| Lindkvist v Travelers Ins. |
| 2013 NY Slip Op 07426 [111 AD3d 452] |
| November 12, 2013 |
| Appellate Division, First Department |
| Mark Lindkvist, Respondent, v TravelersInsurance, Defendant, and Maxons Restorations, Inc., et al., Appellants. MaxonsRestorations, Inc., Third-Party Plaintiff-Appellant, v JLC Environmental Consultants,Inc., Third-Party Defendant-Appellant/Second Third-Party Defendant-Appellant. NewConcept Environmental Cleaning Corp., Second Third-Party Plaintiff-Appellant. |
—[*1] Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for NewConcept Environmental Cleaning Corp., appellant. Goldberg Segalla LLP, Garden City (Brendan T. Fitzpatrick of counsel), for JLCEnvironmental Consultants, Inc., appellant. Lewis & Fiore, New York (Charles G. Fiore of counsel), for respondent.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered February 15,2013, which denied JLC Environmental Consultants, Inc.'s motion and MaxonsRestorations, Inc.'s and New Concept Environmental Cleaning Corp.'s cross motions inlimine for the preclusion of [*2]plaintiff's experts'testimony, unanimously modified, on the law, to preclude plaintiff's experts fromtestifying as to a causal connection between plaintiff's alleged mold exposure and hisinjuries, and, upon such preclusion, plaintiff's personal injury claim dismissed, andotherwise affirmed, without costs.
In this action, plaintiff seeks, inter alia, recovery for personal injuries and propertydamage sustained as a result of mold remediation work performed by MaxonsRestorations, Inc., New Concept Environmental Cleaning Corp. and JLC EnvironmentalConsultants, Inc. to address a condition that existed in his apartment after it was flooded.
The proposed expert testimony purporting to establish that a mold condition existingin plaintiff's apartment caused his injuries is inadmissible as it fails to set forth "plaintiff'sexposure to a toxin, that the toxin is capable of causing the particular illness (generalcausation) and that plaintiff was exposed to sufficient levels of the toxin to cause theillness (specific causation)" (Parker v Mobil Oil Corp., 7 NY3d 434, 448 [2006]).Plaintiff's experts do not identify the specific mold alleged to be the cause of plaintiff'sinjuries, set forth that the specific mold is capable of causing the claimed injuries, orquantify the level of exposure needed to cause the illness at issue, a worsening ofplaintiff's respiratory and dermatologic conditions (see id.; Cleghorne v City of NewYork, 99 AD3d 443, 446 [1st Dept 2012]; Fraser v 301-52 Townhouse Corp., 57 AD3d 416, 419-420[1st Dept 2008], appeal dismissed 12 NY3d 847 [2009]). Indeed, plaintiff's moldexpert conceded that he was not qualified to render an opinion as to "any significance ofelevated mold spore exposure" and failed to address the other possible sources of mold inthe apartment. Plaintiff's medical experts, inter alia, take plaintiff's claim that hissymptoms worsened due to mold exposure at face value, without reference to plaintiff'sextensive preexisting medical conditions, and assume the existence of a mold conditioncapable of causing the claimed injuries (see Rivera v Crotona Park E. Bristow Elsmere, 107 AD3d550 [1st Dept 2013]; cf.Cornell v 360 W. 51st St. Realty, LLC, 95 AD3d 50, 58 [1st Dept 2012]).
In the absence of the precluded expert testimony, plaintiff cannot establish a claimfor personal injuries. Concur—Andrias, J.P., Acosta, Saxe, Renwick andManzanet-Daniels, JJ.