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Apartment Mold and Dampness Update

When we last visited the issue of whether a plaintiff can claim personal injury as a result of environmental mold or a damp indoor environment ( Habitat January 2007, "Apartment Mold and Dampness"), we reported the case of Fraser v. 301-52 Townhouse Corp. Since then, the plaintiffs were unsuccessful in what the legal system calls a "reargument." More significantly, two other cases concerning mold have appeared in New York State courts. Although neither concerns a co‑op or a condominium, a review of them can be instructive for both apartment-buyers and building boards facing this evolving issue.

To recap the Fraser case, plaintiffs Colin and Pamela Fraser and their daughter Alexandra had argued that mold in their water-damaged apartment at 301 East 52nd Street had caused them health problems. The defendant co-op moved for a hearing, known as a " Frye hearing ," to determine whether the Frasers' theory of the case – that mold caused their respiratory problems – was generally accepted in the scientific community. The court determined that the Frasers had failed to demonstrate that the community of scientists, allergists, immunologists and occupational- and environmental-health physicians did so.

After this decision, the plaintiffs asked the Fraser court to reconsider its decision, citing five points to support "reargument." Reargument is not a "do-over" and may not be used to rehash arguments already made or to advance new arguments that were available at the time of the original motion

The court granted the plaintiffs' motion to reargue, but only on one point, and eventually corrected one aspect of the original decision, by agreeing that whether a generally accepted method of testing was properly performed was beyond the scope of a Frye hearing. But while the court retracted any statements made in the decision concerning this issue, the overall decision stood: There was no evidence to link the Frasers' physical injuries to the mold in the apartment.

These decisions have been appealed to the Appellate Division of the New York Supreme Court in New York County, and a decision is anticipated in late 2008 or early 2009.

In the meantime, two related cases have arisen:

In Bryan T. Netti v. Auburn Enlarged City School District , minor students Bryan T. Netti and Jessica L. Marcon sued, claiming that, because the West Middle School in Auburn, N.Y., was a damp building with inadequate ventilation, they suffered irritative and allergic-type symptoms and respiratory disease. The school district made a motion to dismiss on the theory that the plaintiffs' symptoms were only consistent with multiple chemical sensitivity, which is not recognized in the scientific or medical community. The plaintiffs submitted an affidavit from a physician, who stated his opinion "with a degree of reasonable medical certainty" that plaintiffs' symptoms were caused by building dampness; excess and atypical mold disclosure; and inadequate ventilation.

The motion court, in Cayuga County, determined that the issue should be heard by the jury and refused to dismiss the claims. The appellate court for Cayuga affirmed this, and explained that since the affidavits submitted by the defendant's expert showed there was no scientifically based causal relationship — contradicting the plaintiffs' expert — that there was an issue of fact to be heard by the jury. The court found that the record contained sufficient epidemiological evidence to support a finding of general causation, i.e., that atypical molds found to be present in the school building could have caused plaintiffs' symptoms.

In Friedman v. Madison 40 Associates, a case decided in the Bronx County Supreme Court, Virginia Friedman, Sanford Friedman and Jill Weingarten sought damages for injuries allegedly sustained as a result of exposure to atypical mold at their workplace. The defendant landlords moved for an order precluding plaintiffs' expert from providing testimony that mold in an indoor setting caused the type of ailments for which plaintiffs were seeking damages, on the grounds that such opinions are not generally accepted in the scientific community. The defendants also requested that the court hold a Frye hearing.

From January 1996 until October 2001, Virginia Friedman and Jill Weingarten were partners in a business with an office at 275 Madison Avenue. Beginning in September 1999, plaintiffs noticed that water drainage from an air conditioning unit on a higher floor cascaded down the exterior wall of the office. They complained, but nothing was done.


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