| Hellert v Town of Hamburg |
| 2008 NY Slip Op 03747 [50 AD3d 1481] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Donald D. Hellert et al., Individually and as Parents and NaturalGuardians of Benjamin P. Hellert, an Infant, et al., Respondents, v Town of Hamburg, Appellant.(Appeal No. 1.) |
—[*1] Richard J. Lippes & Associates, Buffalo (Richard J. Lippes of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Erin M. Peradotto, J.), enteredDecember 11, 2006 in a personal injury action. The order, insofar as appealed from, denied inpart the motion of defendant for summary judgment dismissing the amended complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is granted in its entirety and the amended complaint is dismissed.
Memorandum: Plaintiffs commenced this action alleging that defendant allowed toxic andhazardous substances to migrate from its property, where it formerly operated a landfill, toplaintiffs' property. According to plaintiffs, those substances caused health risks to plaintiffs andpersonal injuries to one of the children on whose behalf the action was commenced (hereafter,child), as well as property damage. Supreme Court granted defendant's motion for summaryjudgment dismissing the amended complaint only in part, and we agree with defendant that thecourt should have granted defendant's motion in its entirety.
In support of its motion, defendant established its entitlement to judgment as a matter oflaw with respect to the remaining causes of action, for trespass, private nuisance, negligence andnegligence per se (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). A common element alleged in each of those causes of action is that unsafe levels ofhazardous materials originating on defendant's property migrated to plaintiffs' properties,resulting in health or safety risks. Here, defendant established through the various environmentalreports submitted in [*2]support of the motion and through theaffidavit of its medical expert that, although contaminants were found on plaintiffs' properties,they did not result in health or safety risks and did not cause the migraine headaches of the child.We conclude that plaintiffs failed to raise a triable issue of fact sufficient to defeat theremainder of defendant's motion. Contrary to the contention of plaintiffs, the affidavit of theirhydrogeologist was insufficient to raise a triable issue of fact because they failed to establish thathe was qualified to render the opinions set forth in his affidavit, i.e., they failed to establish thathe was "possessed of the requisite skill, training, education, knowledge or experience from whichit can be assumed that the information imparted or the opinion rendered is reliable" (Matott vWard, 48 NY2d 455, 459 [1979]; see Moody v Sorokina, 40 AD3d 14, 20 [2007], appealdismissed 8 NY3d 978, reconsideration denied 9 NY3d 887 [2007]). He was notcertified as a hydrogeologist by any accepted accrediting organization and, indeed, he admitted inhis deposition testimony that he was "not qualified to indicate what's a health risk and what'snot."
Even assuming, arguendo, that plaintiffs' hydrogeologist is a qualified expert, we concludethat his affidavit and report is insufficient to raise a triable issue of fact on the further ground thathe does not expressly state therein that the detected levels of contaminants pose a health risk toplaintiffs. Although his affidavit and report state that the various contaminants are above "DECTAGM [Technical and Administrative Guidance Memorandum] guidelines," or that detectedmetals in the groundwater "exceeded drinking water standards" and in the soil "were aboveNYSDEC recommended soil cleanup limits," he does not relate the significance or relationshipof those standards to potential health risks. His failure to do so renders insufficient plaintiffs'opposition to the remainder of defendant's motion because "standards promulgated by regulatoryagencies as protective measures are inadequate to demonstrate legal causation" (Parker v Mobil Oil Corp., 7 NY3d434, 450 [2006], rearg denied 8 NY3d 828 [2007]). Additionally, it is immaterialthat certain metals detected in the groundwater samples taken from plaintiffs' properties exceededdrinking water standards because it was undisputed that none of the plaintiffs used groundwateror well water for drinking purposes or, indeed, for any other purpose.
We further conclude that plaintiffs failed to raise an issue of fact by submitting theaffidavit of plaintiff's medical expert, submitted in support of plaintiffs' contention that the child'smigraine headaches were caused by "exposures to various chemicals and heavy metals found onthe property and in the home of [the child's] parents." It is well established that "an opinion oncausation should set forth a [person's] exposure to a toxin, that the toxin is capable of causing theparticular illness (general causation) and that [the person] was exposed to sufficient levels of thetoxin to cause the illness (specific causation)" (id. at 448). Here, the affidavit of plaintiffs'expert fails to set forth the levels of the toxins detected on the property of the child's parents thatwere necessary either to cause migraine headaches or to constitute a health risk, nor does itestimate the child's exposure or plaintiffs' levels of exposure in general. In addition, the expert'saffidavit did not refer to any study establishing that the child was exposed to sufficient levels ofthe various contaminants to cause migraine-like headaches or that the level of exposure to suchcontaminants rendered plaintiffs' continued habitation on the properties a risk to plaintiffs' health.In sum, the conclusory assertion of plaintiffs' expert that an unquantified exposure to certaintoxins caused the child's migraine headaches is insufficient to raise a triable issue of fact withrespect to causation (see Nawrocki vCoastal Corp., 45 AD3d 1341 [2007]; Edelson v Placeway Constr. Corp., 33 AD3d 844, 845 [2006];see generally Parker, 7 NY3d at 448-449). Present—Hurlbutt, J.P., Lunn, Faheyand Pine, JJ.