Opinion
20049-2003.
Decided on August 6, 2007.
ORDERED that the motions by the defendant H2M Labs Inc. (hereinafter H2M Labs) pursuant to CPLR 3212 as to Causes of Action Two through Ten are determined herein, and it is further
ORDERED, that the motions by the defendant H2M Labs Inc. to dismiss all cross-claims are determined herein, and it is further
ORDERED that the motions by the defendant Alexander Wall Corp. (hereinafter Alexander Wall) pursuant to CPLR § 3212 as to Causes of Action Two through Ten are determined herein, and it is further
ORDERED that the motions by the defendant Alexander Wall for default against the second third party defendant Meticulous On Site Soot Service are determined herein, and it is further
ORDERED, that the motions by the defendant Citizens Insurance Company (hereinafter Citizens) pursuant to CPLR § 3212 for as to Causes of Action One through Ten and all cross-claims are determined herein, and it is further
ORDERED, that the motion to preclude the admissibility of the alleged diagnosis known as Multiple Chemical Sensitivity Syndrom (hereinafter MCSS) is granted to the extent that the Court will conduct a "Frye" hearing ( Frye v United States, 293 F. 1013; People v Wesley, 83 NY2d 417), and it is further
ORDERED, that the plaintiffs' motion to strike the answer of the defendant Alexander Wall pursuant to CPLR § 3126 is granted to the extent that the Court will hold a hearing to determine the issue of whether and to what extent a sanction should be ordered, and it is further,
ORDERED, that at the Compliance Conference presently scheduled for August 7, 2007, the Court will determine the appropriate date for conducting both aforementioned hearings.
Wilkofsky Friedman, Karel Cummins, Attorneys for Plaintiffs, New York, New York.
Shapiro, Beilly, Rosenberg, Aronowitz, Levy Fox, LLP, Attorneys for Deft Citizens Insurance, New York, New York.
Milber, Makris, Plousadis Seiden, LLP, Attorneys for Deft Alexander Wall Corp., Woodbury, New York.
L'Abbate, Balkan, Colavita Contini, Attorneys for Deft H2M Labs Inc. and Holzmacher, McLendon Murrell, Garden City, New York.
Lord, Bissel Brook, LLP, Attorneys for Deft RTP Environmental, New York, New York
Plaintiffs commenced this action for personal injury and property damage allegedly caused by faulty remediation work and air testing following a residential fire. The premises were insured by a policy through defendant Citizens Insurance Company.
The plaintiffs allege a breach of the insurance contract against the defendant Citizens in the First Cause of Action. The Second through the Ninth Causes of Action are against all defendants for damages to property from the negligent use of inappropriate and harsh chemicals used in the fire remediation. The Tenth Cause of Action alleges fraud against all defendants.
The Plaintiffs are a family of five who resided in a single family home located at 250 Eastwood Avenue, Deer Park, New York. On August 10, 2002, a fire occurred at the residence requiring the evacuation of the family.
Upon the recommendation of the carrier of the insured's Homeowner's policy, defendant Citizens chose defendant Alexander Wall to conduct the clean-up and remediation of the premises. On August 13, 2002, Jim Cavo of defendant Alexander Wall and John Conlon of defendant Citizens (Hanover) conducted a walk-through of the premises and recommended cleaning the walls, ceiling and floors.
Between August 13th and August 14th, 2002, the residence was cleaned by the defendant Alexander Wall with certain chemicals. This included cleaning the walls, ceiling and other items that might retain smoke odor. After this first clean up, the plaintiffs conducted a walk-through of the home with John Conlon of Citizens and Jim Cavo of Alexander Wall and noticed an unpleasant smell.
Predicated on the continued presence of the smell, ozone generators were placed in the home to alleviate the odor. There is testimonial evidence submitted that John Conlon (Citizens) ordered Alexander Wall to install these ozone generators (Alexander Wall, Exhibit F pages 40-41), a fact which Mr. Conlon denies. There is further evidence that these generators were placed in position in the home by Citizens and Alexander Wall. The plaintiffs submit an affidavit from an expert indicating that the use of ozone generators may be contraindicated in situations such as the case at bar. After approximately four days, the plaintiffs met with Conlon and Cavo and conducted an additional inspection of the house and noticed the continuing presence of the smell. At this point, both Conlon and Cavo (Citizens and Alexander Wall) agreed to send in a new crew to wash down the walls using different cleaning products and an iodizing machine to further alleviate the odor. After this clean-up, the plaintiffs still complained of odor in the home. Concerned with the air quality, Jim Boos of Citizens contacted H2M Labs on August 20, 2002 for the purpose of conducting air quality tests.
THE PARTICIPATION OF H2M LABS
H2M Labs performed certain air quality tests, the results of which were filed in a written report dated September 3, 2002. After the issuance of the report, the plaintiffs conducted another walk through of their residence and still noticed the smell. Delora O'Brien stated it felt like knives in her nostrils. The plaintiffs allege that the report was never tendered to them and that they were told orally that the air quality was nothing to worry about. The report itself states that all levels of volatile compounds were within the guidelines issued by the World Health Organization (hereinafter WHO). A review of the report reveals that the levels of Toluene in the home were double the WHO guidelines. There is evidence adduced that the tester employed by H2M Labs for the taking of the samples was incompetent. (The tester admitted that he had never done an air quality testing before [ see, Alexander Wall, Exhibit F]). Ken Skipta, principal of RTP Environmental (hereinafter RTP), a former third-party defendant in the case, testified that an air collector should be"someone who has physically performer the test before" . . . and that it requires a trained individual to be aware of the problems you can run into during sampling ( see, Plaintiffs' Exhibit 2, the second Skipta deposition, pages 141, 142). On October 18, 2002, Mr. Charles Erlanger of H2M Labs sent a letter to ?? representing that the volatile organic compounds tested were within normal limits ??? the EPA and NIOSH as well as WHO. ???? ( see, Alexander Wall, Exhibit P, pages 144-147). Gary Miller, Charles Erlanger's superior at H2M Labs testified "the tabulated results (in the report) did not seem to correlate with the laboratory reports" ( see, Alexander Wall, Exhibit Q, page 29). He further testified that Mr. Erlanger under reported the amount of Toluene, so that it was 44 times ??? higher than reported and the chemical carcinogens, benzene and styrene, were each under-calculated by a factor of 3 ( see, Alexander Wall, Exhibit Q, pages 104 and 105). The plaintiffs, therefore, allege that the misrepresentations as to the air quality induced them to believe that their home was safe for occupation. Based on these representations, Delora O'Brien continued to enter the home for various purposes between September 2002 and April 2003.
Upon noticing the continuing smell during their walk through of the premises immediately subsequent to the issuance of the H2M Lab report of September 3, 2002, a company called RTP Environmental Association was retained to conduct its own evaluation of the air samples. Although RTP found various inconsistencies in the H2M Lab report, it confirmed that the air quality was still within New York State and Department of Environmental Conservation (hereinafter DEC) guidelines. In October 2002, the plaintiffs contacted RTP and informed RTP that there was still an unpleasant odor in the residence. RTP then devised a course of action which included heating and ventilating the home for several days and placing pans of hydrochloride in the house in an attempt to absorb and eliminate the remaining odor. RTP then conducted further tests and issued a report on March21, 2003 indicating that all volatile organic compounds in the residence were within acceptable guidelines. The plaintiffs moved back into their house on a permanent basis in April 2003. They remained until June 2003 when they moved out, alleging that the problem continued to persist.
H2M Labs seeks relief pursuant to CPLR § 3212. In support of the relief requested H2M Labs takes the position that they had no involvement with the remediation or clean-up process, which is the substantive basis of the plaintiffs' negligence claims. They also argue that the fraud cause of action must be dismissed as H2M Lab did not have knowledge that the September 3, 2002 report which they authored contained miscalculations, that subsequent retesting demonstrated that the air quality was, in fact, within acceptable guidelines, and that the plaintiffs' could not have relied on them in that they did not move back into their house until April of 2003. They also argue that New York does not recognize a cause of action for Multiple Chemical Sensitivity Syndrome.
There is evidence that H2M Lab participated in the clean-up process by participating in the discussion and ultimate recommendation of the use of a negative air machine ( see, Alexander Wall, Exhibit K, pages 75-80), using low VOC paints, painting the upstairs to "get the smell out" ( see, Alexander Wall, Exhibit O, page 63) and re-cleaning the contents using a HEPA filter. The plaintiffs' submit the affidavit of L. Brumley, a disaster reclamation expert who opines that the use of a negative air machine can cause indiscriminate contamination of a clean area unless a HEPA filter is used ( see, Alexander Wall, Exhibit K, page 76, lines 8-24). Although there is an apparent concurrence that contamination will not occur if a "HEPA" filter is used in conjunction with the negative air machine, there is no evidence from which the Court can divine that such a filter was used in the instant matter. There is evidence that a negative air machines are not ordinarily used in a residential setting.
The discussions and recommendations that H2M Lab participated in that low volatile organic compound paints be used, painting the upstairs to "help get the smell out," cleaning the duct work, as well as the recommendation that a negative air machine be used, demonstrate that questions of fact exist as to whether H2M Lab merely collected air samples or were active participants in the remediation process.
It is well settled that the remedy of summary judgment is a drastic one and there is considerable reluctance to grant summary judgment in negligence actions ( Andre v Pomeroy, 35 NY2d 361). Summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact or where an issue of fact is even arguable since it deprives a party of his day in court ( see also, Henderson v City of New York, 178 AD2d 129).
Issue finding rather than issue determination is the key to this procedure ( Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395).
As stated supra, one is subject to liability if he "does a tortious act in concert with the other or pursuant to a common design with him, or knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself." (Restatement of Law, Second, Torts, American Law Institute).
Thus, there are questions of fact raised as to whether H2M Labs participated in the remediation process and/or whether they aided their co-defendants as part of a joint process in remediating the plaintiffs' premises, and whether this process, including the alleged suppression of the test results contained in the report of September 3, 2002, were a substantial factor in causing injury.
Accordingly, the Court denies the relief requested by defendant H2M Labs pursuant to CPLR 3212 as to Causes of Action Two through Nine. The Court also denies the motion seeking dismissal of all cross-claims.
THE FRAUD CAUSE OF ACTION AGAINST ALL DEFENDANTS
H2M Labs concedes that the report of September 3, 2002 contains errors. They argue that, notwithstanding the errors, that the evidence indicates that VOC's (volatile organic compounds) within the home were within acceptable guidelines. The guidelines referred to throughout the proof submitted are the World Health Organization (WHO), the Environmental Protection Agency (EPA), the Occupation Safety and Health Administration (OSHA), the Department of Environmental Conservation (DEC) and National Institute of Occupational Safety (NIOSH). The submissions by the defendant do not make clear which guidelines are applicable to residential dwellings. However, there is evidence that certain VOC's (Benzene and Toluene) exceeded available workplace guidelines and that residential guidelines would be more strict than those applicable to the workplace. There is deposition testimony from Delora O'Brien that Charles Erlanger from defendant H2M Lab admitted to her in the driveway of her house in September (2002) following the fire in August, (year) that there was Benzene in her house and that it was considered a carcinogen. This discussion was in the presence of John Conlon of Citizens and Gary Alexander of Alexander Wall. Although Mr. Erlanger had a copy of the report, it is alleged that he refused to share the results with the plaintiff. All these parties participated in a general discussion of the air quality in the house which included a representation that the air quality was safe when, it is alleged, the report provided no such justification. There is EBT testimony by Mr. Erlanger where he admits that he knew the Toluene levels exceeded the WHO guidelines before he wrote a letter dated October 18, 2002 attesting to the fact the all VOC's were within normal limits. Delora O'Brien submits an affidavit alleging she entered the premises between 6 and 12 times between September, 2002 and April 2003 that Jim Cavo and Gary Alexander both told the air quality was safe and that she would not have entered the house had she known the true condition of the chemical compounds in the home.
The deposition of Gary Alexander of Alexander Wall demonstrates that the defendant Alexander Wall maintains Material Safety Data Sheets (hereinafter MSDS) in their warehouse or they are obtained from the manufacturer. These sheets are required to be kept, pursuant to regulation from OSHA, by any company who uses ozone generating machines, such as this defendant.
In keeping such reports, the defendant is arguably aware of the properties, and the hazards, associated with chemicals and cleaning solutions used in any given remediation. Review of the MSDS sheets reveals warnings that exposure to ozone can cause" inflammation of the upper respiratory tract." Ammonium Hydroxide, according to the MSDS sheets, can cause pneumonitis or pulmonary edema, both serious respiratory conditions. John Conlon of Citizens admitted that he saw a chemical on the premises of the plaintiffs in a container with a skull and crossbones. Alexander Wall, throughout the pendency of this case, maintains that they are ignorant of the exact chemical compounds used in the instant case notwithstanding the fact that OSHA requires them to maintain the MSDS sheets on all compounds used in their fire remediation work.
To prove fraud in New York "the plaintiff must prove a misrepresentation or material omission of fact which was false and was known to be false by the defendant, made for the purpose of inducing the other to rely upon it, and the justifiable reliance of the other party on the misrepresentation or material omission and injury ( Lama Holding Comp. v Smith Barney Inc., 88 NY2d 413).
In this case, the plaintiff essentially asserts that all defendants suppressed and ignored the true H2M Labs test results and that all defendants "jointly conspired to falsify their test results so as to make it appear that the premises was safe for habitation." New York does not recognize conspiracy to commit a tort as an independent cause of action ( Ward v. City of New York, 2005 WL 301160). New York does recognized a cause of action for fraud based on concealment, where the party to be charged has superior knowledge or means of knowledge, such that the transaction without disclosure is rendered inherently unfair (see Miele v American Tobacco Comp. 2 AD3d 799; Stevenson Equip. v Chemig Constr. Corp., 170 AD2d 769; 60A NYJur2d, Fraud and Deceit Sec. 98). Concealment with the same intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact ( Nasaba Corp. v Harfred Realty Corp., 287 NY 290).
Parties are acting in concert when they act in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. The agreement need not be expressed in words and may be implied and understood to exist from the conduct itself. (Restatement, supra).
Based on the above, the Court concludes that there are questions of fact raised with respect to the Tenth Cause of Action and accordingly the request for relief under CPLR § 3212 by all defendants is denied.
MULTIPLE CHEMICAL SENSITIVITY SYNDROME
The defendant H2M Labs and defendant Alexander Wall allege that the plaintiffs cannot seek damages for MCSS as such injury is not recognized by New York Courts. In support, the defendant offers the affidavit of Dr. William Head, a neurology and psychiatric expert who states, in substance, that MCSS is a theory and is not a diagnosis generally accepted in the relevant scientific community. In opposition, the plaintiff submits the affidavit of Dr. Marvin Boris, a specialist in allergy and immunology who avers that he has been diagnosing and treating MCSS for over 35 years and that MCSS is not a theory but is an appropriate diagnosis in certain cases such as this one and is generally accepted in the relevant scientific community, the foundation required in New York courts under the Frye standard ( Frye v United States, 293 F. 1013; People v Wesley, 83 NY2d 417). The defendants submit information suggesting that MCSS has not gained acceptance in the appropriate medical communities such as the AMA, American College of Physicians, the American Lung Association ( see, Reply Affirmation Alexander Wall).
The Court concludes that the defendants have submitted sufficient facts to justify a Frye hearing in order to determine the admissibility of MCSS in the instant case.
MOTIONS OF DEFENDANT ALEXANDER WALL
The defendant Alexander Wall seeks dismissal, by way of relief under CPLR § 3212, of the fraud cause of action and the derivative claims on the grounds that New York does not recognize MCSS. They argue that since the substantive causes of action sounding in negligence have no basis, those claims that derive from them cannot stand ( Maddox v City of New York, 108 AD2d 42).
The continued viability of the loss of services causes of action may be affected after the Court makes its determination on the Frye issue.
As to the fraud cause of action, the defendant's motion under CPLR § 3212 is denied for reasons stated hereinabove. The adequacy of the pleading of the fraud cause of action has already been decided pursuant of the Order of the Hon. Robert Oliver dated March 15, 2005 and thus becomes the law of the case.
The defendant has moved for default against second third-party defendants Meticulous On Site Soot Service and Gloria's Cleaning. In the Reply Affirmation, the defendant withdrew the application as it pertains to Gloria's Cleaning and, therefore, that portion of the motion is marked withdrawn. The proper proof of service upon Meticulous On Site Soot Service and their failure to appear having been provided, the Court hereby grants the motion for default against that defendant.
MOTIONS BY CITIZENS INSURANCE COMPANY
Citizens Insurance Company moves for relief under CPLR § 3212. In support they submit the affidavit of John Conlon who is the property adjuster for the defendant. He avers, in substance, that he took no part in any remediation that was conducted. Such remediation was first completed by Alexander Wall as an independent contractor. The air quality tests were done by H2M Labs, also an independent contractor. Citizens claims, therefore, that liability cannot be imposed as employers are generally not liable for the negligence of independent contractors ( Kleeman v Rheingold, 81 NY2d 270; Broderick v Cauldwell-Wingate Co., 301 NY 182).
As noted above there is evidence that John Conlon of Citizens told Jim Cavo of Alexander Wall to bring in the ozone generators. The plaintiffs submit the MSDS acquired through discovery, that manifest at least some of the substances that were used in the instant clean-up. These substances are contraindicated in the presence of strong oxidizers, such as an ozone generating machine ( see, Affidavit, L. Brumley, Exhibit 1, Plaintiffs' Affidavit In Opposition). Mr. Conlon (Citizens) testified he had no knowledge of what substances were used in the clean up. Failure of Citizens to know the chemicals used before ordering use of ozone generators may constitute an independent act of negligence on their part. The affidavit of plaintiffs' expert states that such an approach would violate the standard of care required in fire remediation. Testimony by Ms. O'Brien was adduced that John Conlon requested Alexander Wall to remove the contents of the attic, take out the insulation and wash down all the rafters and put in new insulation suggesting some elements of control or supervision of the remediation work.
In opposition, the plaintiff argues that the nature of the remediation work is inherently dangerous, thus making the defendant vicariously liable and that the defendant broke its insurance contract with the plaintiff.
Generally, a party may not be cast in damages for the negligent acts or omissions of an independent contractor ( Rosenberg v Equitable Life Assurance Society, 79 NY2d 663; Gravelle v Norman, 75 NY2d 779, Prosser and Keeton, Torts Sec. 71 [5th edition], see also Restatement [second] of Torts Sec. 409 [1965]). The rationale is that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor ( Feliberty v Damon, 72 NY2d 112).
Despite this rule, a number of noteworthy exceptions have been created in our common law jurisprudence. In fact, it has been observed that the general rule "is now primarily important as a preamble to the catalog of its exceptions" ( Kleeman v Rheingold, supra, [ citing Pacific Fire Ins. Comp. v Kenny Boiler Man. Comp., 201 Minn 500] [general rule of nonliability applies only where no good reason can be found for departing from it]; Kleeman v Rheingold, supra [citing Restatement, Second, of Torts Sec. 409, comment b, at 370].
Campus v Brooklyn Union Gas Company ( 17 AD3d 500) is instructive on this legal issue. The case involved a pedestrian who was injured when he tripped and fell on a patch of asphalt covering an excavation on the walkway outside this house where a gas pipe had been installed by an installer hired by the company. The Court found that although the installer was an independent contractor there was evidence at the trial that the company was involved in the work of the company in that it made spot checks of the installer's work and provided some materials, and therefore whether or not vicarious liability could be imposed on the company was a question of fact for the jury.
Here, there is evidence submitted by plaintiffs that both John Conlon of defendant Citizens actually directed Jim Cavo of Alexander Wall to introduce ozone generators in the house and further ordered where they were to be placed. There is evidence that placement of an ozone generator in the plaintiffs' home after remediation efforts utilizing certain cleaning chemicals or solutions is contraindicated, as an ozone generator is an oxidizer.
Contrary to the assertion of defendant Citizens in their Memorandum of Law, the affidavit of John Conlon as well as other proof submitted clearly establishes that the defendant Alexander Wall was retained by the defendant Citizens and not the plaintiffs. There is also evidence that the aforementioned defendants jointly suggested a second cleaning crew and that they utilize new chemicals. In his report of September 9, 2002, ¶ 11, John Conlon states, "Instructed Alexander Wall to remove attic insulation and contents . . ." This statement may justify an inference of control that the employer is exerting over the independent contractor. Accordingly, there is sufficient evidence submitted that the employer herein (Citizens) may have exercised a degree of control over the independent contractor (Alexander Wall) to impose liability.
It has also been stated that "one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractors failure to take reasonable precautions against such danger (Restatement [Second] of Torts Sec. 427, comments a, b]). Whether the work is inherently dangerous is normally a question of fact to be determined by the jury ( Luksik v 27 Prospect Park West Tenants Corp ., 19 AD3d 557). Here, Citizens had employed Alexander Wall on numerous occasions in the past for fire remediation. The question of what Citizens knew, or should have known about the properties of the chemicals used in the process, particularly if the jury ultimately determines that they were actively involved in the placement of the ozone generating machines, is a question of fact.
Based on the evidence submitted, the Court cannot conclude as a matter of law that the work involved here by the independent contractor (use of potentially toxic chemicals for remediation in a residential dwelling) is not inherently dangerous.
Accordingly, the court finds that questions of fact have been raised by the proofs submitted. The defendant Citizens' request for relief under CPLR § 3212 as to Causes of Action Two through Nine (sounding in negligence against Citizens) are, therefore, denied.
Citizens also moves for summary judgment on the plaintiffs' cause of action seeking damages for breach of the insurance contract. Defendant argues that the policy in question does not include any coverage for damages for acts attributable to third parties. A review of the policy reveals that the contract neither includes or excludes such coverage. The policy does cover for direct physical loss caused by fire. Direct loss is equivalent to proximate cause ( Granchelli v Travelers Ins. Co., 167 AD2d 839). The question of proximate cause is ordinarily one for the trier of fact ( Massi's Greenhouses, Inc. v Farm Family Mutual Ins. Comp., 233 AD2d 844; Derdiarian v Felix Contr. Corp, 51 NY2d 308). The Court notes that the contract of insurance in question was drafted by the insurance company. The Court concludes, therefore, that the defendants request for relief under CPLR § 3212 on the breach of contract cause of action is denied.
The Court also denies the defendant's motion seeking dismissal of all cross-claims, as sufficient questions of fact have been raised as to the nature and scope of the liability of all co-defendants.
MOTION BY PLAINTIFF TO STRIKE PLEADING OF DEFENDANT ALEXANDER WALL
The plaintiff alleges that Alexander Wall has systematically violated the discovery process to justify the ultimate sanction of striking their pleading. To invoke this drastic remedy, the court must determine that the party's failure to comply with disclosure was the result of willful, deliberate, and contumacious conduct ( Emanuel v Broadway Mall Properties Inc., 293 AD2d 708; Poulas v. U-Haul Intl., 288 AD2d 202). A careful review of the pleadings herein causes the Court to conclude that a hearing will be required to conclude the factual and legal issues raised by the motion.
This constitutes the decision and order of the Court.