Last summer, Evelyn Cogan was cleaning her studio apartment at 69 West 9th Street, and discovered that the floor behind her sofa was wet and that there was a damp black stain on the wall. A former co-op board member for nine years, including a stint as president, Cogan acted methodically. She alerted the super, who determined that the water was coming from an improperly installed ice-maker in the refrigerator of Cogan's next-door neighbors.

The next step for some would have been to speak to a lawyer, or raise hell with the co-op board. Cogan, instead, talked to her neighbors. Then she contacted her insurance company. And after that, she notified the board and the managing agent.

"I don't believe the corporation has a responsibility for the improper installation of an appliance in an apartment," the 77-year-old Cogan says. "The first step is to give it to your insurance company and let them take it up with your neighbor's insurance company. I didn't ask [the board or property manager] for anything. I simply thought they should know that one of the apartments has mold."

Board president Georganne Lund, a friend of Cogan's, appreciated the non-confrontational, non-litigious approach. "I think it's better for the shareholders to leave this to the two insurance companies entirely," Lund says. If Cogan's repair costs ultimately exceed her insurance coverage, Lund adds, the board might step in and try to persuade the shareholder who caused the problem to foot the bill.

"You have to look at each situation and see what the cause of the damage was," says Lund. "People have to be willing to talk, and if that doesn't work then the board and managing agent should get involved."

"I agree that's a very good way to go about it," says attorney Steven Wagner, a partner at Wagner Davis who has extensive experience with mold-related litigation. "I would also advise people to check their insurance policies and make sure they have mold coverage — and remember that $20,000 is not enough. I would go for the unlimited coverage."

See Me, Feel Me

Who's responsible for addressing mold damage in a co-op apartment? "I like to use the touch test," Wagner says. "If you can see it and touch it, you're responsible for it. Take a careful look at the proprietary lease. If the answer's still not clear, you should consult an attorney and get an interpretation of legal precedents," he advises. "And finally, do a negligence analysis. If there is some duty that is breached and damage results, then whoever was negligent would be responsible for all the damages, both personal injury and to property."

Edith Schickedanz of Gumley Haft Real Estate, the building's manager, referred Cogan to reliable contractors who could handle the delicate job of repairing her damaged parquet floor and plaster wall. "We've been instrumental in her dealing with the neighbors and in providing information for their insurance companies," says Schickedanz. "We're trying to retain that neighborly friendship. Sometimes neighbors don't take responsibility for their actions, so I get involved right away to ensure that it doesn't get into a lawsuit."

However: Cogan's insurance company determined that her homeowner's policy covers mold damage up to $5,000 but only if it is a "sudden occurrence." Her case did not qualify, though the insurer did agree to reimburse her for water damage.

Cogan's next step was to hire JLC Environmental Consultants to examine the mold. After conducting tests, microbial consultant Anna Tinker determined that Cogan's apartment contains potentially hazardous mold that should be professionally removed. (Mold is not carcinogenic, and only a handful of the 100,000 species are considered toxic. According to the Centers for Disease Control and Prevention, people with allergies and immune deficiencies are particularly susceptible to health problems from mold exposure.) Cogan sought three bids from mold-removal companies.

Getting Personal

From a legal standpoint, when mold causes property damage the responsibility is more clear-cut than when it causes personal injury, says attorney Richard Siegler, a partner at Stroock & Stroock & Lavan. "The issue of damages is pretty clear — the person who causes it has to fix it," he says. The ruling in Fraser would speak to recovering damages for personal injury.

In any case, having a mold-infested apartment is no day at the beach. Cogan had to pack up her belongings, clear out her apartment, and move out while her place was repaired. Neighbors agreed to store some of her most delicate possessions.

As for her decision to work through her insurance company rather than a lawyer, she observes: "Why use a sledgehammer when you can use a feather?" Adds Lund, "Sometimes, people just need to communicate."

Adapted from Habitat December 2008. For the complete article and more, join our Archive >>