v. 370 Lexington Ave., LLC, 32 A.D.3d 302, 303 (1st Dep't 2006); Mitchell v. City of New York, 29 A.D.3d 372, 374 (1st Dep't 2006).

A. Plaintiff's Claims Against Graf

Since plaintiff does not claim in her complaint or bill of particulars that defendant Graf created the mold condition, Graf's liability depends on his notice of the condition. While plaintiff testified at her deposition that water leaked into unit 3B as early as 2005, she did not testify when she reported the leakage to Graf. The parties do not dispute, however, that she wrote a letter dated November 24, 2006, to Graf complaining of

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several problems in the unit, including the bedroom ceiling leaking water during heavy rainfalls and the possible development of mold in the ceiling because of brown stains there, and requesting testing for mold and remediation of any mold discovered.

Notice of a mold condition nonetheless requires indicia other than wetness, such as musty or moldy odors or entry of particulates in the premises. Litwack v. Plaza Realty Invs., Inc., 11 N.Y.3d 820, 822 (2008); Lark v. Leon B. Dematteis Assoc., LLC, 48 A.D.3d 354, 355 (1st Dep't 2008); Daitch v. Naman, 25 A.D.3d 458, 459 (1st Dep't 2006); Beck v. J.J.A. Holding Corp., 12 A.D.3d 238, 240 (1st Dep't 2004). Plaintiff's letter indicates only leakage and brown stains.

Plaintiff also presents a report dated May 7, 2009, of mold testing she performed with a home test kit and relies on a report from Envirocheck Inc. dated May 26, 2009, on which Graf relies. Both reports demonstrate mold in unit 3B, but the home test report is unsworn and thus inadmissible. E.g., Arcara v. Metro-North R.R., 103 A.D.3d 589 (1st Dep't 2013). Although the witness who attests to the Envirocheck report did not perform the tests reported, and no evidence demonstrates his competence in the scientific measurement of the levels of allergens or toxins in the apartment, Rivera v. Crotona Park E. Bristow Elsmere, 107 A.D.3d 550, 551 (1st Dep't 2013); Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 50 A.D.3d 503, 504 (1st Dep't 2008), since Graf relies on the report from Envirocheck to support his

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motion, plaintiff may rely on it in opposition. Mitchell v. Calle, 90 A.D.3d 584, 585 (1st Dep't 2011); Ayala v. Douglas, 57 A.D.3d 266, 267 (1st Dep't 2008); Navedo V. Jaime, 32 A.D.3d 788, 789-90 (1st Dep't 2006); Thompson v. Abbasi, 15 A.D.3d 95, 97 (1st Dep't 2005) . See Joseph v. Board of Educ. of the City of N.Y., 91 A.D.3d 528, 529 (1st Dep't 2012); Dembele v. Cambisaca, 59 A.D.3d 352 (1st Dep't 2009); Hernandez v. Almanzar, 32 A.D.3d 360, 361 (1st Dep't 2006). Even if the court considers both reports, they still establish mold in the unit only as of May 2009, after plaintiff moved out of the unit. Other than these reports, plaintiff presents no evidence of mold in the apartment. Rivera v. Crotona Park E. Bris'tow Elsmere, 107 A.D. 3d at 551; Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. Partnership, 50 A.D.3d at 504; Beck v. J.J.A. Holding Corp., 12 A.D.3d at 239.

Since no evidence supports the mold condition before May 2009, Graf received no actual notice of a mold condition before then. A mere possibility of discovering a condition, as suggested by plaintiff's November 2006 letter, does not amount to actual notice of that condition. Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d 319, 326 (1st Dep't 2006), aff'd, 8 N.Y.3d 931 (2007). See Plaza v. New York Health & Hosps. Corp. (Jacobi Med. Ctr.). 97 A.D.3d 466, 468 (1st Dep't 2012), aff'd, 21 N.Y.3d 983 (2013). A finding that her November 2006 letter provided actual notice to Graf of a mold condition would require facts not supported by the record: his awareness of a recognized sign of mold. See Plaza v. New York Health & Hosps. Corp.,

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(Jacobi Med. Ctr.), 97 A.D.3d at 469, aff'd, 21 N.Y.3d 983; Branham v. Loews Orpheum Cinemas, Inc., 31 A.D.3d at 325, aff'd, 8 N.Y.3d 931.

Regarding constructive notice, Graf testified at his deposition that he did not observe any leaks, stains, or other evidence of leaks or detect any signs of mold in his unit before plaintiff's tenancy. When he inspected the unit during her tenancy before the repair of the terrace for unit 4B, he observed small water stains only in the bedroom closet ceiling and no signs of mold. The undisputed evidence establishes that by the spring of 2007 and continuing after the repair of third party defendant's terrace, plaintiff no longer complained of water leaking through her bedroom ceiling, further water stains in her unit, or particulates, odors, or other signs of mold. Based on this evidence and plaintiff's testimony that her symptoms of exposure to mold did not manifest until the spring of 2007, as well as her testimony conceding that her November 2006 letter merely speculated about a mold condition, Graf met his initial burden to demonstrate lack of constructive notice. Pintor v. 122 Water Realty, LLC, 90 A.D.3d 449, 451 (1st Dep't 2011); Lance v. Den-Lvn Realty Corp., 84 A.D.3d 470 (1st Dep't 2011); Rodriguez v. 705-7 E. 179th St. Hous. Dev. Fund Corp., 79 A.D.3d 518, 519-20 (1st Dep't 2010); Early v. Hilton Hotels Corp., 73 A.D.3d 559, 561-62...