| Rivera v Crotona Park E. Bristow Elsmere |
| 2013 NY Slip Op 04690 [107 AD3d 550] |
| June 20, 2013 |
| Appellate Division, First Department |
| Wany'a Rivera, an Infant, by His Mother and NaturalGuardian, Ventese Hewitt, et al., Respondents, v Crotona Park East BristowElsmere, Appellant. |
—[*1] Meagher & Meagher, P.C., White Plains (Christopher B. Meagher of counsel), forrespondents.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered April 13, 2012,which, to the extent appealed from as limited by the briefs, denied defendant's motion forsummary judgment dismissing the complaint, unanimously reversed, on the law, withoutcosts, and the motion granted. The Clerk is directed to enter judgment dismissing thecomplaint.
Contrary to plaintiffs' contention, defendant's motion for summary judgment was notuntimely, since the case was marked off the calendar by so-ordered stipulation to allowfor the completion of discovery and had not yet been restored when defendant's motionwas filed (Pena v Women'sOutreach Network, Inc., 35 AD3d 104, 109 [1st Dept 2006]).
On the merits, defendant made a prima facie showing that the mold condition inplaintiffs' apartment did not cause the infant plaintiff's claimed injuries. It submittedexpert evidence establishing that the infant plaintiff's asthma and pulmonary incapacitywere caused by genetic and environmental factors not related to the mold condition,including medical records showing the infant plaintiff's significant allergies tocockroaches and cats, the extensive family history of severe asthma, and the presence ofcigarette smoke, cockroaches and cats in the apartment.
In opposition, plaintiffs failed to raise a triable issue of fact as to causation (see Parker v Mobil Oil Corp.,7 NY3d 434, 449 [2006]). They relied solely on an affirmation by the infantplaintiff's former treating physician, who failed to refute defendant's experts' conclusionsthat the infant plaintiff's asthma and pulmonary incapacity were caused by genetic andenvironmental factors other than mold (see Lall v Ali, 101 AD3d 439 [1st Dept 2012]). Moreover,the medical records indicate that the treating physician had himself directly attributed theinfant plaintiff's symptoms to his exposure to smoke, cockroaches and cats.
Furthermore, the physician expressly stated that plaintiffs' apartment was where the"presumed toxic exposure occurred." The only source of his assumptions as to exposurethat is identified in his affirmation is plaintiffs' uncorroborated, anecdotal allegations (see Cleghorne v City of NewYork, 99 AD3d 443, 446-447 [1st Dept 2012]). The physician did not provideany scientific measurement, or employ any accepted method of extrapolating such ameasurement, to [*2]establish the infant plaintiff'songoing exposure to a specific toxin or allergen, and plaintiffs submitted no otherevidence concerning the level of allergens or toxins present in the apartment (seeid.; Fraser v 301-52Townhouse Corp., 57 AD3d 416 [1st Dept 2008], appeal dismissed 12NY3d 847 [2009]). The physician also did not posit the level of exposure necessary forthe causation of the injury (see Fraser, 57 AD3d at 420).
The medical records submitted with the physician's affirmation are uncertified andunaffirmed (see Lazu v HarlemGroup, Inc., 89 AD3d 435, 435-436 [1st Dept 2011]), and in any event, like thephysician's affirmation, they rely on plaintiffs' uncorroborated allegations as to thepresence of mold in the apartment (see Cleghorne, 99 AD3d at 446-447).
We note that plaintiffs submitted no evidence establishing the presence of toxic moldin the apartment from October 1997 to September 2003 or at any time after December20, 2005. Nor did they demonstrate that defendant had actual or constructive notice of apotentially harmful mold condition during those time periods (see Beck v J.J.A. HoldingCorp., 12 AD3d 238, 240 [1st Dept 2004], lv denied 4 NY3d 705[2005]).
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Tom, J.P., Acosta, Saxe and Freedman, JJ.