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MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new” symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010 were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would be improper to dismiss the claim.  Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

NEGLIGENCE (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/TOXIC TORTS (MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)/MOLD (TOXIC TORTS, MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT)

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Spoliation, Discovery Abuse Sanctions, Equitable Estoppel.
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DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK.
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THE PLEA ALLOCUTION DID NOT DEMONSTRATE DEFENDANT MADE AN INFORMED DECISION TO WAIVE A VIABLE INSANITY DEFENSE; THE FIRST DEPARTMENT VACATED THE PLEA AND DISMISSED THE INDICTMENT; DEFENDANT WAS RETURNED TO AN ASSISTED LIVING FACILITY UNDER A CIVIL GUARDIANSHIP ORDER (FIRST DEPT).
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MOTHER’S ATTORNEY APPEARED AND PARTICIPATED IN THE PROCEEDINGS, EXPLAINING... MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED AT...