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DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the lead-paint exposure complaint should not have been dismissed because, although the exposure occurred after the judgment of foreclosure on the property, it occurred before the foreclosure sale, when defendants still held title:

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… [D]efendants sought partial summary judgment dismissing those claims because defendants had lost title to the property by order of foreclosure entered on that date. We agree with plaintiff that the court erred in granting that part of defendants’ motion.

Although defendants established in support of that part of their motion that a judgment of foreclosure had been entered, it is well settled that ” [t]he entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until [a] sale is actually conducted’ ” … . It is undisputed that the actual sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint, and thus defendants failed to meet their burden on that part of their motion. Nero v Kendrick, 017 NY Slip Op 08980, Fourth Department 12-22-17

NEGLIGENCE (LEAD PAINT, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/FORECLOSURE (TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/REAL PROPERTY (FORECLOSURE, TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/LEAD PAINT (DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))

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ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT).

The First Department, over an extensive dissent, determined a release plaintiff’s decedent (South) agreed to in 1997 did not preclude the instant suit. South alleged he had been exposed to asbestos made by Texaco on board ships during his long career in the Merchant Marine. South died of mesothelioma. The 1997 release mentioned mesothelioma as a possible result of asbestos exposure but the First Department determined it was not clear South knew he was suffering from mesothemiola at the time he signed the release (in return for $1750.00). The case was analyzed under federal admiralty law law (Jones Act):

… [W]e find that the release does not pass muster. To tease out the true intent South had when he signed the release, it is necessary to consider the context in which he did so. The 1997 complaint, while making generalized allegations that South had been exposed to asbestos, is exceedingly vague as to whether he had actually contracted an asbestos-related disease. To be sure, it mentions a “devastating pulmonary disease Plaintiff now suffers” and an exhaustive grab-bag of asbestos-related diseases, from asbestosis to mesothelioma to brain cancer. However, it is impossible to conclude from the complaint that South had actually received a diagnosis. Indeed, the “meager” consideration he received for resolving the claim suggests that he had not been diagnosed with an asbestos-related disease, much less one even approaching the severity of the mesothelioma that the complaint specifically alleges he had. The complaint leaves open that possibility, to the extent it seeks relief for fear of an asbestos-related disease and not for the disease itself. Accordingly, the risk of contracting an actual asbestos-related disease remained hypothetical to South, and we decline to read the release as if South understood the implications of such a disease but chose nonetheless to release Texaco from claims arising from it.

Further, if South had not received a definitive diagnosis at the time the 1997 complaint was filed, then the release, to the extent it warns him of the possibility of “a new and different diagnosis from the diagnosis as of the date of this Release,” does not reflect the actual circumstances known to him, since the words “new” and “different” suggest that South had already been diagnosed with a disease when he executed the release. Rather, the lack of an actual diagnosis reveals the language in the release as mere boilerplate, and not the result of an agreement the parameters of which had been specifically negotiated and understood by South. Matter of New York City Asbestos Litig., 2017 NY Slip Op 06343  First Dept 8-29-17

CONTRACT LAW (RELEASES, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))/NEGLIGENCE (ASBESTOS, RELEASES, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))/TOXIC TORTS (ASBESTOS, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))/ASBESTOS (TOXIC TORTS, RELEASES, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))/ASBESTOS (TOXIC TORTS, RELEASES, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))/MESOPTHEMIOLA (ASBESTOS, RELEASES, ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT))

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TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT.

The Second Department determined the trial judge’s responses to an inconsistent verdict were inadequate and ordered a new trial , granting defendant’s motion to set aside the verdict. The jury, in this lead-paint poisoning case, found that the defendant property owner was negligent but that the negligence was not the proximate cause of the injury. However the jury went on to award plaintiff $250,000 in damages. The judge sent the jury back, instructing them that they could not award damages unless they found the negligence was the proximate cause of the injuries. The judge did not inform the jury they could adhere to their original finding on proximate cause. The jury returned a second verdict, this time finding defendant’s negligence was the proximate cause of the injuries:

Here, the jury’s first verdict was internally inconsistent when it awarded damages to the plaintiff despite finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries … . Thus, the Supreme Court properly directed the jury to reconsider the verdict. Notwithstanding, the record supports the conclusion that the second round of deliberations resulted in an unreliable verdict … . Specifically, the court failed to provide clear instructions to the jury regarding how to proceed with respect to the interrogatories concerning damages if it again found that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. This failure may have induced the jury to decide, out of confusion or frustration, to simply forgo the issue altogether by finding that the defendant’s negligence was a substantial factor in causing the plaintiff’s injuries. Moreover, the court’s response to the jury note to simply follow the instructions on the new verdict sheet was inadequate. ” Even after reconsideration by the jury, a trial court has discretion to set aside a verdict which is clearly the product of substantial confusion among the jurors'” … . Under these circumstances, the court should have granted that branch of the defendant’s motion which was to set aside the second jury verdict and directed a new trial … . Cleveland v Djeu, 2017 NY Slip Op 05417, 2nd Dept 7-5-17

CIVIL PROCEDURE (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/NEGLIGENCE (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/TOXIC TORTS (LEAD PAINT, MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/LEAD PAINT (MOTION TO SET ASIDE VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/VERDICT, MOTION TO SET ASIDE (TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)/JURY INSTRUCTIONS (CIVIL PROCEDURE, INCONSISTENT VERDICT, TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT)

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DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED.

The First Department, in an action seeking reimbursement for environmental cleanup costs, determined the policy exclusion from coverage of lead emissions controlled, even though the soil was also contaminated with lead paint, which was not excluded from coverage:

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In this case, not only did the damage result from different sources, i.e., lead emissions and lead paint, but, also, one source is excluded from coverage and the other is not. However, the damage resulting from either source is not readily divisible from the damage resulting from the other. The combined effect of the lead emissions and the lead paint was soil contamination – of the same soil. To the extent a particular area was contaminated solely by lead paint, it was not (and could not have been) included in the EPA’s remediation efforts (see 42 USC § 9604). Moreover, claimant would not have had to pay for any damage – including lead paint damage – if not for the accompanying pollution (see 42 USC § 9607). Thus, the entire claim is barred by the pollution exclusions. Matter of Midland Ins. Co., 2017 NY Slip Op 05171, 1st Dept 6-22-17

INSURANCE LAW (ENVIRONMENTAL CLEANUP, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)/ENVIRONMENTAL LAW (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)POLLUTION EXCLUSIONS (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)

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INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS.

The Fourth Department determined defendant insurance company had a duty to defend in this toxic tort case brought by residents in the vicinity of plaintiff business (Hillcrest) which allegedly contaminated the area with hazardous materials. Although the policy excluded coverage for damages caused by hazardous material, the complaint also alleged Hillcrest caused a “malodorous condition” which, the court reasoned, was not necessarily related to hazardous materials:

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It is well settled that an insurance company’s duty to defend is ” exceedingly broad,’ ” and is broader than the duty to indemnify … . The duty to defend arises whenever allegations of an underlying complaint suggest ” a reasonable possibility of coverage,’ ” even if facts outside the pleadings ” indicate that the claim may be meritless or not covered’ ” … . “[U]pon a motion such as this[,] the court’s duty is to compare the allegations of the complaint to the terms of the policy to determine whether a duty to defend exists” … .

Moreover, “exclusions are subject to strict construction and must be read narrowly” … . “In order to establish that an exclusion defeats coverage, the insurer has the heavy burden’ of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts” … .

Here, liberally construing the allegations set forth in the second amended complaint in the underlying action … , we conclude that there is a reasonable possibility of coverage, and that defendant therefore did not meet its heavy burden of establishing as a matter of law that the hazardous materials exclusion precludes coverage. The tort plaintiffs alleged in the second amended complaint that the Hillcrest plaintiffs’ operation of the facility “caused a malodorous condition to be created in the surrounding neighborhood.” Although many of the factual assertions in the second amended complaint allege that the odor resulted from hazardous materials, those are not the only factual allegations therein. Indeed, foul odors are not always caused by the discharge of hazardous materials. Inasmuch as there is a reasonable possibility of coverage, the court properly declared that defendant is obligated to defend the Hillcrest plaintiffs in the underlying tort action and ordered defendant to reimburse them for the cost of the defense. Hillcrest Coatings, Inc. v Colony Ins. Co., 2017 NY Slip Op 04613, 4th Dept 6-9-17

 

INSURANCE LAW (TOXIC TORTS, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/TOXIC TORTS (INSURANCE LAW, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/DUTY TO DEFEND (INSURANCE LAW, TOXIC TORTS, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)

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IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE.

The First Department determined Supreme Court should not have limited discovery in this lead-paint exposure case to documents relating solely to the apartments where infant plaintiff resided or spent time. The condition of other portions of the buildings may be relevant to defendants’ notice of the condition of the paint:

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The motion court should not have limited defendants’ production of records pertaining to lead-based paint exposure to the date of exposure and three years prior only in the subject apartments, namely, the apartment in which the infant plaintiff resided and the apartment, in a different building, where she attended day care. “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … .

Plaintiffs allege in their complaint that defendants “knew, should have known, and/or had reason to know that there was deteriorated, defective, flaking, chipping and peeling paint in the Subject Premises [apartments] and the Subject Building,” which “could be harmful to children” … . Yet, despite this knowledge, the complaint alleges that defendants were negligent in performing repairs within the plaintiffs’ residence and the apartment where the infant plaintiff attended day care, and permitted the continued “emission, discharge[], spread and dissemination of lead based paint . . . thus causing the exposure of the infant plaintiff” to the hazardous conditions which were a contributing cause of her lead poisoning. Additionally, since plaintiffs had evidence from the New York City Department of Housing Preservation and Development (HPD), which showed numerous lead paint violations in the subject buildings, and since evidence of lead paint hazards in one part of a building may be relevant to the issues of defendants’ notice of the condition, duties and obligations to the plaintiffs … , plaintiffs’ demand for production of records for lead-based paint violations in the other apartments in the buildings was appropriate … . “Knowledge of a dangerous condition in one portion of the structure may have imposed upon the owners an obligation to examine’ other portions of the structure for defects arising from the same cause, and to ascertain what was ascertainable with the exercise of reasonable care” … . The fact that plaintiffs may have been able to access some evidence of lead paint violations in the building from HPD does not preclude plaintiffs from seeking these records directly from defendants in discovery … .  Z.D. v MP Mgt., LLC, 2017 NY Slip Op 04059, 1st Dept 5-23-17

 

NEGLIGENCE (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/TOXIC TORTS  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/CIVIL PROCEDURE (DISCOVERY, IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/DISCOVERY  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/LEAD PAINT  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)

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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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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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HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined the asbestos-related causes of action against Honeywell as the manufacturer of coke ovens used in a steel plant did not sound in products liability. The huge coke ovens were deemed to be part of the realty, not products in the stream of commerce. Therefore the products liability causes of action should have been dismissed:

We begin our analysis by noting that, in Matter of City of Lackawanna v State Bd. of Equalization & Assessment of State of N.Y . (16 NY2d 222, 226-227), the Court of Appeals concluded, when discussing the nature of these coke oven batteries, that “[t]here is no doubt that, by common-law standards, these structures would be deemed real property. Their magnitude, their mode of physical annexation to the land and the obvious intention of the owner that such annexation be permanent would, indeed, compel that conclusion.”

Using the construction of Battery No. 9 as an example, Honeywell’s submissions established that the construction of a coke oven battery was a multistage process that took place over approximately 18 months. The overall construction of the battery would have taken approximately 1,460,000 hours of labor to complete over six phases. * * *

.. .[W]e conclude that service predominated the transaction herein and that it was a contract for the rendition of services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product … . We further conclude that a coke oven, installed as part of the construction of the “great complex of masonry structures” at Bethlehem … , permanently affixed to the real property within a coke oven battery, does not constitute a “product” for purposes of plaintiff’s products liability causes of action … . Terwilliger v Beazer E., Inc., 2017 NY Slip Op 03629, 4th Dept 5-5-17

PRODUCTS LIABILITY (HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/TOXIC TORTS (ASBESTOS, PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/ASBESTOS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)/COKE OVENS (PRODUCTS LIABILITY, HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN DISMISSED)

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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department determined the landlord’s motion for summary judgment in this lead paint poisoning case should not have been granted:

“In order [t]o establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition’ ” … . Where, as here, there is no evidence that the landlord had actual notice, plaintiffs may establish that the landlord had constructive notice of such condition by demonstrating that the landlord “(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … .  Here, it is undisputed that decedent retained a right of entry and assumed a duty to make repairs, but the remaining … factors are in dispute.

By submitting the deposition testimony of plaintiffs’ mother, wherein she testified that she told [defendant] that she would be living at the residence with her young children, [defendants] raised a triable issue of fact on the fifth … factor. Similarly, [defendant’s] own deposition testimony raised a triable issue of fact on the second … factor inasmuch as he testified that the subject residence was old, that lead was taken out of gasoline in 1970, and he “must have known” that laws regarding lead started to come out in the 1970s ,,, . Even assuming, arguendo, that [defendants] met their initial burden on the third and fourth … factors, we conclude that plaintiffs raised triable issues of fact by submitting ” evidence from which it may be inferred that [defendant] knew that paint was peeling on the premises’ . . . , and evidence from which a jury could infer that [defendant] knew or should have known of the dangers of lead paint to children’ ” … . Rodrigues v Lesser, 2017 NY Slip Op 03669, 4th Dept 5-5-17

 

NEGLIGENCE (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/TOXIC TORTS (LEAD PAINT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)/LEAD PAINT (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN GRANTED)

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