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“Toxic Torts” Decision-Summaries Posted on New York Appellate Digest Website Between January 1, 2013 and June 21, 2019.
Copyright 2019 New York Appellate Digest, LLC.
Toxic Torts
January 1, 2013 and
June 21, 2019
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the
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See Only the Court of Appeals Decision-Summaries.
1
Contents DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COKE OVENS
USED IN THE MANUFACTURE OF STEEL WERE NOT PRODUCTS TRIGGERING THE
DUTY TO WARN OF THE HAZARDS OF BREATHING EMISSIONS FROM THE OVENS,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN
GRANTED (CT APP). ................................................................................................................... 6
DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-
PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION
SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF
LIMITATIONS HAD EXPIRED (FOURTH DEPT)..................................................................... 7
DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING PRODUCT DURING AN
OFFICE BUILDING RENOVATION, PLAINTIFF, AN EVENING OFFICE CLEANER,
ALLEGED INJURY FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE
DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT PROPERLY DENIED (FIRST DEPT). ................................................................... 8
IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION
TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN
ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW
TRIAL ORDERED (THIRD DEPT). ............................................................................................. 8
RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT ENTITLE CHEVRON
TO SUMMARY JUDGMENT IN THIS ASBESTOS-MESOTHELIOMA CASE (CT APP). .... 9
STATUTORY PRESUMPTION THAT THE PAINT CONTAINED LEAD DID NOT APPLY
BECAUSE THERE WAS NO EVIDENCE THE INTERIOR OF THE BUILDING WAS
PAINTED PRIOR TO JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE
RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE CONNECTION BETWEEN
THE PAINT AND INFANT PLAINTIFF’S LEAD POISONING, DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). .. 11
APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE
VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY
PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE
DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE
CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT). .......................... 12
THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS
CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN
BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT
SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP). ....................................... 13
BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN
THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE
INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE
NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS
UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT). ... 13
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
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2
SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND
ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN
COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS
ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT ....................... 14
ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF’S EXPOSURE TO
ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED,
INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE
PRESENCE OF ASBESTOS (SECOND DEPT). ........................................................................ 15
PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT
DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF
PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF
DEFENDANT (THIRD DEPT). ................................................................................................... 16
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). ................................... 17
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). ................ 17
TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN
INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT. 18
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. ........ 19
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. ...................................... 20
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. ......................................... 21
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. ... 22
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. ... 23
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the
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3
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. ................................................................................................................................ 23
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT
POISONING CASE SHOULD NOT HAVE BEEN GRANTED. ............................................... 24
DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-
PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD,
COMPLAINT SHOULD HAVE BEEN DISMISSED. ............................................................... 25
NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION
BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY
JUDGMENT PROPERLY DENIED. ........................................................................................... 26
LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS
ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED.
....................................................................................................................................................... 27
PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE,
INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF
ASBESTOS EMANATING FROM DEFENDANT’S PRODUCTS........................................... 27
ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN
THIS PESTICIDE-INJURY LAWSUIT. ..................................................................................... 28
QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS
APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT. ...................... 29
DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN
TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS
GROUNDS. .................................................................................................................................. 29
ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE
RELEVANT POLICY. ................................................................................................................. 30
LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT
WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER
GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO
APARTMENTS WHERE A CHILD RESIDES. ......................................................................... 31
PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR OPINIONS ON THE CAUSE
OF PLAINTIFF’S IN UTERO INJURIES WERE ARRIVED AT USING A GENERALLY
ACCEPTED METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY FROM
GASOLINE FUMES IN CAR MANUFACTURED BY DEFENDANT BMW. ........................ 32
DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED SUMMARY
JUDGMENT IN THIS LEAD-PAINT-INJURY CASE, DEFENDANT FAILED TO
AFFIRMATIVELY DEMONSTRATE, INTER ALIA, LACK OF ACTUAL OR
CONSTRUCTIVE NOTICE. ....................................................................................................... 33
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the
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4
CRITERIA FOR LEAD-PAINT-EXPOSURE CAUSE OF ACTION DESCRIBED ................. 33
CPLR 214-C, WHICH STARTS THE STATUTE OF LIMITATIONS UPON DISCOVERY OF
THE INJURY, APPLIES ONLY TO TOXIC TORTS—THE STATUTE DOES NOT APPLY
TO AN ACTION SEEKING DAMAGES FOR THE ALLEGEDLY NEGLIGENT APPROVAL
(BY THE TOWN) OF A DEFECTIVE SEPTIC SYSTEM ......................................................... 34
LANDLORD FAILED TO ELIMINATE TRIABLE ISSUES OF FACT CONCERNING
WHETHER HE HAD CONSTRUCTIVE NOTICE OF THE PRESENCE OF LEAD PAINT . 35
CRITERIA FOR LIABILITY FOR LEAD PAINT EXPOSURE DESCRIBED ........................ 35
PLAINTIFF’S MOTION TO APPOINT A TEMPORARY ADMINISTRATOR AFTER
DEFENDANT’S DEATH PROPERLY DENIED—RELEVANT LAW EXPLAINED ............ 36
SUCCESSIVE TENANTS OF SAME APARTMENT LIMITED TO A SINGLE POLICY
LIMIT RE: RECOVERY FOR LEAD PAINT EXPOSURE ....................................................... 37
IN A LEAD-PAINT-INJURY CASE, NON-PARTY MEDICAL RECORDS NOT
DISCOVERABLE (RE: PLAINTIFF’S MOTHER AND SIBLINGS)–NON-PARTY
ACADEMIC RECORDS SHOULD BE SUBMITTED FOR IN CAMERA REVIEW–MOTHER
CANNOT BE COMPELLED TO SUBMIT TO AN IQ TEST ................................................... 38
SUMMARY JUDGMENT PROPERLY GRANTED TO PROPERTY OWNER IN LEAD-
PAINT-INJURY CASE ................................................................................................................ 39
COUNTY WATER AUTHORITY HAD STANDING TO BRING ACTION BASED UPON
THE CHEMICAL CONTAMINATION OF ITS WELLS—CPLR 214-C GOVERNS ACTIONS
BASED UPON CONTAMINATION—ACTION WAS UNTIMELY ........................................ 40
ABSENTEE LANDLORD GRANTED SUMMARY JUDGMENT IN LEAD-PAINT
EXPOSURE CASE—NO CONSTRUCTIVE NOTICE .............................................................. 41
PLAINTIFFS IN LEAD-PAINT EXPOSURE CASES ARE NOT REQUIRED TO HIRE AN
EXPERT TO LINK INJURIES TO LEAD-PAINT EXPOSURE AT THE CPLR 3121 (A)
DISCOVERY STAGE—HOWEVER, PLAINTIFFS MUST PROVIDE MEDICAL REPORTS
WHICH INCLUDE A “RECITAL OF THE INJURIES AND CONDITIONS AS TO WHICH
TESTIMONY WILL BE OFFERED AT THE TRIAL” .............................................................. 41
QUESTION OF FACT ABOUT PROPERTY OWNER’S CONSTRUCTIVE NOTICE OF
LEAD PAINT/TENANT BY THE ENTIRETY COULD BE VICARIOUSLY LIABLE .......... 43
CORPORATE OFFICER NOT LIABLE IN LEAD PAINT EXPOSURE CASE UNDER
“COMMISSION OF A TORT” DOCTRINE FOR NONFEASANCE/NO EVIDENCE OF
MALFEASANCE OR MISFEASANCE ...................................................................................... 43
EUGENICS ARGUMENT SHOULD BE REJECTED IN A LEAD-PAINT POISONING
CASE/NOTICE CRITERIA EXPLAINED .................................................................................. 44
NO CONSTRUCTIVE NOTICE OF PEELING PAINT IN LEAD-PAINT EXPOSURE CASES
....................................................................................................................................................... 45
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the
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5
NUMEROUS CORE ISSUES DISCUSSED IN COMPLICATED CASE STEMMING FROM
MOLD IN A COMPLEX OF APARTMENTS WHICH NECESSITATED TERMINATION OF
ALL THE LEASES ...................................................................................................................... 46
PROOF OF NORMAL NOTIFICATION PROCEDURE SUFFICIENT TO DEMONSTRATE
DEFENDANT WAS NOTIFIED OF LEAD-PAINT-INJURY EXCLUSION IN POLICY ...... 46
DISCLOSURE APPROPRIATE IN LEAD PAINT CASE, PHYSICIAN-PATIENT
PRIVILEGE WAIVED ................................................................................................................. 47
“NEGLIGENT OWNERSHIP AND MAINTENANCE” VS “NEGLIGENT ABATEMENT”
CAUSES OF ACTION IN LEAD-PAINT CASE ........................................................................ 48
PAST PSYCHOLOGICAL RECORDS DEEMED RELEVANT IN LEAD-PAINT INJURY
CASE WHERE PSYCHOLOGICAL INJURY ALLEGED ........................................................ 48
ONLY SELLERS’, NOT BUYERS’, AGENT CAN BE LIABLE FOR FAILURE TO
DISCLOSE LEAD PAINT DANGERS ....................................................................................... 49
NOTICE ELEMENT OF LEAD-PAINT INJURY CAUSE OF ACTION EXPLAINED .......... 49
“SPEAKING AUTHORIZATIONS” RE NON-PARTY HEALTHCARE PROVIDERS IN
LEAD-PAINT INJURY CASE OKAY/BUT NOT OKAY FOR NON-PARTY EDUCATORS 50
OKAY TO COMPEL PLAINTIFF TO PRODUCE MEDICAL REPORTS LINKING INJURY
TO LEAD PAINT OR BE PRECLUDED FROM INTRODUCING SUCH EVIDENCE .......... 50
PLAINTIFF WAS UNABLE TO DEMONSTRATE LANDLORD HAD KNOWLEDGE OF
PRESENCE OF LEAD PAINT .................................................................................................... 51
IN LEAD PAINT EXPOSURE CASE, COURT’S ORDER TO PROVIDE MEDICAL REPORT
LINKING INJURIES TO EXPOSURE BEFORE DEPOSITIONS UPHELD ............................ 51
QUESTION OF FACT RAISED ABOUT OWNER’S KNOWLEDGE OF PRESENCE OF
LEAD PAINT ............................................................................................................................... 52
OWNER/OFFICER OF COMPANY CAN BE PERSONALLY LIABLE FOR TOXIC
EMISSIONS RELEASED BY COMPANY. ............................................................................... 53
SINGLE POLICY LIMIT HELD TO APPLY TO SUCCESSIVE TENANTS IN LEAD-PAINT-
TAINTED APARTMENT. ........................................................................................................... 53
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the
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6
DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW
THAT COKE OVENS USED IN THE MANUFACTURE OF STEEL
WERE NOT PRODUCTS TRIGGERING THE DUTY TO WARN OF
THE HAZARDS OF BREATHING EMISSIONS FROM THE OVENS,
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD
NOT HAVE BEEN GRANTED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, reversing the Appellate
Division, determined the defendant (Wilputte), which sold coke ovens for steel production, did not demonstrate,
as a matter of law, the ovens were not “products” triggering the duty to warn. Therefore defendant’s motion for
summary judgment should not have been granted (by the Appellate Division). Plaintiff’s decedent worked on
top of the coke ovens and alleged breathing the toxic substances caused lung cancer. Plaintiffs alleged defendant
had a duty to warn plaintiff’s decedent to use a respirator when working on the ovens. The Appellate Division
had determined the coke ovens, housed in so-called “batteries,” were akin to buildings and construction of the
buildings was a service, not a product:
… [D]efendant has not met its burden in showing that the coke ovens at issue are not products as a matter of
law. Regardless of the alterations Bethlehem [the steel manufacturer] may have made to the scale and
specifications of the battery at large, the ovens themselves served one function: the production of coke. This
process was standard across all variations of coke ovens that Wilputte sold, ultimately placing the hazardous
thing at issue squarely within the category of products to which liability has attached in the failure-to-warn
context. …
… Wilputte was responsible for placing the ovens into the stream of commerce and that it derived financial
benefit from its role in the production process. Indeed, by the time decedent began working for Bethlehem,
Wilputte had sold hundreds of coke ovens to plants … . Wilputte also marketed its ovens with informational
brochures showing the completed ovens and their functionality, indicating that Wilputte, not Bethlehem, was the
commercial source of the product. … Although the ovens were largely assembled and completed on-site, that
merely speaks to the logistical realties of the market of which Wilputte had a considerable share. …
… [T]he record supports Supreme Court’s conclusion that Wilputte was in the best position to assess the safety
of the coke ovens because of its superior knowledge regarding the ovens’ intended functionality … . “A major
determinant of the existence of a duty to warn” is an assessment of “whether the manufacturer is in a superior
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
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7
position to know of and warn against those hazards” inherent to its product … . Matter of Eighth Jud. Dist.
Asbestos Litig., 2019 NY Slip Op 04640, CtApp 6-11-19
DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF
ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE
THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN
GRANTED ON THE GROUND THAT THE STATUTE OF
LIMITATIONS HAD EXPIRED (FOURTH DEPT).
The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to
demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment
on the ground that the statute of limitations had passed should not have been granted:
In moving to dismiss the complaint on statute of limitations grounds, each defendant had “the initial burden of
establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter
alia, when the plaintiff[s’] cause of action accrued” … Here, neither defendant established the relevant accrual
date of plaintiffs’ claims for injury caused by the latent effects of lead paint exposure and, in the absence of such
evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on
those claims … . Supreme Court thus erred in granting defendants’ respective motions to that extent. We note
that, at oral argument in these appeals, plaintiffs conceded that their claims for patent injuries arising from such
exposure were properly dismissed as time-barred. Chaplin v Tompkins, 2019 NY Slip Op 04562, Fourth Dept
6-7-19
Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the
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8
DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING
PRODUCT DURING AN OFFICE BUILDING RENOVATION,
PLAINTIFF, AN EVENING OFFICE CLEANER, ALLEGED INJURY
FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE
DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).
The First Department determined defendant’s motion for summary judgment in this toxic tort case was properly
denied. Plaintiff, an evening cleaner in an office building, allege she was injured by inhaling toxic fumes from a
paint stripping product used by a defendant’s subcontractor (Island Painting):
Defendant failed to establish prima facie that it did not have actual or constructive notice of the alleged dangerous
condition of the premises in time to take corrective measures … . Defendant submitted no evidence with respect
to notice. However, there is evidence in the record that defendant had superintendents on site who oversaw the
subcontractors’ work and that defendant had a duty to notify and warn the building owner and its occupants of
hazardous work undertaken on the project site so as to safeguard the building’s occupants against exposure to
such hazards. Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper
and of the product’s toxicity and yet failed to warn the building owner and occupants to prevent harm to them.
These issues of fact as to negligence also preclude summary judgment in defendant’s favor on its claim for
contractual indemnification by Island Painting … . Arias v Recife Realty Co., N.V., 2019 NY Slip Op 04269,
First Dept 5-30-19
IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED
DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER
STATES SHOULD NOT HAVE BEEN ADMITTED IN THE
PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW
TRIAL ORDERED (THIRD DEPT).
The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings
in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from
exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles
Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:
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9
CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the
rules of evidence, may be used . . . by any party for any purpose against any other party who was present or
represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant
was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the
purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to
introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff
was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not
admissible under CPLR 3117 (a) (3) … . …
Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s
2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude
Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s
deposition testimony should have been admitted into evidence at this trial. Although a live witness may be
impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the
trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other
states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other
witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier
actions and selectively playing those portions they believed supported their respective contentions. The jury was
essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois
or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions
on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another
deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19
RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT
ENTITLE CHEVRON TO SUMMARY JUDGMENT IN THIS
ASBESTOS-MESOTHELIOMA CASE (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined that
defendant Chevron was not entitled to summary judgment in this asbestos-mesothelioma action. Plaintiff’s
decedent [Mr. South] signed a release in 1997 and Chevron argued the release precluded the subsequent lawsuit:
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10
Like Supreme Court, the Appellate Division concluded that the record did not demonstrate Chevron’s
entitlement to summary judgment, because the release did not specifically mention mesothelioma, which then
required the court to determine whether extrinsic evidence entitled Chevron to summary judgment. Pointing to
the “meager consideration” [$1,750] and the lack of any diagnosis of mesothelioma as to Mr. South at the time
he settled, the Appellate Division concluded that the record left open the question of whether the release
pertained to an existing pulmonary condition and the fear of some future asbestos-related disease, or if it was
intended to release all future asbestos-related diseases arising from Mr. South’s employment by Texaco. The
parties agree that, at the time he executed the release, Mr. South suffered from a nonmalignant pulmonary disease
but not from mesothelioma or cancer. …
The sole question presented to us on this appeal is whether Chevron has established that the release, coupled
with the 1997 complaint, eliminates all material questions of fact and proves that the release bars the claims here
as a matter of law. Answering that question requires us to consider the protections afforded to Mr. South by
admiralty law and Section 5 of FELA [Federal Employers’ Liability Act] (45 USC § 55), which is incorporated
into the Jones Act by 46 USC § 30104. …
… [W]e conclude that Chevron has not met its burden to demonstrate the absence of any material question of
fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma … . The release
itself does not mention mesothelioma. It does say that Mr. South “is giving up the right to bring an action against
the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about
Claimant’s condition as a result of exposure to any product[.]” But “claimant’s condition” may cabin the “new
or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the
“condition” both parties agree was the only one he suffered at the time. Matter of New York City Asbestos Litig.,
2019 NY Slip Op 01259, CtApp 2-19-19
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11
STATUTORY PRESUMPTION THAT THE PAINT CONTAINED
LEAD DID NOT APPLY BECAUSE THERE WAS NO EVIDENCE THE
INTERIOR OF THE BUILDING WAS PAINTED PRIOR TO
JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE
RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE
CONNECTION BETWEEN THE PAINT AND INFANT PLAINTIFF’S
LEAD POISONING, DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined that
questions of fact were raised about the landlord’s (New York City Housing Authority’s, NYCHA’s)
responsibility for the lead poisoning of infant plaintiff (A.L.). Successive blood tests revealed increasing lead
levels as the child aged, and a decrease after the apartment was repainted. The first issue the court dealt with was
whether Local Law 1, which creates a presumption that the paint in the apartment contains more than .5 percent
lead for buildings “erected” prior to January 1, 1960, applied. The certificate of occupancy for the building was
issued in March, 1961, but there was evidence the building was under construction in 1959. “Erected” was
(apparently) interpreted to mean when the apartment was painted, so the statutory presumption did not apply:
Here, A.L.’s elevated blood lead level suggests … a hazardous condition may have existed in the apartment
during the relevant period. While there are other sources of lead poisoning, housing is a prime source … The
circumstantial evidence of a hazardous lead-based paint condition is also supported by an affirmation by Dr.
Douglas B. Savino and an affidavit by lead paint expert William Savarese. Dr. Savino concluded that the
apartment contained a hazardous level of lead-based paint, given the “chronology of the infant plaintiff’s blood
lead levels,” which was “environmentally and temporally related to the infant plaintiff’s residence.” He noted
that A.L.’s blood levels increased over time until he was diagnosed with 16 ug/dl on March 19, 2003, coinciding
with the repainting of the apartment on March 5-6, 2003. Dr. Savino attributed the lead spike in A.L.’s blood to
A.L. ingesting an excessive amount of lead dust. Dr. Savino further pointed out that A.L.’s blood lead levels
declined gradually after the 2003 apartment repair and the 2004 removal of the chipped and peeling interior
doors. William Savarese echoed Dr. Savino’s statements and conclusions. A.L. v New York City Hous. Auth.,
2019 NY Slip Op 00702, First Dept 1-31-19
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APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM
AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS
SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED,
ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE
DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS
UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE
DELAY (THIRD DEPT).
The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of
claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although
petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts
underlying the claim and were not prejudiced by the the delay:
… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the
likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential
negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly
claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly,
we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts
underlying petitioners’ claims … . …
Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay
in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since
at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure
and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in
its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the
source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further
investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other
than the passage of time, respondent has offered no particularized evidence in opposition to establish that it
suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third
Dept 1-17-19
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THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT
IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL
CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND
PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED
BY LEGALLY SUFFICIENT EVIDENCE (CT APP).
The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos
case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection
between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally
insufficient. Plaintiff’s decedent worked in a garage and was exposed to asbestos-laden dust from new and used
brakes, clutches and manifold and engine gaskets:
Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law
to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries
pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st
St. Realty, LLC(22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to
judgment as a matter of law under CPLR 4404 (a) … . Matter of New York City Asbestos Litig., 2018 NY Slip
Op 08059, CtApp 11-27-18
BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM
THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED
PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN
THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE
OF THE LESSEE AND THEREFORE THE CLAUSE WAS
UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW
(SECOND DEPT).
The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment
in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The
subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek
indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because
it was not limited to the lessee’s negligence:
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At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-
2013(h) (Local Law 1) … placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased
premises where children under the specified age resided… . The owner of a cooperative corporation was
considered the owner of a multiple dwelling for purposes of Local Law 1… .
Contrary to the [lessee’s] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to
abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either
contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed
to the infant plaintiff’s injuries… . However, under the circumstances presented, [the owner] may not seek
contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary
lease. “A broad indemnification provision in a lease . . . which is not limited to the lessee’s acts or omissions,
fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the
lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law
§ 5-321” … . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18
SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A
DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF
PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A
CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS
ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND
DEPT
The Second Department, reversing Supreme Court, determined the delay in complying with a conditional
discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of
plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:
“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable
excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or
defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in
concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the
plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff
demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .
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Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion
which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result
of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of
prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless
the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met,
[t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the
proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it
would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those
set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18
ACTIONS AGAINST THE COUNTY STEMMING FROM
PLAINTIFF’S EXPOSURE TO ASBESTOS WHILE WORKING ON
COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN
ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE
PRESENCE OF ASBESTOS (SECOND DEPT).
The Second Department determined plaintiff's actions stemming from exposure to asbestos, including an action
against the county alleging fraudulent concealment of the presence of asbestos where plaintiff worked, were time
barred:
Generally, an action to recover damages for personal injuries caused by the latent effects of exposure to any
substance or combination of substances must be commenced within three years of the date of discovery of the
injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should
have been discovered by the plaintiff, whichever is earlier (see CPLR 214-c[2] …). “For purposes of CPLR 214-
c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the
particular substance, the injured party discovers the primary condition on which the claim is based'” … . Where,
as here, a claim is asserted against a municipality, the statute of limitations as to the claim against the
municipality is 1 year and 90 days and is measured from the date of discovery of the injury or from the date
when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier
… . O'Brien v County of Nassau, 2018 NY Slip Op 05774, Second Dept 8-15-18
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PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S
DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS
CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT
EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF
DEFENDANT (THIRD DEPT).
The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the
grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert
disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to
sewage and mold at the premises caused health problems. Plaintiff did not disclose her expert, one of her treating
physicians (Johanning), until a year after the discovery deadline imposed by Supreme Court. Defendant had
timely submitted expert evidence opining there was no causal relationship between plaintiff's exposure to sewage
and mold at the leased premises and plaintiff's health problems:
… [T]his Court has interpreted CPLR 3101 (d) (1) (i) as “requiring disclosure of any medical professional, even
a treating physician or nurse, who is expected to give expert testimony” … . Thus, while Johanning was listed
in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and
medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have
been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1)
(i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of
the facts and opinions to which he was expected to testify… . To that end, the expert disclosure statute requires,
in relevant part, “reasonable detail [of] the subject matter on which [the] expert is expected to testify, the
substance of the facts and opinions . . . and a summary of the grounds for [the] expert's opinion” (CPLR 3101
[d] [1] [i]), none of which was timely disclosed to defendant … . Notably, “the burden of providing expert
witness disclosure and setting forth the particular details required by the statute lies with the party seeking to
utilize the expert; it is not opposing counsel's responsibility to cull through [copious medical records] to ferret
out the qualifications of the subject expert, the facts or opinions that will form the basis for his or her testimony
at trial and/or the grounds upon which the resulting opinion will be based”… . Moreover, the record supports
Supreme Court's conclusions that Johanning's expert affidavit, submitted for the first time in opposition to
defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records
… . Thus, the court providently precluded Johanning's expert affidavit and testimony. Colucci v Stuyvesant
Plaza, Inc., 2018 NY Slip Op 00211, Third Dept 1-11-18
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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:
… [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
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
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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
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
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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
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:
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
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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
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:
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
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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
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:
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
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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
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
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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
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
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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
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.
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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
DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE
NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT
HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE
BEEN DISMISSED.
The Fourth Department determined the lead paint poisoning complaint should have been dismissed because
plaintiff was unable to show defendants had actual or constructive knowledge of the condition and defendants
were not under a duty to test for lead:
Defendants submitted affidavits and deposition testimony establishing that they were not aware of any peeling
or chipping paint on the premises prior to the inspection conducted by the [Monroe County Department of
Health]. Defendants also established that neither plaintiff nor the relatives with whom plaintiff resided at the
premises ever complained to either defendant of any peeling or chipping paint on the premises. Contrary to
plaintiff’s contention, he failed to raise an issue of fact whether defendants were aware of chipping and peeling
paint on the premises … , or whether defendants retained the requisite right of entry to the apartment to sustain
a claim for constructive notice … . Furthermore, “[w]ithout evidence legally sufficient to permit a jury to
rationally infer that the defendant had constructive notice of a dangerous condition, the defendant cannot be held
liable for failure to warn or to remedy the defect” … . Consequently, absent evidence raising a triable issue of
fact whether defendants had actual or constructive notice of a dangerous condition on the premises, the court
erred in denying that part of the motion seeking dismissal of the failure to warn claim. …
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“The Court of Appeals in Chapman (97 NY2d at 21) expressly decline[d] to impose a new duty on landlords to
test for the existence of lead in leased properties based solely upon the general knowledge of the dangers of lead-
based paints in older homes” … . Taggart v Fandel, 2017 NY Slip Op 02177, 4th Dept 3-24-17
NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO
PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT
HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED.
The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary
judgment in this lead-paint poisoning case was properly denied. The NYCHA argued that the building was
constructed in 1974 and lead paint was banned in 1960:
Although NYCHA relies on its own testing that was negative for lead paint, DOH’s [Department of Health’s]
lead testing came back positive. NYCHA’s arguments that these were false positives due to the manner in which,
and location from where, the samples were taken is insufficient to disregard them as a matter of law. * * *
Nor did NYCHA prove as a matter of law, that it had no actual or constructive notice of the existence of lead
paint in the building. Pursuant to the City’s Childhood Lead Poisoning Prevention Act (Local Law 1 of 2004),
lead-based paint is presumed to exist in a multiple dwelling unit if the building was built before 1960. Where,
as here, the building is built between 1960 and 1978, the presumption will apply only if the owner knows that
there is lead-based paint, and a child under the age of six lives in the apartment. Although in a pre-1960 building,
paint is presumed to contain lead, the opposite is not true; there is no presumption that paint in a building
constructed after 1960 is not lead-based. Given plaintiff’s claim, that NYCHA maintains the premises and
assumed the duty to have the apartments painted, the absence of any evidence concerning the history of painting
in the subject apartments is insufficient for the court to rule out, as a matter of law, notice. Dakota Jade T. v New
York City Hous. Auth., 2017 NY Slip Op 01987, 1st Dept 3-21-17
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LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM
WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN
THE CAUSE OF THE SYMPTOMS IS LEARNED.
The Third Department determined an action by a 28-year-old woman alleging lead paint poisoning was time-
barred. Plaintiff was first diagnosed with high levels of lead in 1990. The statute of limitations runs from when
the symptoms are first discovered, not when the cause of the symptoms is learned:
… [D]efendants’ submissions were sufficient to demonstrate that plaintiff was cognizant of her claimed injuries,
or, at a minimum, reasonably should have been, such that the action is barred by the statute of limitations.
Although CPLR 214-c (2) permits an action to proceed within three years from the “discovery of the injury,”
this means the “discover[y of] the primary condition on which the claim is based” … , or, put differently, “the
discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” … . Here,
accepting that lead was the causative harmful substance, plaintiff was aware of her injuries, which first
manifested when she started public education in 1990 and, according to plaintiff, continued throughout her
school years. Although plaintiff argues that her action is timely because she first discovered that she suffered
lead poisoning when her attorney sent a solicitation letter to her mother in 2012, we disagree. Where, as here, a
plaintiff is seeking the benefit of the discovery rule applicable to toxic torts, the statute runs from the date the
condition or symptom is discovered or reasonably should have been discovered, not the discovery of the specific
cause of the condition or symptom … . Vasilatos v Dzamba, 2017 NY Slip Op 01615, 3rd Dept 3-2-17
PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET
ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO
DANGEROUS LEVELS OF ASBESTOS EMANATING FROM
DEFENDANT’S PRODUCTS.
The First Department, in a full-fledged opinion by Justice Saxe, over a two-justice dissenting opinion,
determined the plaintiff’s verdict in this asbestos/mesothelioma case was properly set aside by the trial court.
The First Department held the plaintiff’s experts did not present sufficient proof plaintiff’s decedent was exposed
to dangerous levels of asbestos emanating from defendant’s products while working as an auto mechanic:
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… [T]he fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of
liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to
sufficient levels of the toxin from the defendant’s products to have caused his disease … . Even if it is not
possible to quantify a plaintiff’s exposure, causation from exposure to toxins in a defendant’s product must be
established through some scientific method, such as mathematical modeling based on a plaintiff’s work history,
or comparing the plaintiff’s exposure with that of subjects of reported studies … .
The evidence presented by plaintiff here was insufficient because it failed to establish that the decedent’s
mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or
distributed by defendant Ford Motor Company. Plaintiff’s experts effectively testified only in terms of an
increased risk and association between asbestos and mesothelioma … , but failed to either quantify the decedent’s
exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford’s
products … . Matter of New York City Asbestos Litig., 2017 NY Slip Op 01523, 1st Dept 2-28-17
ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY
FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT.
The Fourth Department determined only the failure to warn causes of action in this lawsuit against a pesticide
manufacturer were preempted by federal law. Supreme Court should not have dismissed the negligence,
defective design/manufacture and breach of warranty causes of action. The Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) preempted only those causes of action that could result in state labelling requirements:
The preemption provision of FIFRA provides that, “[i]n general[,] . . . a State may regulate the sale or use of any
federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit
any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On the other hand, FIFRA provides that, in
the interest of “[u]niformity[,] . . . [s]uch State shall not impose or continue in effect any requirements for labeling
or packaging in addition to or different from those required under this subchapter” … . * * *
… [W]e conclude that the court erred in dismissing the third, fifth, and sixth causes of action of plaintiff’s
amended complaint, as well as those parts of the fourth cause of action that do not allege a failure to warn.
Plaintiff’s causes of action and claims alleging defendant’s breach of warranty, ordinary negligence, and
defective design and manufacture of its product, i.e., theories unrelated to labeling or packaging, are not
preempted by FIFRA … . Esposito v Contec, Inc., 2017 NY Slip Op 00842, 4th Dept 2-3-17
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QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION
PROVISIONS APPLIED TO CERTAIN POLICIES COVERING
INJURY BY LEAD PAINT.
The First Department, in a case reversed and remitted by the Court of Appeals, determined there was a question
of fact whether contractual subrogation provisions applied to certain policies covering injury by lead paint
(remitting the case to Supreme Court). The Court of Appeals had held the antisubrogation rule did not apply to
preclude recovery:
Given the ambiguities in the relevant agreements, we cannot find as a matter of law that the insurers are entitled
to contractually subrogate to ANP’s indemnification rights. On remand, the motion court is to consider the intent
of these provisions in light of the extrinsic evidence. Millennium Holdings LLC v Glidden Co., 2017 NY Slip
Op 00258, 1st Dept 1-17-17
DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY
JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON
STATUTE OF LIMITATIONS GROUNDS.
The Third Department, reversing Supreme Court, determined defendant was not entitled to summary judgment
dismissing plaintiff's toxic tort action on statute of limitations grounds. Plaintiff alleged injury caused by mold
in a building owned by defendant:
… [D]efendant was required to show, at a minimum, that plaintiff's alleged exposure to a toxic substance did
not occur within three years of the commencement of the action … . If defendant exposed or continued to expose
plaintiff to a toxic substance within three years of the commencement of the action, plaintiff could not have
discovered any resulting injuries from such exposure at a time that would be barred by CPLR 214-c (2). Given
that a plaintiff cannot discover the injurious effects of exposure to a toxic substance prior to that exposure
occurring, and considering defendant's concession that plaintiff continued to be exposed to the mold at a time
less than three years prior to the commencement of the action, defendant is not entitled to summary judgment
dismissing the complaint on statute of limitations grounds.
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Turning to the allegedly injurious exposure taking place more than three years prior to the commencement of
the action, we find that defendant did not prove as a matter of law that plaintiff should have discovered his
allergy and asthma conditions at a time that is barred by CPLR 214-c (2). Although plaintiff exhibited some
symptoms, including skin and eye irritation and tightness in the throat, in the spring and summer of 2002, plaintiff
also explained that such symptoms ceased when he would leave the building at the end of his shifts. Further,
plaintiff averred that he did not seek medical treatment for these symptoms, miss work as a result of the
symptoms or file a workers' compensation claim until late October 2002. Viewing the evidence in the light most
favorable to plaintiff, the symptoms that plaintiff exhibited more than three years prior to the commencement of
the action were too intermittent and inconsequential to trigger the running of the statute of limitations pursuant
to CPLR 214-c (2) … . Malone v Court W. Developers, Inc., 2016 NY Slip Op 03571, 3rd Dept 5-5-16
ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT
COVERED BY THE RELEVANT POLICY.
The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing the Appellate Division, re:
claims stemming from lead paint exposure, determined the antisubrogation rule did not apply to a party,
ANP, which was not covered by the relevant policy:
… [T]he antisubrogation rule is an exception to the right of subrogation … . Under that rule, “an 'insurer has no
right of subrogation against its own insured for a claim arising from the very risk for which the insured was
covered . . . even where the insured has expressly agreed to indemnify the party from whom the insurer's rights
are derived'” … . In effect, “an insurer may not step into the shoes of its insured to sue a third-party tortfeasor .
. . for damages arising from the same risk covered by the policy” … , even where there is an express subrogation
agreement … . The two primary purposes of the antisubrogation rule are to avoid “a conflict of interest that
would undercut the insurer's incentive to provide an insured with a vigorous defense” and “to prohibit an insurer
from passing its loss to its own insured” … . * * *
The antisubrogation rule … requires a showing that the party the insurer is seeking to enforce its right of
subrogation against is its insured, an additional insured, or a party who is intended to be covered by the insurance
policy in some other way … . Here, as recognized by the courts below, ANP and its predecessor were not insured
under the relevant insurance policies. … Thus, the principal element for application of the antisubrogation rule
— that the insurer seeks to enforce its right of subrogation against its own insured, additional insured, or a party
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intended to be covered by the insurance policy — is absent. Millennium Holdings LLC v Glidden Co., 2016 NY
Slip Op 03543, CtApp 5-5-16
LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN
AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER
WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING
LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS
WHERE A CHILD RESIDES.
The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissenting opinion by Judge Fahey,
determined a New York City Local Law, which imposed a duty on the landlord to abate lead paint in an apartment
where a child under the age of six “resides,” did not apply to an apartment where a child was cared for 50 hours
per week. Plaintiff’s child was cared for during the day by grandmother in grandmother’s apartment. The child
developed an elevated lead level. In order to sue the landlord, the landlord must have owed a statutory duty to
the child to abate the lead in grandmother’s apartment. The majority held that the term “reside” in the Local Law
did not encompass the child’s presence in the apartment 50 hours a week. Therefore the landlord owed no duty
to the child:
Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a
place as one’s legal domicile” (Merriam Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “to have
a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary
1931 [1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person
keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” … . Black’s Law Dictionary
notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is
a combination of acts and intention. Residence implies something more than mere physical presence and
something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979]). * * *
Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this
understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of
the words it used as well as existing decisional law …, which, in this case, understood residence as something
more than physical presence but something less than domicile — living in a particular place with the intent to
retain it as a residence … . Had the City intended to expand the meaning of the word “reside” to include children
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who do not actually live in an apartment but spend significant amounts of time there, it could have used words
to that effect … . Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550, CtApp 4-5-16
PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR
OPINIONS ON THE CAUSE OF PLAINTIFF’S IN UTERO INJURIES
WERE ARRIVED AT USING A GENERALLY ACCEPTED
METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY
FROM GASOLINE FUMES IN CAR MANUFACTURED BY
DEFENDANT BMW.
The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court’s preclusion of
plaintiff’s experts’ opinions on causation of plaintiff’s in utero injuries was proper. Plaintiff alleged his severe
birth defects were caused by gasoline fumes breathed by his mother when she drove a car manufactured by
defendant BMW. Plaintiff’s experts attempted to demonstrate a causal connection between breathing the fumes
and the in utero injuries. The Court of Appeals held the experts had not demonstrated their opinions were reached
by employing a methodology generally accepted in the scientific community:
Not only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a
toxin to have caused his injuries, but the expert also must do so through methods “found to be generally accepted
as reliable in the scientific community” … . This “general acceptance” requirement, also known as the Frye test,
governs the admissibility of expert testimony in New York. It asks “whether the expert’s techniques, when
properly performed, generate results accepted as reliable within the scientific community generally” … .
Although unanimity is not required, the proponent must show “consensus in the scientific community as to the
[methodology’s] reliability” … .
Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded
that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports
by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness,
headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific
study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability.
Therefore, the courts below properly granted defendants’ motion to preclude their testimony at trial. Sean R. v
BMW of N. Am., LLC, 2016 NY Slip Op 01000, CtApp 2-11-16
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DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED
SUMMARY JUDGMENT IN THIS LEAD-PAINT-INJURY CASE,
DEFENDANT FAILED TO AFFIRMATIVELY DEMONSTRATE,
INTER ALIA, LACK OF ACTUAL OR CONSTRUCTIVE NOTICE.
The Fourth Department determined defendant landlord should not have been granted summary judgment in this
lead-paint-injury action. [The case presents another example of a defendant’s failure to affirmatively address
all possible theories of recovery in summary-judgment-motion papers.] Defendant failed to demonstrate, inter
alia, the absence of a hazardous condition and her lack of actual or constructive notice of the condition. On the
issue of constructive notice, the court wrote:
In Chapman, the Court of Appeals [92 NY2d 9] addressed constructive notice, writing that “a triable issue of
fact [on notice] is raised when [the evidence] shows 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” (id. at 15). Here, it is
undisputed that defendant retained a right of entry and assumed a duty to make repairs; that she knew that the
residence was constructed before lead-based paint was banned; and that she knew that young children lived in
the apartment. Rodrigues v Lesser, 2016 NY Slip Op 00836, 4th Dept 2-5-16
Criteria for Lead-Paint-Exposure Cause of Action Described
In finding plaintiff had raised a question of fact whether one of the defendant landlords was aware of peeling
lead paint in the apartment (because of alleged complaints about it), the Fourth Depatment explained the
elements of a lead-paint-exposure cause of action:
” To 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,’ ” and
failed to do so … . Thus, to meet their burden on their motions for summary judgment with respect to the
premises liability causes of action, defendants were required to establish that they “had no actual or constructive
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notice of the hazardous lead paint condition prior to an inspection conducted by the [Oswego] County
Department of Health” (…see generally Chapman v Silber, 97 NY2d 9, 15). … “[T]he factors set forth in
Chapman . . . remain the bases for determining whether a landlord knew or should have known of the existence
of a hazardous lead paint condition and thus may be held liable in a lead paint case”… . Kimball v
Normandeau, 2015 NY Slip Op 07357, 4th Dept 10-8-15
CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of
the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to
an Action Seeking Damages for the Allegedly Negligent Approval (by the
Town) of a Defective Septic System
Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved
the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for
negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and
the statute starts running upon discovery of the injury. The Fourth Department determined CPLR 214-c did not
apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”
CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal
injury or injury to property caused by the latent effects of exposure to any substance or combination of
substances, in any form, upon or within the body or upon or within property must be commenced shall be
computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of
reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .
Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they
seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is
inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that
it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs
merely allege that the septic system was defective and that defendants failed to identify the defects during their
inspections. We thus conclude that the court properly determined that the causes of action against the moving
defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15
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Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether
He Had Constructive Notice of the Presence of Lead Paint
In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his
burden of demonstrating he did not have constructive notice of the presence of lead paint:
Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint
condition, plaintiff may establish that defendant 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” (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a
young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining
Chapman factors… . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15
Criteria for Liability for Lead Paint Exposure Described
Reversing Supreme Court, the Second Department determined defendants in a lead paint case failed to
demonstrate they did not have notice of the dangerous condition. The court explained the relevant criteria:
Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe
condition” … . “[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon
the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for
such a period of time that, in the exercise of reasonable care, it should have been corrected” … . Constructive
notice of a hazardous lead-based paint condition may be established by proof “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” … . Greene v Mullen, 2015 NY Slip Op 02729, 2nd Dept 4-1-15
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Plaintiff’s Motion to Appoint a Temporary Administrator after
Defendant’s Death Properly Denied—Relevant Law Explained
In affirming the denial of plaintiff’s motion to appoint a temporary administrator after the defendant in a lead-
paint action had died, the Second Department explained the relevant law:
“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order
substitution of the proper parties” (CPLR 1015[a]…). “A motion for substitution may be made by the successors
or representatives of a party or by any party” (CPLR 1021…). “Generally, the death of a party divests a court of
jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal
representative for the decedent” … .
In most instances a personal representative appointed by the Surrogate’s Court should be substituted in the action
to represent the decedent’s estate … . However, in the event no such representative exists, an appropriate
appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent
… . Indeed, “[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary
administrator, and may do so to avoid delay and prejudice in a pending action” … . The determination of whether
to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme
Court, and will not be disturbed by this Court so long as the determination does not constitute an improvident
exercise of discretion … .
Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the
plaintiff’s motion, inter alia, to appoint a temporary administrator (see CPLR 1015[a]…). Although in most
instances the personal representative of the decedent’s estate should be substituted, here, the plaintiff failed to
demonstrate what steps she had taken to secure the appointment of a personal representative in the appropriate
Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible … . Furthermore,
the plaintiff did not contend that this action, which is based on events occurring nearly 20 years ago, was trial-
ready … . Under the circumstances presented here, the plaintiff failed to adequately demonstrate why the
appointment of a temporary administrator was needed to avoid undue delay and prejudice. Lambert v Estren,
2015 NY Slip Op 02454, 2nd Dept 3-25-15
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Successive Tenants of Same Apartment Limited to a Single Policy Limit
Re: Recovery for Lead Paint Exposure
The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the children in
two families who were successive tenants of the same apartment were restricted to recovery for exposure to lead
paint to a single policy limit, and not multiple policy limits based upon annual policy renewals. The two families’
recoveries were limited to the single $500,000 policy limit:
In September 1991, Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-
family house in Rochester. The policy was renewed annually for the years beginning September 1992 and
September 1993. It stated on the declarations page a $500,000 limit for “each occurrence,” and contained the
following noncumulation clause:
“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total
liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not
exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one
accidental loss or from continuous or repeated exposure to the same general conditions is considered the result
of one accidental loss.”
Felicia Young and her children lived in one of the two apartments in the house from November 1992 until
September 1993. In July 1993, the Department of Health notified the landlord that one of the children had been
found to have an elevated blood lead level and that several areas in the apartment were in violation of State
regulations governing lead paint. The Department listed the violations and directed the landlord to correct them.
The landlord made some repairs, and the Department advised him in August 1993 that the violations “have been
corrected.”
After the Young family moved out of the apartment in September 1993, Lorenzo Patterson, Sr. and Qyashitee
Davis moved in with their two children. Again a child was found to have an elevated blood lead level, and the
Department of Health sent another letter saying that violations had been found and instructing the landlord to
correct them. (This letter was sent in December 1994, but the parties seem to assume that the elevated readings
resulted at least in part from events on or before September 29, 1994, the last day of Allstate’s coverage.) * * *
Young’s children and Nesmith’s grandchildren were exposed to the same hazard, lead paint, in the same
apartment. Perhaps they were not exposed to exactly the same conditions; but to say that the “general conditions”
were not the same would deprive the word “general” of all meaning. Nesmith argues that, because the landlord
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made an effort to correct the problem after Young’s children were exposed and before Nesmith’s grandchildren
moved in, the “conditions” that injured her grandchildren must have been new ones. But she makes no claim,
and the record provides no basis for inferring, that a new lead paint hazard had been introduced into the
apartment. The only possible conclusion from this record is that the landlord’s remedial efforts were not wholly
successful, and that the same general conditions — the presence of lead paint that endangered children’s health
— continued to exist. Because Young’s children and Nesmith’s grandchildren were injured by exposure to the
same general conditions their injuries were part of a single “accidental loss,” and only one policy limit is
available to the two families. Nesmith v Allstate Ins Co, 2014 NY Slip Op 08217, CtApp 11-25-14
In a Lead-Paint-Injury Case, Non-party Medical Records Not
Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic
Records Should Be Submitted for In Camera Review–Mother Cannot Be
Compelled to Submit to an IQ Test
The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury
case. The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and
sought to compel the mother to undergo an IQ test. The Third Department held that the non-party medical
records were not discoverable (except for the mother’s records during pregnancy), the non-party academic
records should be submitted to the court for in camera review, and the mother should not be compelled to undergo
an IQ test:
A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the
privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-
patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A
plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at
issue, but nonparties are not subject to having their medical histories made public merely because a relative
commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege,
Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the
mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already
provided an authorization for those records … .
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Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted
above, indicating that those records are relevant and necessary to determine whether other factors caused
plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably
balanced defendants’ need for them and their possible relevance against the burden to these nonparties from
disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s
academic records should similarly be submitted to the court for review and redaction of any privileged material.
…
Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a
test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s
condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal
nature of the information sought and the potential delay due to myriad collateral issues, defendants should not
be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op
008101, 3rd Dept 11-20-14
Summary Judgment Properly Granted to Property Owner in Lead-Paint-
Injury Case
The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury
case. There was no showing defendant had notice of the presence of lead paint hazard or that defendant was
negligent in abating the lead paint hazard:
“In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had
actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to
do so” … . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had
actual or constructive notice … . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14
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County Water Authority Had Standing to Bring Action Based Upon the
Chemical Contamination of Its Wells—CPLR 214-c Governs Actions
Based Upon Contamination—Action Was Untimely
The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk
County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action
against defendants alleging contamination of wells caused by chemicals (PCE and TCE). However, the court
determined the action was barred as untimely by CPLR 214-c. In the course of the opinion, the court explained
what the “two-injury” rule is in the context of a continuing wrong. The court determined that CPLR 214-c was
designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases. In addition,
the court explained the difference between latent and patent injuries with respect to CPLR 214-c:
Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of
the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions
… .
We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where
the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE).
The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL
may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury
cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since
contamination below that level could result in some injury, such as increased monitoring costs … . It is
undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even
at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has
suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *
CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims
accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest
itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover
damages for injuries to person or property “caused by the latent effects of exposure to any substance or
combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]).
The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date
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when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff,
whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon
an objective level of awareness of the dangers and consequences of the particular substance, the injured party
discovers the primary condition on which the claim is based’” … . Suffolk County Water Auth v Dow Chem
Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14
Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure
Case—No Constructive Notice
The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee
landlord in a lead-paint exposure case. The landlord had never seen the property:
Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as
tenants by the entirety. Defendant’s wife died in 2004. Defendant testified at his deposition that his participation
in the acquisition of the property was as an accommodation to the financial situation of his wife’s son and her
nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner
“on paper.” Defendant never saw the property, never went there, never received any rent, did not know that a
child resided there and never received any correspondence related thereto. Defendant did not execute any lease
agreements with respect to the property. “To 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” … . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14
Plaintiffs in Lead-Paint Exposure Cases Are Not Required to Hire an
Expert to Link Injuries to Lead-Paint Exposure at the CPLR 3121 (a)
Discovery Stage—However, Plaintiffs Must Provide Medical Reports
Which Include a “Recital of the Injuries and Conditions as to which
Testimony Will Be Offered at the Trial”
The Court of Appeals, in a full-fledged opinion by Judge Lippman, reversed the appellate division and
determined the trial judge abused his discretion in the discovery phase of a lead-paint exposure case. The trial
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judge ordered the plaintiffs “to produce, prior to the defense medical examinations, medical reports detailing a
diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to
plaintiffs' exposure to lead-based paint.”
CPLR 3121 (a) provides that when a party's mental or physical condition is in issue, any other party may serve
on the party whose condition is in controversy notice “to submit to a physical, mental or blood examination by
a designated physician.” A noticed party then is obligated under 22 NYCRR 202.17 (b)(1) to deliver:
“copies of the medical reports of those medical providers who have previously treated or examined the party
seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered
at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial,
including a description of the injuries, a diagnosis and a prognosis.”
In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the
doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.
This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs
allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical
evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged
injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).
Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who
have “previously treated or examined” them. They argue that they are not required to document or create medical
evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to
hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree.
Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR
202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits.
Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor.
Plaintiffs therefore need only produce reports from medical providers who have “previously treated or
examined” them.
To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently
exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and
examining medical providers — the reports “shall include a recital of the injuries and conditions as to which
testimony will be offered at the trial” (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot
avoid disclosure simply because their treating or examining medical providers have not drafted any reports
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within the meaning of rule 202.17 (b) (1) … . If plaintiffs' medical reports do not contain the information required
by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)…
. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the
rule (see 22 NYCRR 202.17 [j]). Hamilton v Miller, 2014 NY Slip Op 04230, CtApp 6-12-14
Question of Fact About Property Owner’s Constructive Notice of Lead
Paint/Tenant by the Entirety Could Be Vicariously Liable
The First Department determined questions of fact had been raised about whether defendant property owner,
Robert Dvorak, had constructive notice of lead paint on the premises. The court noted that the complaint should
not have been dismissed against Diane Dvorak who also owned the property as a tenant by the entirety:
The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had
constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered
the premises, made repairs, knew that the building was constructed before the banning of lead-based interior
paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young
children, and knew that a young child lived in the house …. .The motion court should not have granted summary
judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held
vicariously liable for his actions toward the property… . Rivera v Neighborhood Partnership Hous Dev Fund Co
Inc, 2014 NY Slip Op 02873, 1st Dept 3-29-14
Corporate Officer Not Liable in Lead Paint Exposure Case Under
“Commission of a Tort” Doctrine for Nonfeasance/No Evidence of
Malfeasance or Misfeasance
The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead
paint exposure case. The court explained when the “commission of a tort” doctrine applies to corporate officers:
“The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for
misfeasance or malfeasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate
officer for nonfeasance, i.e., a failure to act” … . Such misfeasance may include exacerbating a hazardous lead
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paint condition by negligently attempting to correct it … . Here, defendant met his initial burden by presenting
“evidence that, if uncontroverted, would have established that [he] did not personally participate in malfeasance
or misfeasance constituting an affirmative tortious act” … . Plaintiff failed to raise an issue of fact in response,
inasmuch as he submitted no evidence that defendant affirmatively created the dangerous lead condition at the
property or did anything to make it worse; at most, defendant merely failed to remedy the condition. We thus
conclude that he cannot be held individually liable to plaintiff in this action. Lloyd v Moore…, 200, 4th Dept 3-
28-14
Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning
Case/Notice Criteria Explained
In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion
to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or
negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics
argument should be rejected. In addition the Fourth Department explained the notice criteria in lead-paint cases:
We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to
“preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics
alternative and/or negating cause[s]” must be dismissed. “ ‘[A]n evidentiary ruling, even when made in advance
of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by
permission’ ”… .
[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family
history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay. I
acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a
conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose
here. To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions
at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a
eugenics argument, cannot be countenanced and is something I categorically reject.
[With respect to notice, the Fourth Department explained:] . “It is well settled that in order for a landlord to be
held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that
the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of
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reasonable care, it should have been corrected” … . Under the circumstances of this case, we conclude that there
is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment
“for such a period of time that, in the exercise of reasonable care, it should have been corrected” … With respect
to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that
constructive notice of a hazardous, lead-based paint condition may be established by proof “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 leadbased 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.” Heyward v Shanne, 1358, 4th Dept 2-7-14
No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases
The Third Department determined summary judgment was properly granted to defendants in a lead-paint
exposure case. Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling
paint in the apartment:
To raise a triable issue of constructive notice, plaintiff was required to show “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.
Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that
paint was peeling in the apartment. Cunningham v Keehfus, 516733, 3rd Dept 12-26-13
The Third Department affirmed the same result in another lead-paint exposure case:
Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in
the basement apartment, had the right to enter the apartment to make repairs, and did so. However, he testified
that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember
peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the
building before he purchased it. This testimony was sufficient to establish on a prima facie basis that defendant
did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish
triable issues of fact… .
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…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead
problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were
acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his
education and reading skills were limited – was sophisticated in the ownership and maintenance of rental
properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues …
Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had
constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd
Dept 12-26-13
Numerous Core Issues Discussed in Complicated Case Stemming from
Mold in a Complex of Apartments Which Necessitated Termination of All
the Leases
In perhaps the most complicated decision this writer has ever read, the Second Department reversed many of
Supreme Court’s rulings and sorted out the defense and indemnification responsibilities for an astounding array
of insurance companies. The lawsuits arose from the intrusion of water and mold into a complex of rental
apartments causing the termination of all the leases. The general contractor and a large number of subcontractors
all had insurance policies issued by many different companies. Among the issues addressed: (1) “[C]ontract
language that merely requires the purchase of insurance will not be read as also requiring that a contracting party
be named as an additional insured”…; (2) Whether damage from water intrusion and mold is an “occurrence”
within the meaning of the policy-language; (3) Whether the law of the insured’s domicile should apply; (4) The
use of extrinsic evidence to determine an insurer’s duty to defend; and (5) Disclaimer based upon late
notice. QBE Ins Corp v Adjo Contr Corp, 2013 NY Slip Op 08238, 2nd Dept 12-11-13
Proof of Normal Notification Procedure Sufficient to Demonstrate
Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy
Over a two-justice dissent, the Fourth Department determined defendant (Donnelly) was notified of an
amendment to his insurance policy which disclaimed coverage for injury related to the presence of lead paint
(and therefore plaintiff-insurer was not obligated to defend or indemnify defendant in a lead-paint-injury
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case). The court also determined that the lead-paint-injury exclusion did not violate public policy. With respect
to the proof defendant was notified of the amendment, the court deemed evidence of the usual notification
procedure sufficient:
…[W]e conclude that the documents established as a matter of law that the lead exclusion was properly added
to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not
submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall
receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure
designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that
Donnelly received the notice … . …[T]he evidence submitted by plaintiff established that the “office practice
[was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly
addressed and mailed” … . Specifically, the evidence established the procedure used by plaintiff for generating
notices whenever an insurance policy was amended, and the documentary evidence established that a notice was
generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition,
plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice
was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and
the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located
adjacent to plaintiff’s parking lot. Preferred Mutual Insurance Company v Donnelly…, 857, 4th Dept 11-8-13
Disclosure Appropriate in Lead Paint Case, Physician-Patient Privilege
Waived
In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not
entitled to full disclosure of records based on the physician-patient privilege. The Fourth Department determined
the privilege had been waived:
In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any
related privileges with respect to the records sought, and that those records may be material and necessary to the
defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this
action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential
information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433,
1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek
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authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent
that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera
review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13
“Negligent Ownership and Maintenance” vs “Negligent Abatement”
Causes of Action in Lead-Paint Case
In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment
on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to
summary judgment on the cause of action alleging negligent abatement of the hazard:
To 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” … .Defendant
met his burden of establishing that he had no actual or constructive notice of the hazardous lead paint condition
prior to an inspection conducted by the county department of health, and plaintiff failed to raise a triable issue
of fact… .. Contrary to defendant’s contention, however, the court properly denied that part of his cross motion
seeking summary judgment dismissing the second cause of action, which alleges negligent abatement of the
lead-based paint hazard. Defendant failed to establish his prima facie entitlement to judgment as a matter of law
with respect to that cause of action. Pagan v Rafter, 210, 4th Dept, 6-14-13
Past Psychological Records Deemed Relevant in Lead-Paint Injury Case
Where Psychological Injury Alleged
In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury
stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated
with exposure to lead paint. The Court ordered an in camera inspection of the records to weed out irrelevant
information. Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13
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Only Sellers’, Not Buyers’, Agent Can Be Liable for Failure to Disclose
Lead Paint Dangers
In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act
(RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted
that only seller’s agents, not buyer’s agents, can be held liable under the act:
The statutory language of the RLPHRA “is unambiguous with regard to the liability of real estate agents; only
seller’s agents are liable” for the failure to ensure compliance with its provisions… . Contrary to the plaintiffs’
contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to
impose a duty on an agent or representative of a buyer… . Accordingly, the Supreme Court should have granted
the …defendants’ motion to dismiss the complaint insofar as asserted against them. Felix v Thomas R
Stachecki Gen Contr, LLC, 2013 NY Slip Op 03966, 2nd Dept, 6-5-13
Notice Element of Lead-Paint Injury Cause of Action Explained
In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained
the “notice” elements as follows:
With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting
from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or
constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it
should have been corrected” …. In this context, constructive notice may be demonstrated by a showing
“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” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13
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“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-
Paint Injury Case Okay/But Not Okay for Non-Party Educators
In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to
preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-
called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers
about the plaintiff’s injuries. However, the Fourth Department did not agree with Supreme Court’s grant of
the same motion with respect to non-party educators (two justices dissented on that issue):
In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard
to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does
not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend
Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers.
The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply
with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an
adverse party’s treating physician. Defendant made no showing that the discovery devices available under
the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the
necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13
Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to
Lead Paint or Be Precluded from Introducing Such Evidence
In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries
to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants
moved to preclude proof of plaintiff’s injuries in the absence of such medical reports. Supreme Court granted
the defendant’s motion and the Fourth Department affirmed. In addition, the Fourth Department noted that
Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard
Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because
plaintiff was not “relying” on the statute. Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13
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Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of
Presence of Lead Paint
Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint
in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified
the dismissal of the lead-paint-injury complaint. The Third Department explained:
“[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises,
the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period
of time that, in the exercise of reasonable care, it should have been corrected” ….To establish constructive
notice in the context of a lead paint case, the plaintiff must show “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” … . Hines
v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13
In Lead Paint Exposure Case, Court’s Order to Provide Medical Report
Linking Injuries to Exposure Before Depositions Upheld
In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of
discovery, to produce a medical report linking the injuries to lead exposure before depositions. The Fourth
Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the
very outset of the litigation:
Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion
in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by
plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are
conducted. As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological,
psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff
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disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury
or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s
mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual
injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused
by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood]
lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that
CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not
preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59,
4th Dept, 4-26-13
Question of Fact Raised About Owner’s Knowledge of Presence of Lead
Paint
The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the
apartment had constructive notice of the presence of lead paint:
The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had
constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified
that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or
chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted
himself as to whether he knew that a child lived in the apartment. Regarding the other [Chapman v Silber (97
NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make
repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses
like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice …
. Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13
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Owner/Officer of Company Can Be Personally Liable for Toxic Emissions
Released by Company.
Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions
released by defendant Tonawanda Coke Corporation. An owner and officer of Tonawanda Coke (Crane) moved
to dismiss the cause of action suing him in an individual capacity. In affirming the denial of that motion, the
Fourth Department wrote:
Although “[a] corporate officer is not held liable for the negligence of the corporation merely because of his
official relationship[,]” that officer will be held liable if it is established “that the officer was a participant in the
wrongful conduct” … .Plaintiffs alleged in the first amended complaint that Crane was or should have been
aware of the relevant environmental regulations, was ultimately responsible for reporting benzene emissions to
the Environmental Protection Agency, and personally supervised and exercised control over Tonawanda Coke’s
operations … .Thus, plaintiffs have alleged that Crane actively participated in the wrongful conduct by approving
the policies that allegedly caused the environmental contamination … . Abbot v Tonawanda Coke Corporation,
et al, 155, CA 12-01384, Fourth Dept. 3-15-13
Single Policy Limit Held to Apply to Successive Tenants in Lead-Paint-
Tainted Apartment.
In a full-fledged opinion by Justice Smith, the Fourth Department discussed the liability-limits of an insurance
carrier for injuries caused to children by lead paint in the insured apartment. The policy, which had a $500,000
limit, included the following sentence: “All bodily injury and property damage resulting from one accidental
loss or from continuous or repeated exposure to the same general conditions is considered the result of one
accidental loss.” Children in one family who lived in the apartment suffered injury from lead paint and the
carrier paid out $350,000. Subsequently children in another family who moved into the same apartment suffered
injury from lead paint. The question before the Court was whether the liability to the second family was capped
at $150,000 because the total liability of the carrier could not exceed $500,000, or whether the injury to the
second family triggered another $500,000 in policy coverage. The Fourth Department determined the carrier
was liable for a total of $500,000 for the injuries to both families and the second family could recover no more
than $150,000. Nesmith, et al v Allstate Insurance Company, 1252, CA 12-00182 Fourth Dept. 2-1-13
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