Mold

Black Mold

The New York County Supreme Court issued a decision on September 27, 2006, finding that current scientific evidence does not support a conclusion that mold or damp indoor environments cause illness.    The lengthy decision was issued after an extensive hearing.   This is a very important decision for all landlords, including cooperative and condominium boards, and indicates a growing trend among courts across the country to view evidence of mold-caused illnesses with increasing skepticism.

In Fraser v. 301-52 Township Corp., the plaintiffs (husband, wife, and child) sued their cooperative for personal injuries allegedly caused by mold in their water-damaged apartment.  The plaintiffs alleged that their injuries included “headache, rashes, nasal congestion, frequent cough, sore throat, fatigue, itchy and swollen eyes, sneezing, mental and emotional distress, anxiety and depression, hypersensitivity to mold, asthmatic symptoms, repetitive and pervasive upper respiratory infections and nightmares.”

The court heard evidence to determine whether the plaintiffs’ theory that mold caused their illnesses was “generally accepted in the scientific community and whether the methodology used by plaintiffs to measure the mold, was within generally accepted scientific methods.”  The court determined that 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.

Although this is a single decision by a single trial court, it is likely that it will have an immediate impact on pending mold litigation and may possibly curtail similar personal injury suits in the future — unless, of course, the scientific consensus changes or other courts assess the current state of the science differently.  This is the first substantive decision in New York dealing with mold liability-related factual issues.  However, it is important to note that mold can still cause property damage and that the presence of mold in an apartment building may lead to liability for the damage.

If you have mold complaints in your building, please contact us to discuss the effect of this decision.  Do not, however, assume that the issue of liability has been finally determined, or that water-damage or mold conditions need not be promptly and effectively addressed.

 

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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