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The Rogak Report: 06 Dec 2004 ** Notice Issues - Mold **

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  • Lawrence Rogak
    Message 1 of 1 , Dec 6, 2004

      Litwack v. Plaza Realty Investors Inc., NYLJ 12/04/04 (Supreme Court,
      New York County) (Shafer, j)

      In this suit between a tenant and her former landlord, the tenant
      claimed that her apartment was permeated with toxic mold from
      previous water leaks, and that this exposure was the cause of her
      injuries, which included asthma, allergies, chronic rhino sinusitis,
      hypersensitivity pneumonitis, and cognitive disorders.

      Defendants moved to dismiss the complaint on the grounds that: (1)
      defendants did not have actual or constructive notice of the
      condition which allegedly caused plaintiff's injuries; (2) plaintiff
      cannot establish a causal connection between her alleged exposure to
      mold in her apartment and her injuries; (3) the claim for breach of
      the warranty of habitability is meritless; and (4) plaintiff has
      failed to submit documents to support her personal property damage
      claim, despite a court order.

      Plaintiff testified at her deposition that the Premises had an air
      conditioning and heating unit combined in the living room, the
      bedroom, and the dining room, and that, in the summer, these units
      would drip constantly unless they were turned off. She complained to
      defendants, but was told to turn the units off, and not to worry
      about it. Plaintiff claims that in April 1999, she noticed a brown
      discoloration spot on the wall in her dining room, which was wet if
      touched. She asserted that she notified defendants, and a handyman
      was sent up to look at it. The handyman took out a five-to six-inch
      section of the wall. Plaintiff asserts that she saw a steampipe
      behind the opening, and that, while she did not see any water
      dripping, there was water around the opening of the hole. She stated
      that the handyman said it couldn't be fixed until the building heat
      went back on in the fall. The spot on the wall got worse, and she
      complained several times over the summer. Finally, in the fall,
      defendants hired an outside plumber to replace a copper pipe and
      fitting, then repaired the wall.

      Plaintiff claimed that, in the fall of 1999, she started to feel
      sick, including shortness of breath, chronic diarrhea, her organs
      hurt, constant pain and pressure between her shoulder blades, rashes
      on her face and chest, night sweats, flu-like symptoms, sleepiness,
      inability to eat, memory problems, and difficulties concentrating.
      She attested that these symptoms were continuous, and only subsided
      when she left the Premises for a period of time, and finally when she
      moved out in 2001.

      In October 1999, she began going to her family doctor for those
      symptoms. She then began seeing a number of other specialists,
      including a pulmonologist, endocrinologists, internists, and
      infectious disease specialists, and underwent many tests. In July of
      2001, she went to the Mayo clinic in Arizona for more tests. She saw
      an endocrinologist, an internist, an infectious disease doctor, a
      neurologist, a rheumatologist, an allergist, and a rehabilitation
      doctor. She states that she received no diagnosis, but was advised
      that if, upon her return to her apartment, she became ill again, she
      should have the apartment environmentally tested. When she returned
      home she got sick immediately. She hired an environmental specialist
      to come and take samples from all over the Premises. Plaintiff
      attests that these test results showed that molds including
      Aspergillus Penicillium, Stachybotrys, and other molds were present
      in the Premises.

      On January 10, 2002, plaintiff hired Olmstead Environmental Services
      to conduct a thorough evaluation of the Premises. Olmstead stated
      that the Premises showed microbial contamination from Chaetomium,
      Stachybotrys Chartarum, Penicillium, Endotoxin, Cladosporium, and
      Aspergillus and Niger. He indicated that the tests showed
      Cladosporium and Penicillium in the area where the leak was, in
      amounts significantly above the outdoor level. He further stated that
      Stachybotrys Chartarum was found in the public hallway, as well as in
      the dining room, living room, and the inside hallway, and not
      outdoors on the terrace. Mr. Olmstead concluded that the failure to
      repair the water leak in the dining room, and other recurrent water
      leaks, and the failure to timely and properly remediate the water-
      damaged building materials, resulted in the release of mold fragments
      throughout the Premises, and in significant and excessive microbial
      contamination of the building with atypical molds which are known to
      cause adverse health effects.

      Plaintiff admitted that she did not discuss with defendants her
      concerns that there might be an environmental problem with the
      Premises, either before or after she retained her expert. Plaintiff
      moved out of the Premises in July 2001, but did not advise defendants
      and formally surrender the apartment until February 2002.

      In the course of discovery, plaintiff produced a report from her
      doctor, Dr. Johanning. In this report, Dr. Johanning indicated that
      he took a comprehensive medical, occupational, and environmental
      health history of plaintiff. Dr. Johanning stated that plaintiff's
      symptoms, physical signs, and test results are consistent with
      exposure to allergenic and toxic fungi. He asserted that his
      diagnosis for plaintiff was fungal allergy, reactive airway disease
      (asthma), and fungal syndrome. He found that, while she has a medical
      history of Graves disease -- a thyroid condition -- that condition is
      unrelated to the current complaints and to her environmental
      exposure. He concluded that "[w]ith a reasonable degree of medical
      certainty, I believe that the current upper and lower airway
      inflammatory conditions and the constitutional problems of
      [plaintiff] have been caused and are aggravated by the indoor mold
      contamination resulting from the water damage inside her apartment."
      He also concluded that plaintiff's condition is permanent.

      Plaintiff also produced a report from Dr. Wayne A. Gordon, a
      neuropsychologist, who concluded that plaintiff is experiencing
      cognitive difficulties which are most likely a result of her exposure
      to fungi and molds. He stated that her concentration and memory
      deficits are substantial, as is her ability to consistently regulate
      and organize herself.

      In moving for summary judgment, defendants first contended that they
      did not have actual or constructive notice of the alleged toxic mold
      condition, and, therefore, cannot be held liable. They submitted the
      deposition and the affidavit of the building superintendent who
      attested that no tenant, including plaintiff, ever complained of mold
      in the building at any time prior to plaintiff surrendering
      possession of her apartment. They pointed to plaintiff's admission
      that she did not discuss with defendants her concern that there might
      be an environmental problem with the Premises.

      Defendants also pointed out that the test results supplied by
      plaintiff's counsel did not even indicate indoor mold
      concentrations "above background levels," and that there was no
      evidence of mold in the indoor ambient air. They contended that
      plaintiff did not observe visible mold inside her apartment, or the
      building, prior to the time that she vacated it, and that she did not
      observe wet carpets. They urge that the infrequent visits by
      defendants' handyman to perform small repairs, in the absence of any
      testimony that defendants had any notice of any hazardous condition
      in the apartment prior to plaintiff's alleged exposure, does not
      satisfy the notice requirement. Defendants submit the affidavit of
      the handyman, who attested that he never observed any standing water
      or mold in the Premises, and that the sheetrock where the water spot
      was on the dining room wall was not damp or crumbly. Finally, they
      submitted the affidavit of the plumber who did the actual repair on
      the steampipe, and he attested that there was no visible mold growth.

      Defendants further urge that plaintiff fails to establish a causal
      connection between her alleged injuries and exposure to mold or
      mycotoxins. Defendants submitted the affidavit of Dr. Ronald E. Gots,
      a physician and toxicologist, as an expert in environmental and
      occupational toxicology. Dr. Gots opined that it is not generally
      accepted by the medical and scientific communities that mold or their
      mycotoxins found in homes cause the claimed disorders. Dr. Gots
      stated that the presence of any type of mold in a home does not
      establish that an exposure to mycotoxins at a dose considered to be
      sufficient for an adverse reaction has occurred. There was no
      evidence, according to him, that plaintiff was exposed to mold at
      levels above normal, or that mycotoxins were present in the indoor
      ambient air. He stated that there is insufficient exposure evidence,
      because air sampling is not useful for this, and that the sampling by
      plaintiff's consultants were taken from areas, such as inside the
      walls, which were not accessible to plaintiff.

      Dr. Gots further attested that the "medical and scientific
      communities recognize that the mere presence of Stachybotrys, or any
      other mold, in samples of bulk material or surface wipes does not
      mean that mycotoxins were present in ambient air." He supported this
      with reference to several published articles.

      On the issue of mold exposure and the resulting effects, Dr. Gots
      states that there are three categories of effects identified
      regularly in medical and scientific literature: allergic, infectious,
      and potential toxicogenic. The allergic effects include respiratory
      allergies, asthma, and, on rare occasions, hypersensitivity
      pneumonitis. Plaintiff, he pointed out, underwent mold allergy
      testing at the Mayo clinic in July 2001, which testing was negative.
      The infectious effects from mold exposure are primarily seen in
      immunocompromised individuals. He stated that plaintiff's medical
      records do not reveal any true immunodeficiency. As to the
      toxigenicity effect, Dr. Gots stated that, while some molds produce
      mycotoxins, there is no evidence in the medical and scientific
      literature that adverse health effects are associated with chronic,
      low-dose inhalation exposure to mycotoxins. He recognized that
      certain symptoms have been associated with mold exposure, including
      headaches, breathing difficulties, allergic reactions, and
      aggravation of asthma symptoms, as well as irritant effects, such as
      burning sensations in the eyes, skin, nose, and throat, which are

      In opposition to defendants' motion, on the issue of notice,
      plaintiff attested to a history of leaks in the Premises, including
      the leak in the dining room, as well as leaks from the air
      conditioning units. She particularly pointed to the dining room leak,
      which defendants examined, and not only failed to fix for six months,
      but left an opening in the wall where the leak was, which gave rise
      to her mold exposure. She also submitted a 1995 letter from her
      stepfather, who lived in the Premises for many years with her mother,
      to defendants, complaining of leaks and problems with the bathrooms
      that, in his words, had been going on for a long time. Thus, she
      asserted that defendants were on notice of a defective, watery
      condition, giving rise to her mold exposure.

      The Court defendants' motion only to the extent of dismissing the
      third cause of action for breach of the warranty of habitability, and
      was "otherwise denied."

      As for dismissing the negligence claim based on a lack of notice,
      that Motion was denied. "While defendants make a showing that they
      did not have actual notice of a hazardous mold condition in the
      Premises, they have framed the notice issue too narrowly. In many
      situations, as in the instant case, mold may be undetectable to the
      senses. The toxic mold to which plaintiff is referring is not the
      kind found between the bathroom tiles that maybe be observable to the
      eye. Rather, it is more insidious, and can be found as a dust on
      walls or surfaces or, most importantly, airborne and not readily
      apparent. Therefore, a landlord would not actually know of its
      presence without testing. As a result, a landlord may deliberately
      refrain from checking or testing after water damage, and shield
      itself from liability. To avoid a rule that would make the situation
      impossible for a plaintiff to hold a landlord reasonably accountable,
      the notice issue here is framed in terms of whether defendants had
      actual or constructive notice of a condition on the Premises, i.e.,
      persistent water leaks, which resulted in a hazardous mold condition.
      Framed as such, plaintiff has presented proof of a triable issue."

      Plaintiff's proof consists of "deposition testimony of persistent
      water leaks from the air conditioning units, which leaks were
      reported to defendants, but which they did nothing about. She also
      presents proof of the dining room leak, of which defendants
      admittedly were aware, and which resulted in the wet wall area being
      left exposed for six months. This clearly raises as issue as to
      whether defendants had actual, or at the least constructive notice,
      of a hazardous condition on their Premises. The testimony from the
      plumber that he did not see any mold only emphasizes that this
      condition, created by leaks and the resulting dampness, may not be
      readily observable to the eye. The proof from plaintiff's experts...
      is some proof that the wet and damp conditions from these leaks
      created the mold condition in the Premises which caused plaintiff's

      Comment: Here the Court stretches the doctrine of "constructive
      notice" like a fitted sheet to encompass claims which, in the Court's
      own words, are invisible to the naked eye. The whole basis of the
      constructive notice doctrine is that the party in control of the
      property is responsible for what he **should have found upon
      reasonable inspection**. Which begs this question: can you find
      invisible mold upon reasonable inspection? As this case shows, you
      need a scientific laboratory to detect mold and identify its specific
      phylum. Under this Court's reasoning, every time you see a drop of
      water in a house or apartment, you have a duty to bring a testing lab
      into the place to conduct epidemilogical studies.

      This is not like the rule which states that peeling paint in an old
      building can trigger a duty to test for lead. Very old paint usually
      DID contain lead. But not every drop of water leads to a bloom of
      mold, and requiring landlords to follow up every water leak with
      scientific testing is, in my humble opinion, too great a burden.
      Especially since the link between mold and human illness is still
      quite controversial.

      Larry Rogak
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