| Cinquemani v Old Slip Assoc., LP |
| 2007 NY Slip Op 06943 [43 AD3d 1096] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Joseph Cinquemani et al., Appellants, v Old SlipAssociates, LP, et al., Respondents. |
—[*1] Segal McCambridge Singer & Mahoney, New York, N.Y. (Amy L. Fenno, Robert R.Rigolosi, Christian H. Gannon, and Dwight A. Kern of counsel), for respondents Old SlipAssociates, LP, and Paramount Group, Inc. Malaby, Carlisle & Bradley, LLC, New York, N.Y. (Maryellen Connor, Michael J. Curtis,and Stephanie Hershkovitz of counsel), for respondent Turner Construction. Hack, Piro, O'Day, Merklinger, Wallace & McKenna, New York, N.Y. (Rebecca K. Megnaand Jeffrey Berson of counsel), for respondent Lucent Technologies, Inc. Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B. Prystowsky and EllenSpindler of counsel), for respondent Belt Painting Corp.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedAugust 12, 2005, as granted that branch of the motion of the defendants Old Slip Associates, LP,and Paramount Group, Inc., and those branches of the separate motions of the defendants TurnerConstruction, Belt Painting Corp., and Lucent Technologies, Inc., respectively, which were forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one [*2]bill of costs payable by the respondents appearing separately andfiling separate briefs, and those branches of the motions which were for summary judgmentdismissing the complaint are denied.
While working in his office for a few hours on Saturday, April 26, 1997, the plaintiff JosephCinquemani (hereinafter the plaintiff) allegedly was exposed to an industrial solvent, methylethyl ketone (hereinafter MEK). The alleged source of the MEK was work being performed bycontractors on another floor of the building. The plaintiff claims that this one-time exposure toMEK caused immediate symptoms, including difficulty breathing, disorientation, and dizziness,as well as various long-term injuries, including pneumonitis, asthmatic reactions, pulmonaryinsufficiency, and chronic bronchitis.
Insofar as is relevant to this appeal, the defendant Turner Construction moved for summaryjudgment dismissing the complaint on the ground that the plaintiff's alleged injuries were not theresult of a chemical exposure. The remaining defendants separately moved for the same relief,relying on the same proof. Specifically, the defendants argued, in relevant part, that the plaintiff'sinjuries could not have been caused by any chemical exposure or, in the alternative, that the mostlikely cause of his injuries was something other than a chemical exposure. The Supreme Courtgranted the motions. This appeal ensued.
The defendants failed to meet their initial burden of establishing their prima facie entitlementto summary judgment on the issue of causation by demonstrating, through "expert evidencebased on a scientifically-reliable methodology" (Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 374[2006]), that there was no causal link between the plaintiff's alleged injuries and his one-timeexposure to MEK (see Heckstall vPincus, 19 AD3d 203, 204-205 [2005]). In support of their motions, the defendantstendered, inter alia, the affidavit of David H. Garabrant, M.D., who opined that "there is nocausal relationship between [the plaintiff's] alleged April 26, 1997, exposure to paint and solventvapors and his claimed injuries." Dr. Garabrant averred that his opinion was based on "medicaland scientific articles that . . . are generally recognized as being reliable andauthoritative in the relevant medical and scientific communities," but he did not disclose oridentify those articles. Contrary to the defendants' contention, such an opinion is whollyunsupported and conclusory, and is insufficient to establish, prima facie, that the plaintiff'sinjuries could not have been caused by his alleged exposure to MEK (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "[B]are conclusory assertions," such asthose contained in Dr. Garabrant's affidavit, are insufficient to demonstrate the absence of anymaterial issues of fact (id.).
Another expert, Dr. Jerome M. Block, opined, after examining the plaintiff and reviewing hismedical records, that he had "no documented neurological disturbance [sic]" and "does not haveany problem involving his central, peripheral, or autonomic nervous system or any cognitivedeficits." Based on this opinion, Dr. Block concluded that "there is no causal relationshipbetween [the plaintiff's] alleged April 26, 1997, exposure to paint and solvent vapors and hisclaimed neurological or cognitive injuries." In light of the fact that the plaintiff principally claimspulmonary—not neurological—injuries, Dr. Block's affidavit is irrelevant, andtherefore insufficient to establish a prima facie lack of causation.
Thus, to the extent the motions sought dismissal of the complaint on the ground that theplaintiff's injuries could not have been caused by exposure to MEK, they should have beendenied "regardless of the sufficiency of the opposing papers" (see Ayotte v Gervasio, 81NY2d 1062, 1063 [1993] [internal quotation marks omitted]).[*3]
Alternatively, the defendants argued that the most likelycause of the plaintiff's injury was something other than chemical inhalation. In support of thisargument, they offered the affidavit of Dr. Benjamin H. Safirstein, who opined, based on hisexamination of the plaintiff and a review of his medical records, that many of the plaintiff'sinjuries were likely caused by sleep apnea and/or an upper respiratory infection, and that theplaintiff's symptoms two days after the alleged exposure did not "follow the pattern usually seenin individuals who have suffered injurious exposures to chemicals." Although Dr. Safirstein'saffidavit was sufficient, prima facie, to establish that the plaintiff's injuries were in fact caused bysomething other than chemical inhalation, the plaintiff, in opposition, raised a triable issue offact. Specifically, the plaintiff tendered the affidavit of his treating physician, Dr. Jamie Lara,who opined, based on his treatment of the plaintiff over the course of many years, that hisrespiratory problems, including injuries to his lungs and pulmonary insufficiency, were the resultof chemical inhalation. Absent any competent evidence from the defendants establishing, primafacie, that the plaintiff's injuries could not have been caused by exposure to MEK, there is noscientific basis in the record to prefer Dr. Safirstein's diagnosis to Dr. Lara's, or to reject Dr.Lara's affidavit as merely speculative.
Accordingly, we reverse the order insofar as appealed from and deny those branches of themotions which were for summary judgment dismissing the complaint. Rivera, J.P., Ritter, Florioand Fisher, JJ., concur.