Mold Revisited

Mold in house

Despite an earlier court decision that has been widely interpreted as holding that landlords in New York (including cooperatives and condominiums) had no liability for alleged bodily injury from mold, the Appellate Division of the New York State Supreme Court for the First Department has issued a decision making clear that the issue remains very much in play.

In a memorandum in October of 2006 we advised our cooperative and condominium clients of a Supreme Court decision in the Fraser case[1] which found that then-current scientific evidence did not support a conclusion that mold or damp indoor environments cause illness.  That court had determined that the tenants/plaintiffs “failed to demonstrate that the community of allergists, immunologists, occupational and environmental health physicians and scientists accept their theory — that mold and/or damp indoor environments cause illness” and that there are no reliable standards for measuring mold or for determining what amount of mold is excessive.  The decision was affirmed by the Appellate Division for the First Department (which includes Manhattan and the Bronx), and lower courts subsequently used it as a basis for dismissing claims for mold-related illnesses based on the unacceptability of the scientific findings (although claims for property damage due to mold have continued to be permitted).

However, the Appellate Division for the First Department has just informed the lower courts that the Fraser decision only applied to that specific case, and that in other cases brought for mold-related illnesses, the court needs to make its own determination about the quality of the evidence presented.  The Appellate Division also stated that, in the case it was considering, the plaintiff’s expert evidence was sufficient to establish causation because the studies presented (even though they did not differ substantially from the studies presented in the Fraser case) “found a statistically significant relationship between mold and various respiratory maladies.”[2]  Although there was a dissenting opinion in the case to the effect that the scientific evidence did not meet the necessary evidentiary standard, the decision is binding in the First Department unless it is reversed on appeal.

This new Cornell decision marks a major change in the way Fraser had been applied and will permit claims for mold-related illnesses to survive dismissal, opening up the courts to occupants of cooperative and condominium buildings who bring claims that untreated mold in their apartments caused a variety of illnesses.  Now that a prospective plaintiff knows that his or her evidence concerning alleged illnesses from mold will not be summarily prohibited by the court, these claims for mold related illness will most likely increase. Boards and their managing agents must be even more vigilant in responding quickly and effectively to mold problems.

If you have mold complaints in your building, please contact us to discuss the effect of this decision.

[1] Fraser v. 301-52 Township Corp., Index # 113586/02, Decision and Order, Sept. 27, 2006, aff’d, 57 A.D.3d 416,  870 N.Y.S.2d 266 (1st Dep’t 2008), app. dismissed, 12 N.Y.3d 874, 909 N.E.2d 84, 881 N.Y.S.2d 391 (2009).

[2] Cornell v. 360 W. 51st St. Realty, LLC, 939 N.Y.S.2d 434 (1st Dep’t 2012).

 

This memorandum was initially issued by the cooperative/condominium practice group of Balber Pickard Maldonado & Van Der Tuin, PC which joined Smith, Gambrell & Russell, LLP on February 1, 2017 and now practices as part of SGR’s cooperative/condominium practice group.

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