| Cleghorne v City of New York |
| 2012 NY Slip Op 06648 [99 AD3d 443] |
| October 4, 2012 |
| Appellate Division, First Department |
| Wayne Cleghorne et al., Respondents, v City of New Yorket al., Appellants. |
—[*1] Scaffidi & Associates, New York (Anthony J. Scaffidi of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered February 17, 2011,which, insofar as appealed from, denied defendants' motion for summary judgment dismissingthe complaint, unanimously reversed, on the law, without costs, and the motion granted. TheClerk is directed to enter judgment accordingly.
In this action arising from a teacher's alleged exposure to allergens at school, the recordreflects the following: Wayne Cleghorne was a school teacher employed by the New School forArts and Sciences (New School). On August 28, 2000, the New School relocated to 730 BryantAvenue in the Bronx. Shortly after the move, Cleghorne claims she developed respiratoryproblems while cleaning her classroom and storage area at the new location. In November of2000, Cleghorne was diagnosed with asthma. On November 30, 2000, her family practitionerdiagnosed her with bronchitis, and she did not work for approximately a month.
Cleghorne returned to work in early January 2001, but had an asthma attack at the NewSchool on February 2, 2001, and was hospitalized for a week. Cleghorne and her husband filed anotice of claim against the City alleging that her asthma was caused by conditions at the NewSchool and seeking damages.
At the General Municipal Law § 50-h examination on September 26, 2001, Cleghornestated that while cleaning her classroom and a storage room in the new building, she developed apersistent cough, and that subsequently her condition deteriorated. She described the eventsleading to her admission to the hospital, and stated that after discharge, she contacted a physicianfor asthma treatment. He referred her to an allergist. Cleghorne stated that she received weeklymedical treatment following the February 1, 2001 incident, suffered many relapses, and wasoccasionally confined to home for "[a] few months" and bed "[m]any times."
On October 15, 2001, plaintiffs commenced this action against the Board of Education, theCity of New York, and two principals of the New School individually, for negligence, public andprivate nuisance, violation of OSHA regulations, and violations of the New York CityAdministrative Code and other statutes. On August 6, 2010, defendants moved for summaryjudgment dismissing the complaint. Defendants argued that Cleghorne did not develop asthma asa result of her exposure to toxins at the New School, but rather that she had an existing asthmaticcondition. In support of their motion, defendants provided the expert report of Dr. [*2]Jack J. Adler, a pulmonologist who had conducted an examinationof Cleghorne and reviewed her medical records. He noted that in 1994 Cleghorne experienceddifficulty breathing after a fan blew cold air on her in her classroom, and that since 1995, sheexperienced dyspnea, or shortness of breath, on exertion, a condition commonly associated withasthma.
Dr. Adler concluded that plaintiff had developed asthma prior to moving to the new schoollocation and that "environmental contaminants" at the school did not cause the condition. Dr.Adler explained that Cleghorne has "atopic or allergic asthma" and is "allergic to severalcommon allergens, including tree and ragweed pollen, dust mites, dogs, cats, cockroaches. . . mold spores . . . and mouse and rat antigens . . . noneof which are exclusive to the New School." Because these environmental contaminants "areextremely prevalent," she would likely have "similar symptoms in any other urban environment."Dr. Adler concluded that, while working at the New School, Cleghorne was simply experiencingasthmatic symptoms triggered by common allergens.
On October 4, 2010, plaintiffs cross-moved for summary judgment and sought denial ofdefendants' summary judgment motion. In support, plaintiffs submitted the affidavit of theirexpert, Dr. Hugh Cassiere, and an affidavit from Cleghorne that provided more detail concerningthe conditions in the school.
In the affidavit, Cleghorne stated that when the school moved to the new location, she spentseveral hours a day during the week before the school opened cleaning up dust, dirt, rodentdroppings and carcasses, cobwebs, dead insects, mildew and mold. Cleghorne further stated thatafter classes began, she cleaned her classroom twice daily. Cleghorne described her symptomsand medical treatment consistent with her section 50-h testimony.
Plaintiffs' expert, Dr. Cassiere, opined that Cleghorne did not have asthma prior to 2000, butrather suffered from a respiratory condition described as asymptomatic "airway hyperresponsiveness" (AHR). Crediting Cleghorne's account of her exposure at the school, Cassiereconcluded that Cleghorne's asthma was caused in 2000 by "high-level exposure to, and dailyinhalation of dust, dirt, rodents, rodent dander, mold, mildew, cockroaches, and bug carcasses."
In reply, defendants asked the motion court, inter alia, to exclude Cassiere's report on thebasis that his opinion on causation and the methodology used to form that opinion was notgenerally accepted in the medical community. Alternatively, defendants asked the court toconduct a Frye hearing.
In support, defendants submitted another affidavit from Dr. Adler, which asserted thatCassiere's theory of causation and his methodology were not generally accepted in the medicalcommunity because it made a "false distinction between AHR and asthma," and that it is notpossible to diagnose AHR without pulmonary testing. Defendants also asserted that Cleghornehad not shown what levels of allergens or toxins she was exposed to, much less that the allegedlevel of exposure was sufficient to cause asthma.
Plaintiffs, in reply submitted another affidavit from Cassiere wherein he listed studiespurporting to show that it is generally accepted that AHR and asthma are separate conditions, butthat AHR can develop into asthma under conditions such as those to which Cleghorne wasallegedly exposed at the school. The motion court denied both motions, finding that there weretriable issues as to causation and as to the safety of Cleghorne's work environment.
For the reasons set forth below, the motion court should have dismissed the complaint in itsentirety. Initially, we note that the complaint must be dismissed as against the City of New Yorkbecause the City is not a proper party to this action (see Flores v City of New York, 62[*3]AD3d 506 [1st Dept 2009]). Furthermore, the action cannotproceed against the individual defendants because they were not named in the notice of claim(see General Municipal Law § 50-e; Tannenbaum v City of New York, 30 AD3d 357, 358 [1st Dept2006]).
Plaintiff's claims against the remaining defendant, Board of Education of the City of NewYork, also fail. Even if this Court were to accept that plaintiff developed asthma only afterstarting work at the New School in 2000, and that AHR is a separate condition, plaintiff is stillobliged to show specific causation. Namely, plaintiff must at least raise a triable issue of fact asto her exposure to a specific toxin or allergen; quantify the level of exposure to some degree; andposit that such level of exposure was sufficient to produce the alleged injuries (Parker v Mobil Oil Corp., 7 NY3d434, 448-449 [2006]). While Parker recognizes that the level of exposure need notalways be quantified "precisely," it is still necessary that "whatever methods an expert uses toestablish causation [they be] generally accepted in the [medical] community" (id. at 448).Such methods include "mathematical modeling or comparing plaintiff's exposure level to thoseof study subjects whose exposure levels were precisely determined" (Todman v Yoshida, 63 AD3d 606,607 [1st Dept 2009]).
Here, the only "method" plaintiffs' expert used to establish specific causation was to accept,at face value, the anecdotal allegations of plaintiff's uncorroborated affidavit that she wasexposed to dust, bugs, rodent droppings and carcasses in unspecified quantities, and beganexperiencing asthma, purportedly for the first time, as a result.
Cleghorne stated in her affidavit—dated more than nine years after the relevantevents—that "[t]he premises . . . were replete with rodents, rodent carcasses,rodent droppings, cobwebs, cockroaches, cockroach and other bug carcasses, mildew, thick-blackdust, and excessive dirt." She also stated that "numerous ceiling tiles were water-damaged andbroken; there was mold on the ceiling tiles by the vents, mold on the walls, and mold in theclosets." Cleghorne further stated that once school began, "[e]very morning [she] cleanedcobwebs, bug carcasses, mildew, and mold in [her] classroom as well as wiped dust. . . and dirt from the vents along the windowsills [and that] [o]n almost a dailybasis, [she] wiped rodent droppings from along the vents of the classroom's windowsill."
Plaintiffs' expert, based only on this affidavit, characterized Cleghorne's exposure as"high-level." This was an insufficient basis for his theory, given that "replete" is a meaninglessand vague quantifying adjective (see e.g.Martins v Little 40 Worth Assoc., Inc., 72 AD3d 483 [1st Dept 2010] [expert'scalculation of the level of exposure was based on assumptions not supported by the record]).Plaintiffs' expert did not provide any scientific measurement or employ any accepted method ofextrapolating such a measurement, and plaintiffs offered no other evidence concerning the levelof allergens or toxins present in the school. Although plaintiffs' expert cited six studies in supportof his theory of causation, he failed to compare Cleghorne's exposure level to those of the studysubjects. Nor could he have since the studies listed common allergens, but did not differentiatebetween them or provide exposure levels.[FN*][*4]
Nor did plaintiffs' expert posit the level of exposurenecessary for the causation of injury. InFraser v 301-52 Townhouse Corp. (57 AD3d 416 [1st Dept 2008], appealdismissed 12 NY3d 847 [2009]), we granted defendant's motion for summary judgmentdismissing plaintiff's personal injury claims because, inter alia, plaintiff failed to present anyevidence supporting specific causation. We found that plaintiff failed to show that he wasexposed to a level of mold sufficient to cause his alleged injury. We further found that plaintiff'sexpert failed to specify the threshold level of exposure to dampness or mold that would cause theplaintiff's health problems (id. at 419). Here too, plaintiffs offer no quantificationwhatsoever of the level of Cleghorne's allergen exposure, nor does plaintiffs' expert specify whatlevel of any of the allergens would cause AHR to progress to chronic asthma (see e.g.Smolowitz v Sherwin-Williams Co., 2008 WL 4862981, 2008 US Dist LEXIS 91019 [EDNY, Nov. 10, 2008, No. 02-CV-5940] [complaint dismissed because plaintiff's expert failed toquantify the amount of the toxin to which plaintiff was allegedly exposed or that limitedexposure can cause the plaintiff's disease]).
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Tom, J.P., Friedman, Catterson, Acosta and Freedman, JJ.
Footnote *: One study referenced allergensincluding dust, house dust mite, animal danders, tree pollen, grass pollen and molds. Anotherreferenced dust, mold, furred animals, cockroaches and pollens. One study stated that"constrictor agonists" were administered to its subjects to study airway response, but did notspecify what they were. The last study examined the effects of exposure to quartz, asbestos, dust& fumes, but not allergens.