Opinion
2018–03719 Index No. 12119/15
11-18-2020
John S. DESERNIO, respondent, v. Todor ARDELEAN, etc., et al., appellants, et al., defendant.
Traflet & Fabian, New York, N.Y. (Stephen G. Traflet of counsel), for appellants. Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Deborah Ann Kramer of counsel), for respondent.
Traflet & Fabian, New York, N.Y. (Stephen G. Traflet of counsel), for appellants.
Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Deborah Ann Kramer of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Todor Ardelean and Mariola Ardelean appeal from an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered January 17, 2018. The order denied those defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained from exposure to toxic mold during his period of occupancy of a condominium unit owned by the defendants Todor Ardelean and Mariola Ardelean (hereinafter together the Ardeleans). The plaintiff resided in the condominium from April 2012 through July 2015. The plaintiff alleged that the mold was caused by two incidents of water intrusion, the first occurring as a result of Hurricane Sandy in October 2012, and the second resulting from a heavy rainstorm causing a sewer backup in April 2014. The Ardeleans moved for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff opposed the motion. By order entered January 17, 2018, the Supreme Court denied the motion. The Ardeleans appeal.
A plaintiff alleging injuries from a toxic chemical exposure must provide objective evidence that the exposure caused the injury (see Cubas v. Clifton & Classon Apt. Corp. , 82 A.D.3d 695, 696, 917 N.Y.S.2d 320 ; Parker v. Mobil Oil Corp. , 16 A.D.3d 648, 652, 793 N.Y.S.2d 434, affd 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 ). An expert opinion submitted on the issue of causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation), and that the plaintiff was exposed to sufficient levels of the toxin to cause the illness alleged (specific causation) (see Sean R. v. BMW of N. Am., LLC , 26 N.Y.3d 801, 808, 28 N.Y.S.3d 656, 48 N.E.3d 937 ; Cornell v. 360 W. 51st St. Realty, LLC , 22 N.Y.3d 762, 784, 986 N.Y.S.2d 389, 9 N.E.3d 884 ; Parker v. Mobil Oil Corp. , 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114, 1120–1121 ; Cubas v. Clifton & Classon Apt. Corp. , 82 A.D.3d at 696, 917 N.Y.S.2d 320 ). In moving for summary judgment dismissing the amended complaint insofar as asserted against them, the Ardeleans were required to demonstrate, prima facie, through expert evidence based on a scientifically-reliable methodology, that there was no causal link between the plaintiff's alleged injuries and his exposure to mold (see Cabral v. 570 W. Realty, LLC, 73 A.D.3d 674, 675, 900 N.Y.S.2d 373 ). Here, we agree with the Supreme Court's determination that the Ardeleans' submissions failed to eliminate all material issues of fact as to general and specific causation (see Stiso v. Berlin , 176 A.D.3d 888, 110 N.Y.S.3d 139 ; Kamel v. Mukhopady , 156 A.D.3d 688, 64 N.Y.S.3d 910 ; Cabral v. 570 W. Realty LLC , 73 A.D.3d at 676, 900 N.Y.S.2d 373 ).
"To hold a landlord liable for a hazardous condition upon its property, a plaintiff must show that the landlord either created the condition or had actual or constructive notice of its existence" ( Travers v. Charles H. Greenthal Mgt. Corp. , 66 A.D.3d 768, 768, 885 N.Y.S.2d 916 ; see Jackson v. City of New York , 55 A.D.3d 546, 547, 865 N.Y.S.2d 613 ). Here, the Ardeleans' own submissions failed to eliminate all material issues of fact as to actual and constructive notice (see Daitch v. Naman , 25 A.D.3d 458, 807 N.Y.S.2d 95 ).
Accordingly, we agree with the Supreme Court's determination denying the Ardeleans' motion for summary judgment dismissing the amended complaint insofar as asserted against them, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
AUSTIN, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur.