You are here: / Tenant Unable to Raise Question of Fact About Whether Dampness and Mold...

Search Results

/ ,

Tenant Unable to Raise Question of Fact About Whether Dampness and Mold Caused Her Physical Ailments/The Proof of General and Specific Causation Fell Short of Meeting the Frye Criteria for Scientific Tests Deemed “Generally Acceptable as Reliable” in the Scientific Community

In a full-fledged opinion by Judge Read, the Court of Appeals determined plaintiff was unable to raise a triable issue of fact about whether her physical injuries were caused by indoor exposure to dampness and mold.  The court did an extensive analysis of the expert evidence and determined, with respect to the Frye [293 F 1013] criteria, although “links” between plaintiff’s injuries and dampness and mold had been established,  the cause and effect relationship required under the Frye criteria had not been established:

In Frye v United States (293 F 1013, 1014 [DC Cir 1923]), the court rejected the testimony of a defense expert regarding the results of a “systolic blood pressure deception test” — an early type of polygraph test — because it had not yet “gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” While the Frye test turns on acceptance by the relevant scientific community, we have never insisted that the particular procedure be “‘unanimously indorsed'” by scientists rather than “‘generally acceptable as reliable'” … . * * *

Thus, studies that show an association between a damp and moldy indoor environment and the medical conditions that [plaintiff’s expert]  attributes to [plaintiff’s] exposure to mold (bronchialasthma, rhino-sinusitis, hypersensitivity reactions and irritation reactions of the skin and mucous membranes) do not establish that the relevant scientific community generally accepts that molds cause these adverse health effects. But such studies necessarily furnish “some support” for causation since there can be no causation without an association (although, as explained, there can be an association without causation). For these reasons, the Appellate Division was incorrect when it ruled that the Frye standard was satisfied in this case because [plaintiff’s expert’s] opinions as to general causation find “some support” in the record. In sum, then, [plaintiff] has not raised a triable issue of fact with respect to general causation.

Additionally, even assuming that [plaintiff] demonstrated general causation, she did not show the necessary specific causation. Cornell v 360 West 51st Street Realty, LLC, 16, CtApp 3-27-14

 

/ , ,

Cannot Sue Vehicle Owner as Vicariously Liable Under Vehicle and Traffic Law 388 Where Driver is Immunized from Suit Under Workers’ Compensation Law 29 (6)

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that “a defendant may [not] pursue a third-party contribution claim under New York Vehicle and Traffic Law [section] 388 against the owner of a vehicle, where the vehicle driver's negligence was a substantial factor in causing the plaintiff's injuries, but the driver is protected from suit by the exclusive remedy provision of New York Workers' Compensation Law [section] 29 (6)…”.  Here the driver, who was determined to be negligent (90%), was using her husband's car to drive a co-worker to a business meeting. The co-worker was injured and his exclusive remedy against the driver was under the Workers' Compensation Law.  The co-worker sued the driver of the other car, who was also determined to be negligent (10%).  The owner of that car (the driver's husband) then sued the owner of the car in which the co-worker was riding (the employee-driver's husband) under Vehicle and Traffic Law section 388 for contribution and indemnification:

In sum, we hold that a defendant may not pursue a third-party contribution claim under Vehicle and Traffic Law § 388 against a vehicle owner where the driver's negligence was a cause of the plaintiff's injuries, but the driver is insulated from a lawsuit under Workers' Compensation Law § 29 (6).  Isabella…Hallock… v Koubek, 45, CtApp 3-27-14

 

/ ,

A Gallery, as Agent for an Artist, Was Obligated to Disclose All Material Facts Within the Scope of the Agency/The Failure to Disclose the Gallery’s Intention to Treat Prints Made from the Artist’s Originals as Belonging to the Gallery Precluded Any Claim of Ownership by the Gallery

In a full-fledged opinion by Justice Friedman, the First Department determined the terms of the contract between a gallery and an artist (Scher) designated the gallery as the artist’s agent with respect to prints created from the artist’s original works. Therefore, the artist was the owner of the prints.  In addition, the court determined, under the General Obligations Law, the terms of a written contract were not changed by an alleged oral agreement:

…[S]ection 1 of the 2005 agreement (“Scope of Agency”) expressly provides that Scher was appointing the Gallery “to act as [her] exclusive agent . . . for the exhibition and sales of . . . limited edition prints published exclusively by [the] [G]allery,” among other kinds of artwork, for the duration of the agreement. Thus, when the Gallery commissioned the printer to produce the prints, paid the printer for the prints, and took delivery of the prints, it did so as Scher’s agent and, hence, fiduciary … . Accordingly, the prints must be deemed to be Scher’s property… . …

As Scher’s fiduciary, the Gallery was obligated to disclose to her in plain terms all material facts within the scope of the agency, obviously including any understanding the Gallery had, upon entering with Scher into the oral print deal, that it would own the prints and any intention it entertained to treat the prints as its own property … . If the Gallery did not wish to finance the production of prints that it would not own, it could have sought to reach an agreement with Scher specifying that prints made at the Gallery’s expense would be the Gallery’s property. Alternatively, if the Gallery merely wished to protect itself from being abruptly terminated as Scher’s agent before it had a fair chance to sell the prints, it could have sought to reach an agreement with her on a minimum time-period it would have to sell each batch of prints during which the agency could not be terminated without cause. Instead, the Gallery left itself exposed by going forward with the print deal based on only a vague, unwritten agreement that left nearly all of the terms up in the air except for the basic 90/10 split of sales revenue (and even as to that, there is a dispute as to whether Scher’s cut is calculated based on gross or net sales). We see no reason to relieve a fiduciary, such as this professional art merchant, of the consequences of its own carelessness in dealing with its principal.  Scher v Stendhal Gallery Inc, 2014 NY Slip Op 02154, 1st Dept 3-27-14

 

/

Plaintiff’s Lost Profits Deemed “General Damages,” Not “Consequential Damages,” Re: a Distribution Contract in which Plaintiff Agreed to Resell Defendant’s Product

In a full-fledged opinion by Judge Rivera, over a dissent, the Court of Appeals determined that, under the facts, lost profits were “general,” not “consequential” damages.  The distribution contract was for “CoStar stents” (manufactured by defendant) used in medical procedures. The contract called for plaintiff to resell defendant's stents. The resale price was the benchmark for the price of the transfer of the stents to plaintiff for resale. The distribution contract had precluded recovery for consequential damages. Plaintiff sought its lost profits as general damages:

The agreement was not a simple resale contract, whereone party buys a product at a set price to sell at whatever the market may bear. Rather, the price plaintiff paid defendant reflected the actual sales, and sales price, of CoStar stents. The agreement required plaintiff to pay defendant a transfer price calculated as a percentage of plaintiff's net sales of Costar: 61% for direct sales and 75% for indirect sales. Each quarter, the parties would calculate a minimum price based on net sales during the preceding quarter. Plaintiff remained obligated to pay defendant the full transfer price for its sales, even when the actual sales price exceeded the minimum price. Thus, the contract would only operate if plaintiff sold stents, and the payment defendant received bore a direct relationship to the market price plaintiff could obtain.  Indirect sales were sales made by affiliates. * * *

General damages “are the natural and probable consequence of the breach” of a contract … . They include “money that the breaching party agreed to pay under the contract.. . By contrast, consequential, or special, damages do not “directly flow from the breach” … . “The distinction between general and special contract damages is well defined, but its application to specific contracts and controversies is usually more elusive” … . Lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for such profits and they are “the direct and immediate fruits of the contract” … . Otherwise, where the damages reflect a “loss of profits on collateral business arrangements,” they are only recoverable when “(1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties”… .  * * *

Here, the agreement used plaintiff's resale price as a benchmark for the transfer price. The contract clearly contemplated that plaintiff would resell defendant's stents. That was the very essence of the contract. Any lost profits resulting from a breach would be the “natural and probable consequence” of that breach …. .

Although the lost profits sought by plaintiff are not specifically identified in the agreement, it cannot be said that defendant did not agree to pay them under the contract, as these profits flow directly from the pricing formula. The purpose of the agreement was to resell. Indeed, defendant … sought to enter a market unavailable to it by capitalizing on plaintiff's distribution network. The fact is that both defendant and plaintiff depended on the product's resale for their respective payments. Biotronik AG v Conor Medsystems Ireland Ltd, 8, CtApp 3-27-14

 

/

Department of Corrections Must Comply with State and Federal Courts’ Expressed Intent to Impose Concurrent Sentences

The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive:

Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give rise to complexities … . We do not need to engage in an extended discussion of the intricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, “[j]ust as the dual sovereignty doctrine acknowledges and protects the rights of each sovereign to exact as much punishment for a crime as that sovereign desires, the doctrine also acknowledges and protects the rights of each sovereign to exact as little punishment for the crime as that sovereign desires” … . Here, it is clear that both sovereigns intended the state and federal sentences to run concurrently. To run the sentences sequentially essentially because of the manner in which they were administered despite express intent otherwise by both sovereigns is analogous to a governmental entity other than the court lengthening a sentence, which this state does not permit …  Matter of Hall v LaValley, 515985, 3rd Dept 3-27-14

 

/ ,

Criteria for Judicial Review of Agency’s Action Under the State Environmental Quality Review Act Explained

The First Department determined Supreme Court should not have declared that the NYC Industrial Development Agency’s [IDA’s] issuance of a negative declaration (finding no further environmental review necessary for a project in the Bronx) violated the State Environmental Quality Review Act (SEQRA).  In so finding, the First Department explained the criteria for court review in this context:

“‘[J]udicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure'” …. “[T]he courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'” … .

Our review of the record establishes that the determination of IDA not to require a Supplemental Environmental Impact Study (SEIS) was not affected by an error of law, arbitrary and capricious, or an abuse of discretion … . Likewise, the record reflects that, as the lead agency, IDA identified the relevant areas of environmental concern related to the proposed action (including traffic, air quality and noise impact), took the requisite “hard look” at them and, in its negative declaration, set forth a reasoned elaboration of the basis for its determination that a SEIS [Supplemental Environmental Impact Statement] was not required … . Thus, Supreme Court should have declared that IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. Matter of South Bronx Unitd! v New York City Indus Dev Agency, 2014 NY Slip 02132, 1st Dept 3-27-14

 

/ , ,

Question of Fact Whether Out of Possession Landlord, Based on the Terms of the Lease, Had a Duty to Keep the Premises Safe (Labor Law 200)

The Second Department determined the provisions of a lease raised a question of fact about whether an out-of-possession landlord had a duty to keep the premises safe:

“Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work” … .  * * * …[T]o the extent that the plaintiff’s claims were based on a dangerous condition on the premises, specifically the structural design, construction, and condition of a portion of the floor, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. “An out-of-possession landlord generally will not be responsible for injuries occurring on its premises unless the landlord has a duty imposed by statute or assumed by contract or a course of conduct” … . Here, the lease submitted by the defendants in support of their motion provided, among other things, that the defendants were required to “repair the damaged structural parts of the Premises,” that they were “not required to repair or replace any equipment, fixtures, furnishings or decorations unless originally installed by Landlord,” and that they retained the “right to enter into and upon said premises, or any part thereof . . . for the purpose of . . . making such repairs or alterations therein as may be necessary for the safety and preservation thereof.” Based on these provisions, under the circumstances of this case, the defendants failed to establish as a matter of law that they did not have a duty imposed by contract to remedy the specific dangerous or defective condition alleged here. Thus, to prevail on their motion, the defendants were required to establish that they neither created the alleged dangerous or defective condition nor had actual or constructive notice thereof … . Here, the defendants failed to establish, prima facie, that they did not create the dangerous or defective condition alleged by the plaintiff to have contributed to his fall.  Quituizaca v Tucchiarone, 2014 NY Slip Op 02024, 2nd Dept 3-26-14

 

/

Basketball Player Assumed Risk of Running Into Glass Doors Behind Baseline

The Second Department determined a basketball player assumed the risk of the injuries suffered when his arm went through a glass door located behind the baseline.  The glass door constituted an open and obvious condition:

The doctrine of primary assumption of risk provides that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it … . If the risks are known by or perfectly obvious to the participant, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.

Here, based in part on the proximity of the court to the entrance doors, the defendants established their entitlement to judgment as a matter of law by demonstrating that the injured plaintiff had assumed the obvious and inherent risk of coming into contact with the pane of glass in the entrance door by electing to play basketball on that court… .  Perez v New York City Dept of Educ, 2014 NY Slip Op 02022, 2nd Dept 3-26-14

 

/

Passengers in Car Struck from Behind Entitled to Summary Judgment Despite Issue of Comparative Fault on the Part of the Driver of the Car in which They Were Passengers

The Second Department determined plaintiffs, who were passengers in a car struck from behind by the defendant (Farrell), were entitled to summary judgment in spite of the possible comparative negligence of the driver of the car in which they were passengers (Moncion):

Both plaintiffs established their entitlement to judgment as a matter of law by demonstrating, prima facie, that the vehicle in which they were passengers was struck in the rear by Farrell’s vehicle … . “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … . In opposition to the plaintiffs’ prima facie showings, Farrell failed to provide a nonnegligent explanation for the rear-end collision. Although Farrell submitted evidence sufficient to raise a triable issue of fact as to whether Moncion was comparatively at fault in causing the accident … , that evidence was insufficient to defeat the plaintiffs’ motions for summary judgment since Farrell failed to raise a triable issue of fact as to whether either one of the plaintiffs was at fault in the happening of the accident. Upon establishing his or her freedom from fault, the right of an innocent passenger to an award of summary judgment on the issue of liability against one driver is not barred or restricted by potential issues of comparative fault as between that driver and the driver of another vehicle involved in the accident … . Rodriguez v Farrell, 2014 NY Slip Op 02027, 2nd Dept 3-26-14

 

/

Res Judicata Doctrine Precluded Suit Despite Naming Additional Parties and Alleging Different Causes of Action and Legal Theories

The Second Department determined the doctrine of res judicata precluded plaintiff’s action, notwithstanding the additional parties named (found to be in privity the the parties named in the prior action) and the different causes of action and legal theories alleged:

“Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . Generally, to establish privity the interests of the nonparty must have been represented by a party in the prior proceeding … . The Court of Appeals has observed that privity is an “amorphous concept,” not easily applied…, but persons in privity include those whose interests are represented by a party to the previous action and those “[whose] own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation” … .”

The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims'” … . Thus, the doctrine of res judicata “operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding, as well as claims for different relief which arise out of the same factual grouping or transaction and which should have or could have been resolved in the prior proceeding” … . In determining whether a factual grouping constitutes a transaction for res judicata purposes, a court must apply a pragmatic test and analyze how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties’ expectations or business understanding … . For the doctrine of res judicata to be applied, there must have been, in the prior proceeding, a final judgment on the merits … . “An order granting a summary judgment motion is on the merits and has preclusive effect” … . Bayer v City of New York, 2014 NY Slip Op 02005, 2nd Dept 3-26-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy