| Cabral v 570 W. Realty, LLC |
| 2010 NY Slip Op 03859 [73 AD3d 674] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Griselda Cabral et al., Respondents, v 570 West Realty,LLC, Appellant. |
—[*1] Krieger, Wilansky & Hupart, Bronx, N.Y. (Brett R. Hupart of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, etc., the defendant appealsfrom an order of the Supreme Court, Kings County (Martin, J.), dated July 1, 2009, which deniedits motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiffs, a mother and her three children, alleged that the infant plaintiffs' exposure to asevere mold condition in the family's apartment caused the infant plaintiffs to develop asthma.The plaintiffs were tenants in the apartment located in a building owned by the defendant. Thedefendant moved for summary judgment dismissing the complaint, arguing that mold was not thecause of the infant plaintiffs' asthma and that it was not negligent as it properly abated the moldcondition after receiving notice of its existence. The Supreme Court denied the motion. Weaffirm.
The defendant failed to meet its initial burden of establishing its prima facie entitlement tojudgment as a matter of law on the issue of causation. The defendant submitted the expertaffirmations of a physician who opined that mold was not the cause of the infant plaintiffs'asthma. An expert opinion on causation should set forth a plaintiff's exposure to a toxin, whetherthe toxin is capable of causing the particular illness (general causation), and whether the plaintiffwas exposed to sufficient levels of the toxin to cause the illness (specific causation) (see Parker v Mobil Oil Corp., 7 NY3d434, 448 [2006]). The defendant, as the proponent of a summary judgment motion, wasrequired to demonstrate, through " 'expert evidence based on a scientifically-reliablemethodology' (Zaslowsky v J.M.Dennis Constr. Co. Corp., 26 AD3d 372, 374 [2006]), that there was no causal linkbetween the [infant plaintiffs'] alleged injuries" and their exposure to mold (Cinquemani v Old Slip Assoc., LP, 43AD3d 1096, 1097 [2007]). The affirmations of the defendant's expert fell far short of thisstandard.
The expert did not opine that mold is incapable of causing asthma (general causation) andhis affirmations do not address whether the scientific community generally accepts or rejects thetheory that mold can cause asthma (cf.Parker v Mobil Oil Corp., 7 NY3d 434 [2006]; Fraser v 301-52 [*2]Townhouse Corp.,57 AD3d 416 [2008]). Since this expert wholly failed to address the issue of generalcausation, the defendant failed to meet its prima facie burden on that element (see Parker vMobil Oil Corp., 7 NY3d at 448).
The expert affirmations proffered by the defendant also were insufficient to demonstrate alack of specific causation (i.e., that the infant plaintiffs were exposed to insufficient levels ofmold to cause their asthma, or that their asthma was caused by some other factor). The expert'sopinion on this issue is wholly conclusory and unsupported. After physically examining theinfant plaintiffs and reviewing their medical records, the expert merely stated that there was noevidence "anywhere in the records or history that exposure to mold, fungi or any otherenvironmental factor is a causative or aggravating factor" of the infant plaintiffs' asthma. Nofurther explanation was provided. Such "bare conclusory assertions" were insufficient todemonstrate the absence of any triable issues of fact (Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
The defendant's expert's affirmations also did not indicate whether the expert had anyknowledge of the conditions of the apartment and continuing presence of mold from 1993 until,at least, 1998. Moreover, in implying that the infant plaintiffs' asthma was inherited, thedefendant's expert relied on one hospital record. However, the expert did not set forth thelikelihood that the infant plaintiffs' asthma was inherited, rather than caused by exposure tomold. In fact, in the deposition testimony of the plaintiff mother (hereinafter the mother), whichthe defendant submitted in support of its motion, the mother testified that she was not diagnosedwith asthma until 2002 or 2003, many years after she moved into the apartment and was exposedto the same allegedly moldy conditions as the infant plaintiffs. The mother also testified thatneither she nor her husband had a family history of asthma. Under these circumstances, thedefendant failed to show the absence of triable issues of fact as to specific causation.
The defendant also failed to establish, prima facie, that it was not negligent because itproperly abated the moldy condition of the apartment after being notified of it. To meet itsburden, it was incumbent upon the defendant to demonstrate that it neither created the conditionnor had actual or constructive notice of its existence (see Travers v Charles H. Greenthal Mgt. Corp., 66 AD3d 768[2009]). At her deposition, the mother testified that she notified the defendant of the moldycondition in the apartment as early as 1993, but the condition persisted for at least another fiveyears. The mother testified that she notified the defendant of the condition many times, but thecondition was not fully abated. Accordingly, the defendant failed to demonstrate the absence ofany triable issues of fact on the question of its negligence (see Winegrad v New York Univ.Med. Ctr., 64 NY2d at 853; cf.Travers v Charles H. Greenthal Mgt. Corp., 66 AD3d 768 [2009]).
Since the defendant failed to meet its prima facie burden, its motion for summary judgmentwas properly denied, regardless of the sufficiency of the opposing papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Mastro, J.P., Dickerson, Belen and Chambers,JJ., concur.