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“Toxic Torts” Decision-Summaries Posted on New York Appellate Digest Website Between January 1, 2013 and June 21, 2019.

Copyright 2019 New York Appellate Digest, LLC.

Toxic Torts

January 1, 2013 and

June 21, 2019

Table of Contents: Several of the Appellate-Division Decisions Have Been Reversed; Both the

Appellate Division and Court of Appeals Decision-Summaries Are Included Here; Using the

Search Panel, Choose “Toxic Torts” and Type “CtApp” in the “Search by Keywords” Line to

See Only the Court of Appeals Decision-Summaries.

1

Contents DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COKE OVENS

USED IN THE MANUFACTURE OF STEEL WERE NOT PRODUCTS TRIGGERING THE

DUTY TO WARN OF THE HAZARDS OF BREATHING EMISSIONS FROM THE OVENS,

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN

GRANTED (CT APP). ................................................................................................................... 6

DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-

PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION

SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF

LIMITATIONS HAD EXPIRED (FOURTH DEPT)..................................................................... 7

DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING PRODUCT DURING AN

OFFICE BUILDING RENOVATION, PLAINTIFF, AN EVENING OFFICE CLEANER,

ALLEGED INJURY FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE

DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT PROPERLY DENIED (FIRST DEPT). ................................................................... 8

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED DEPOSITION

TESTIMONY FROM PROCEEDINGS IN OTHER STATES SHOULD NOT HAVE BEEN

ADMITTED IN THE PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW

TRIAL ORDERED (THIRD DEPT). ............................................................................................. 8

RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT ENTITLE CHEVRON

TO SUMMARY JUDGMENT IN THIS ASBESTOS-MESOTHELIOMA CASE (CT APP). .... 9

STATUTORY PRESUMPTION THAT THE PAINT CONTAINED LEAD DID NOT APPLY

BECAUSE THERE WAS NO EVIDENCE THE INTERIOR OF THE BUILDING WAS

PAINTED PRIOR TO JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE

RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE CONNECTION BETWEEN

THE PAINT AND INFANT PLAINTIFF’S LEAD POISONING, DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). .. 11

APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM AGAINST THE

VILLAGE STEMMING FROM A HAZARDOUS SUBSTANCE IN THE WATER SUPPLY

PROPERLY GRANTED, ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE

DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS UNDERLYING THE

CLAIM AND WAS NOT PREJUDICED BY THE DELAY (THIRD DEPT). .......................... 12

THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT IN THIS ASBESTOS

CASE AFFIRMED, EVIDENCE OF A CAUSAL CONNECTION BETWEEN ASBESTOS IN

BRAKE LININGS AND PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT

SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (CT APP). ....................................... 13

BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM THE LESSEE IN

THIS LEAD PAINT CASE WHERE THE INJURED PARTY WAS A SUBTENANT, THE

INDEMNIFICATION CLAUSE IN THE LEASE DID NOT LIMIT RECOVERY TO THE

NEGLIGENCE OF THE LESSEE AND THEREFORE THE CLAUSE WAS

UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW (SECOND DEPT). ... 13





2

SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND

ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN

COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS

ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT ....................... 14

ACTIONS AGAINST THE COUNTY STEMMING FROM PLAINTIFF’S EXPOSURE TO

ASBESTOS WHILE WORKING ON COUNTY PROPERTY WERE TIME BARRED,

INCLUDING AN ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE

PRESENCE OF ASBESTOS (SECOND DEPT). ........................................................................ 15

PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S DEADLINE FOR EXPERT

DISCLOSURE IN THIS TOXIC TORTS CASE WARRANTED PRECLUSION OF

PLAINTIFF’S EXPERT EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF

DEFENDANT (THIRD DEPT). ................................................................................................... 16

DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE

TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED,

THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE

WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT). ................................... 17

ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY PLAINTIFF’S

DECEDENT IN 1997 MENTIONED MESOTHEMIOLA, THE LANGUAGE OF THE

RELEASE WAS DEEMED TO BE BOILERPLATE WHICH DID NOT PRECLUDE THE

INSTANT SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT). ................ 17

TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY RETURNED AN

INCONSISTENT VERDICT WERE INADEQUATE, NEW TRIAL ORDERED 2ND DEPT. 18

DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE

SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE

POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED. ........ 19

INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED

THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS,

ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS

MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED

NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS. ...................................... 20

IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN

LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT

PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE

BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE. ......................................... 21

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-

BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE

DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT. ... 22

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-

BARRED AT THE PLEADING STAGE, PLAINTIFF ADEQUATELY PLED THE

DEVELOPMENT OF “NEW” SYMPTOMS WITHIN THREE YEARS OF FILING SUIT. ... 23





3

HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS IN THE STREAM OF

COMMERCE, PRODUCTS LIABILITY CAUSES OF ACTION AGAINST THE

MANUFACTURER OF THE OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN

DISMISSED. ................................................................................................................................ 23

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS LEAD PAINT

POISONING CASE SHOULD NOT HAVE BEEN GRANTED. ............................................... 24

DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-

PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD,

COMPLAINT SHOULD HAVE BEEN DISMISSED. ............................................................... 25

NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO PRESUMPTION

BUILDING CONSTRUCTED IN 1974 DID NOT HAVE LEAD PAINT, SUMMARY

JUDGMENT PROPERLY DENIED. ........................................................................................... 26

LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS

ARE FIRST DISCOVERED, NOT WHEN THE CAUSE OF THE SYMPTOMS IS LEARNED.

....................................................................................................................................................... 27

PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE,

INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF

ASBESTOS EMANATING FROM DEFENDANT’S PRODUCTS........................................... 27

ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY FEDERAL LAW IN

THIS PESTICIDE-INJURY LAWSUIT. ..................................................................................... 28

QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION PROVISIONS

APPLIED TO CERTAIN POLICIES COVERING INJURY BY LEAD PAINT. ...................... 29

DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY JUDGMENT IN

TOXIC TORT (MOLD EXPOSURE) ACTION ON STATUTE OF LIMITATIONS

GROUNDS. .................................................................................................................................. 29

ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT COVERED BY THE

RELEVANT POLICY. ................................................................................................................. 30

LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT

WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER

GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO

APARTMENTS WHERE A CHILD RESIDES. ......................................................................... 31

PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR OPINIONS ON THE CAUSE

OF PLAINTIFF’S IN UTERO INJURIES WERE ARRIVED AT USING A GENERALLY

ACCEPTED METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY FROM

GASOLINE FUMES IN CAR MANUFACTURED BY DEFENDANT BMW. ........................ 32

DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED SUMMARY

JUDGMENT IN THIS LEAD-PAINT-INJURY CASE, DEFENDANT FAILED TO

AFFIRMATIVELY DEMONSTRATE, INTER ALIA, LACK OF ACTUAL OR

CONSTRUCTIVE NOTICE. ....................................................................................................... 33





4

CRITERIA FOR LEAD-PAINT-EXPOSURE CAUSE OF ACTION DESCRIBED ................. 33

CPLR 214-C, WHICH STARTS THE STATUTE OF LIMITATIONS UPON DISCOVERY OF

THE INJURY, APPLIES ONLY TO TOXIC TORTS—THE STATUTE DOES NOT APPLY

TO AN ACTION SEEKING DAMAGES FOR THE ALLEGEDLY NEGLIGENT APPROVAL

(BY THE TOWN) OF A DEFECTIVE SEPTIC SYSTEM ......................................................... 34

LANDLORD FAILED TO ELIMINATE TRIABLE ISSUES OF FACT CONCERNING

WHETHER HE HAD CONSTRUCTIVE NOTICE OF THE PRESENCE OF LEAD PAINT . 35

CRITERIA FOR LIABILITY FOR LEAD PAINT EXPOSURE DESCRIBED ........................ 35

PLAINTIFF’S MOTION TO APPOINT A TEMPORARY ADMINISTRATOR AFTER

DEFENDANT’S DEATH PROPERLY DENIED—RELEVANT LAW EXPLAINED ............ 36

SUCCESSIVE TENANTS OF SAME APARTMENT LIMITED TO A SINGLE POLICY

LIMIT RE: RECOVERY FOR LEAD PAINT EXPOSURE ....................................................... 37

IN A LEAD-PAINT-INJURY CASE, NON-PARTY MEDICAL RECORDS NOT

DISCOVERABLE (RE: PLAINTIFF’S MOTHER AND SIBLINGS)–NON-PARTY

ACADEMIC RECORDS SHOULD BE SUBMITTED FOR IN CAMERA REVIEW–MOTHER

CANNOT BE COMPELLED TO SUBMIT TO AN IQ TEST ................................................... 38

SUMMARY JUDGMENT PROPERLY GRANTED TO PROPERTY OWNER IN LEAD-

PAINT-INJURY CASE ................................................................................................................ 39

COUNTY WATER AUTHORITY HAD STANDING TO BRING ACTION BASED UPON

THE CHEMICAL CONTAMINATION OF ITS WELLS—CPLR 214-C GOVERNS ACTIONS

BASED UPON CONTAMINATION—ACTION WAS UNTIMELY ........................................ 40

ABSENTEE LANDLORD GRANTED SUMMARY JUDGMENT IN LEAD-PAINT

EXPOSURE CASE—NO CONSTRUCTIVE NOTICE .............................................................. 41

PLAINTIFFS IN LEAD-PAINT EXPOSURE CASES ARE NOT REQUIRED TO HIRE AN

EXPERT TO LINK INJURIES TO LEAD-PAINT EXPOSURE AT THE CPLR 3121 (A)

DISCOVERY STAGE—HOWEVER, PLAINTIFFS MUST PROVIDE MEDICAL REPORTS

WHICH INCLUDE A “RECITAL OF THE INJURIES AND CONDITIONS AS TO WHICH

TESTIMONY WILL BE OFFERED AT THE TRIAL” .............................................................. 41

QUESTION OF FACT ABOUT PROPERTY OWNER’S CONSTRUCTIVE NOTICE OF

LEAD PAINT/TENANT BY THE ENTIRETY COULD BE VICARIOUSLY LIABLE .......... 43

CORPORATE OFFICER NOT LIABLE IN LEAD PAINT EXPOSURE CASE UNDER

“COMMISSION OF A TORT” DOCTRINE FOR NONFEASANCE/NO EVIDENCE OF

MALFEASANCE OR MISFEASANCE ...................................................................................... 43

EUGENICS ARGUMENT SHOULD BE REJECTED IN A LEAD-PAINT POISONING

CASE/NOTICE CRITERIA EXPLAINED .................................................................................. 44

NO CONSTRUCTIVE NOTICE OF PEELING PAINT IN LEAD-PAINT EXPOSURE CASES

....................................................................................................................................................... 45





5

NUMEROUS CORE ISSUES DISCUSSED IN COMPLICATED CASE STEMMING FROM

MOLD IN A COMPLEX OF APARTMENTS WHICH NECESSITATED TERMINATION OF

ALL THE LEASES ...................................................................................................................... 46

PROOF OF NORMAL NOTIFICATION PROCEDURE SUFFICIENT TO DEMONSTRATE

DEFENDANT WAS NOTIFIED OF LEAD-PAINT-INJURY EXCLUSION IN POLICY ...... 46

DISCLOSURE APPROPRIATE IN LEAD PAINT CASE, PHYSICIAN-PATIENT

PRIVILEGE WAIVED ................................................................................................................. 47

“NEGLIGENT OWNERSHIP AND MAINTENANCE” VS “NEGLIGENT ABATEMENT”

CAUSES OF ACTION IN LEAD-PAINT CASE ........................................................................ 48

PAST PSYCHOLOGICAL RECORDS DEEMED RELEVANT IN LEAD-PAINT INJURY

CASE WHERE PSYCHOLOGICAL INJURY ALLEGED ........................................................ 48

ONLY SELLERS’, NOT BUYERS’, AGENT CAN BE LIABLE FOR FAILURE TO

DISCLOSE LEAD PAINT DANGERS ....................................................................................... 49

NOTICE ELEMENT OF LEAD-PAINT INJURY CAUSE OF ACTION EXPLAINED .......... 49

“SPEAKING AUTHORIZATIONS” RE NON-PARTY HEALTHCARE PROVIDERS IN

LEAD-PAINT INJURY CASE OKAY/BUT NOT OKAY FOR NON-PARTY EDUCATORS 50

OKAY TO COMPEL PLAINTIFF TO PRODUCE MEDICAL REPORTS LINKING INJURY

TO LEAD PAINT OR BE PRECLUDED FROM INTRODUCING SUCH EVIDENCE .......... 50

PLAINTIFF WAS UNABLE TO DEMONSTRATE LANDLORD HAD KNOWLEDGE OF

PRESENCE OF LEAD PAINT .................................................................................................... 51

IN LEAD PAINT EXPOSURE CASE, COURT’S ORDER TO PROVIDE MEDICAL REPORT

LINKING INJURIES TO EXPOSURE BEFORE DEPOSITIONS UPHELD ............................ 51

QUESTION OF FACT RAISED ABOUT OWNER’S KNOWLEDGE OF PRESENCE OF

LEAD PAINT ............................................................................................................................... 52

OWNER/OFFICER OF COMPANY CAN BE PERSONALLY LIABLE FOR TOXIC

EMISSIONS RELEASED BY COMPANY. ............................................................................... 53

SINGLE POLICY LIMIT HELD TO APPLY TO SUCCESSIVE TENANTS IN LEAD-PAINT-

TAINTED APARTMENT. ........................................................................................................... 53





6

DEFENDANT DID NOT DEMONSTRATE AS A MATTER OF LAW

THAT COKE OVENS USED IN THE MANUFACTURE OF STEEL

WERE NOT PRODUCTS TRIGGERING THE DUTY TO WARN OF

THE HAZARDS OF BREATHING EMISSIONS FROM THE OVENS,

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD

NOT HAVE BEEN GRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, reversing the Appellate

Division, determined the defendant (Wilputte), which sold coke ovens for steel production, did not demonstrate,

as a matter of law, the ovens were not “products” triggering the duty to warn. Therefore defendant’s motion for

summary judgment should not have been granted (by the Appellate Division). Plaintiff’s decedent worked on

top of the coke ovens and alleged breathing the toxic substances caused lung cancer. Plaintiffs alleged defendant

had a duty to warn plaintiff’s decedent to use a respirator when working on the ovens. The Appellate Division

had determined the coke ovens, housed in so-called “batteries,” were akin to buildings and construction of the

buildings was a service, not a product:

… [D]efendant has not met its burden in showing that the coke ovens at issue are not products as a matter of

law. Regardless of the alterations Bethlehem [the steel manufacturer] may have made to the scale and

specifications of the battery at large, the ovens themselves served one function: the production of coke. This

process was standard across all variations of coke ovens that Wilputte sold, ultimately placing the hazardous

thing at issue squarely within the category of products to which liability has attached in the failure-to-warn

context. …

… Wilputte was responsible for placing the ovens into the stream of commerce and that it derived financial

benefit from its role in the production process. Indeed, by the time decedent began working for Bethlehem,

Wilputte had sold hundreds of coke ovens to plants … . Wilputte also marketed its ovens with informational

brochures showing the completed ovens and their functionality, indicating that Wilputte, not Bethlehem, was the

commercial source of the product. … Although the ovens were largely assembled and completed on-site, that

merely speaks to the logistical realties of the market of which Wilputte had a considerable share. …

… [T]he record supports Supreme Court’s conclusion that Wilputte was in the best position to assess the safety

of the coke ovens because of its superior knowledge regarding the ovens’ intended functionality … . “A major

determinant of the existence of a duty to warn” is an assessment of “whether the manufacturer is in a superior





7

position to know of and warn against those hazards” inherent to its product … . Matter of Eighth Jud. Dist.

Asbestos Litig., 2019 NY Slip Op 04640, CtApp 6-11-19

DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF

ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE

THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN

GRANTED ON THE GROUND THAT THE STATUTE OF

LIMITATIONS HAD EXPIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to

demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment

on the ground that the statute of limitations had passed should not have been granted:

In moving to dismiss the complaint on statute of limitations grounds, each defendant had “the initial burden of

establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter

alia, when the plaintiff[s’] cause of action accrued” … Here, neither defendant established the relevant accrual

date of plaintiffs’ claims for injury caused by the latent effects of lead paint exposure and, in the absence of such

evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on

those claims … . Supreme Court thus erred in granting defendants’ respective motions to that extent. We note

that, at oral argument in these appeals, plaintiffs conceded that their claims for patent injuries arising from such

exposure were properly dismissed as time-barred. Chaplin v Tompkins, 2019 NY Slip Op 04562, Fourth Dept

6-7-19

http://www.nycourts.gov/reporter/3dseries/2019/2019_04640.htm


http://nycourts.gov/reporter/3dseries/2019/2019_04562.htm






8

DEFENDANT’S SUBCONTRACTOR USED A PAINT STRIPPING

PRODUCT DURING AN OFFICE BUILDING RENOVATION,

PLAINTIFF, AN EVENING OFFICE CLEANER, ALLEGED INJURY

FROM BREATHING TOXIC FUMES, THERE IS EVIDENCE

DEFENDANT HAD A DUTY TO WARN, DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion for summary judgment in this toxic tort case was properly

denied. Plaintiff, an evening cleaner in an office building, allege she was injured by inhaling toxic fumes from a

paint stripping product used by a defendant’s subcontractor (Island Painting):

Defendant failed to establish prima facie that it did not have actual or constructive notice of the alleged dangerous

condition of the premises in time to take corrective measures … . Defendant submitted no evidence with respect

to notice. However, there is evidence in the record that defendant had superintendents on site who oversaw the

subcontractors’ work and that defendant had a duty to notify and warn the building owner and its occupants of

hazardous work undertaken on the project site so as to safeguard the building’s occupants against exposure to

such hazards. Thus, issues of fact exist as to whether defendant knew of the scheduled use of the paint stripper

and of the product’s toxicity and yet failed to warn the building owner and occupants to prevent harm to them.

These issues of fact as to negligence also preclude summary judgment in defendant’s favor on its claim for

contractual indemnification by Island Painting … . Arias v Recife Realty Co., N.V., 2019 NY Slip Op 04269,

First Dept 5-30-19

IN THIS ASBESTOS EXPOSURE CASE, A WITNESS’S VIDEOTAPED

DEPOSITION TESTIMONY FROM PROCEEDINGS IN OTHER

STATES SHOULD NOT HAVE BEEN ADMITTED IN THE

PLAINTIFF’S DIRECT CASE OR IN THE DEFENSE CASE, NEW

TRIAL ORDERED (THIRD DEPT).

The Third Department, ordering a new trial, determined that videotaped deposition testimony from proceedings

in other states was not admissible in the New York action. It was alleged that plaintiff’s decedent died from

exposure to asbestos in a joint compound made by Georgia-Pacific. An employee of Georgia-Pacific, Charles

Lehnert, who was familiar with the formula for the joint compound, gave the videotaped deposition testimony:








9

CPLR 3117 (a) (3) provides, in relevant part, that “any part or all of a deposition, so far as admissible under the

rules of evidence, may be used . . . by any party for any purpose against any other party who was present or

represented at the taking of the deposition or who had the notice required under these rules.” Here, defendant

was permitted to introduce deposition testimony given by Lehnert in the 2007 Texas state court action for the

purpose of demonstrating that it contradicted the 2001 and 2003 testimony that plaintiff had been permitted to

introduce as part of its case-in-chief. However, although defendant was a party to the 2007 Texas action, plaintiff

was not, and he had no opportunity to be present and cross-examine Lehnert. Thus, this testimony was not

admissible under CPLR 3117 (a) (3) … . …

Although defendant did not cross-appeal, our holding reversing Supreme Court’s ruling regarding Lehnert’s

2007 testimony necessarily brings up for review Supreme Court’s denial of defendant’s motion to preclude

Lehnert’s 2001 and 2003 testimony (seeCPLR 5501 [a] [1] …). Upon review, we find that none of Lehnert’s

deposition testimony should have been admitted into evidence at this trial. Although a live witness may be

impeached with prior inconsistent testimony, Lehnert never testified for any party in this action, either at the

trial itself or at any pretrial deposition. He was merely a witness who had testified years ago in multiple other

states on the subject of the content of Georgia-Pacific joint compound. Rather than calling him (or any other

witness) to testify on this topic, both parties resorted to retrieving video of Lehnert’s testimony in those earlier

actions and selectively playing those portions they believed supported their respective contentions. The jury was

essentially asked to determine whether Lehnert, an empty chair in New York, testified more credibly in Illinois

or Texas. In this scenario, CPLR 3117 (a) (2) did not permit plaintiff to introduce the 2001 and 2003 depositions

on his case-in-chief, and CPLR 3117 (c) did not permit defendant to impeach those depositions with another

deposition. Billok v Union Carbide Corp., 2019 NY Slip Op 02185, Third Dept 3-21-19

RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT

ENTITLE CHEVRON TO SUMMARY JUDGMENT IN THIS

ASBESTOS-MESOTHELIOMA CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined that

defendant Chevron was not entitled to summary judgment in this asbestos-mesothelioma action. Plaintiff’s

decedent [Mr. South] signed a release in 1997 and Chevron argued the release precluded the subsequent lawsuit:






10

Like Supreme Court, the Appellate Division concluded that the record did not demonstrate Chevron’s

entitlement to summary judgment, because the release did not specifically mention mesothelioma, which then

required the court to determine whether extrinsic evidence entitled Chevron to summary judgment. Pointing to

the “meager consideration” [$1,750] and the lack of any diagnosis of mesothelioma as to Mr. South at the time

he settled, the Appellate Division concluded that the record left open the question of whether the release

pertained to an existing pulmonary condition and the fear of some future asbestos-related disease, or if it was

intended to release all future asbestos-related diseases arising from Mr. South’s employment by Texaco. The

parties agree that, at the time he executed the release, Mr. South suffered from a nonmalignant pulmonary disease

but not from mesothelioma or cancer. …

The sole question presented to us on this appeal is whether Chevron has established that the release, coupled

with the 1997 complaint, eliminates all material questions of fact and proves that the release bars the claims here

as a matter of law. Answering that question requires us to consider the protections afforded to Mr. South by

admiralty law and Section 5 of FELA [Federal Employers’ Liability Act] (45 USC § 55), which is incorporated

into the Jones Act by 46 USC § 30104. …

… [W]e conclude that Chevron has not met its burden to demonstrate the absence of any material question of

fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma … . The release

itself does not mention mesothelioma. It does say that Mr. South “is giving up the right to bring an action against

the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about

Claimant’s condition as a result of exposure to any product[.]” But “claimant’s condition” may cabin the “new

or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the

“condition” both parties agree was the only one he suffered at the time. Matter of New York City Asbestos Litig.,

2019 NY Slip Op 01259, CtApp 2-19-19







11

STATUTORY PRESUMPTION THAT THE PAINT CONTAINED

LEAD DID NOT APPLY BECAUSE THERE WAS NO EVIDENCE THE

INTERIOR OF THE BUILDING WAS PAINTED PRIOR TO

JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE

RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE

CONNECTION BETWEEN THE PAINT AND INFANT PLAINTIFF’S

LEAD POISONING, DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined that

questions of fact were raised about the landlord’s (New York City Housing Authority’s, NYCHA’s)

responsibility for the lead poisoning of infant plaintiff (A.L.). Successive blood tests revealed increasing lead

levels as the child aged, and a decrease after the apartment was repainted. The first issue the court dealt with was

whether Local Law 1, which creates a presumption that the paint in the apartment contains more than .5 percent

lead for buildings “erected” prior to January 1, 1960, applied. The certificate of occupancy for the building was

issued in March, 1961, but there was evidence the building was under construction in 1959. “Erected” was

(apparently) interpreted to mean when the apartment was painted, so the statutory presumption did not apply:

Here, A.L.’s elevated blood lead level suggests … a hazardous condition may have existed in the apartment

during the relevant period. While there are other sources of lead poisoning, housing is a prime source … The

circumstantial evidence of a hazardous lead-based paint condition is also supported by an affirmation by Dr.

Douglas B. Savino and an affidavit by lead paint expert William Savarese. Dr. Savino concluded that the

apartment contained a hazardous level of lead-based paint, given the “chronology of the infant plaintiff’s blood

lead levels,” which was “environmentally and temporally related to the infant plaintiff’s residence.” He noted

that A.L.’s blood levels increased over time until he was diagnosed with 16 ug/dl on March 19, 2003, coinciding

with the repainting of the apartment on March 5-6, 2003. Dr. Savino attributed the lead spike in A.L.’s blood to

A.L. ingesting an excessive amount of lead dust. Dr. Savino further pointed out that A.L.’s blood lead levels

declined gradually after the 2003 apartment repair and the 2004 removal of the chipped and peeling interior

doors. William Savarese echoed Dr. Savino’s statements and conclusions. A.L. v New York City Hous. Auth.,

2019 NY Slip Op 00702, First Dept 1-31-19







12

APPLICATION FOR LEAVE TO FILE LATE NOTICES OF CLAIM

AGAINST THE VILLAGE STEMMING FROM A HAZARDOUS

SUBSTANCE IN THE WATER SUPPLY PROPERLY GRANTED,

ALTHOUGH THERE WAS NO ADEQUATE EXCUSE FOR THE

DELAY, THE VILLAGE HAD TIMELY NOTICE OF THE FACTS

UNDERLYING THE CLAIM AND WAS NOT PREJUDICED BY THE

DELAY (THIRD DEPT).

The Third Department determined Supreme Court properly granted petitioners’ application to file late notices of

claim against the village stemming from a hazardous substance, PFOA, in the municipal water supply. Although

petitioners did not have an adequate excuse for the delay, respondents had timely knowledge of the facts

underlying the claim and were not prejudiced by the the delay:

… [I]t is evident that respondent was well aware of the PFOA contamination in its municipal water system, the

likelihood of increased PFOA levels in the blood of its residents as a result of exposure to PFOA and the potential

negative health consequences as a result thereof. On the record before us, therefore, respondent cannot plausibly

claim that it had only a “general awareness” of the presence of PFOA in its municipal water system. Accordingly,

we conclude that Supreme Court properly found that respondent had actual notice of all the essential facts

underlying petitioners’ claims … . …

Further, there has been no demonstration of substantial prejudice to respondent as a result of petitioners’ delay

in seeking to file late notices of claim … . Respondent has been aware of the subject PFOA contamination since

at least October 2014, it was apprised of the potential negative health risks to its residents from PFOA exposure

and, as a result of the blood testing program commenced by DOH, it learned of the elevated levels of PFOA in

its residents — despite its efforts to downplay said results. Moreover, respondent alleges that it has located the

source of the PFOA contamination and petitioners, as residents of respondent, remain available for any further

investigation into whether respondent’s conduct was the proximate cause of their alleged injuries. In turn, other

than the passage of time, respondent has offered no particularized evidence in opposition to establish that it

suffered substantial prejudice … . Matter of Holbrook v Village of Hoosick Falls, 2019 NY Slip Op 00342, Third

Dept 1-17-19







13

THE GRANT OF FORD’S MOTION TO SET ASIDE THE VERDICT

IN THIS ASBESTOS CASE AFFIRMED, EVIDENCE OF A CAUSAL

CONNECTION BETWEEN ASBESTOS IN BRAKE LININGS AND

PLAINTIFF’S DECEDENT’S MESOTHELIOMA NOT SUPPORTED

BY LEGALLY SUFFICIENT EVIDENCE (CT APP).

The Court of Appeals, affirming the grant of defendant-Ford’s motion to set aside the verdict in this asbestos

case, over two concurring opinions and a dissenting opinion, determined the evidence of a causal connection

between the asbestos in brake linings on Ford vehicles and plaintiff’s decedent’s mesothelioma was legally

insufficient. Plaintiff’s decedent worked in a garage and was exposed to asbestos-laden dust from new and used

brakes, clutches and manifold and engine gaskets:

Viewing the evidence in the light most favorable to plaintiffs, the evidence was insufficient as a matter of law

to establish that respondent Ford Motor Company’s conduct was a proximate cause of the decedent’s injuries

pursuant to the standards set forth in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) and Cornell v 360 W. 51st

St. Realty, LLC(22 NY3d 762 [2014]). Accordingly, on this particular record, defendant was entitled to

judgment as a matter of law under CPLR 4404 (a) … . Matter of New York City Asbestos Litig., 2018 NY Slip

Op 08059, CtApp 11-27-18

BUILDING OWNER COULD NOT SEEK INDEMNIFICATION FROM

THE LESSEE IN THIS LEAD PAINT CASE WHERE THE INJURED

PARTY WAS A SUBTENANT, THE INDEMNIFICATION CLAUSE IN

THE LEASE DID NOT LIMIT RECOVERY TO THE NEGLIGENCE

OF THE LESSEE AND THEREFORE THE CLAUSE WAS

UNENFORCEABLE UNDER THE GENERAL OBLIGATIONS LAW

(SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the lessee’s motion for summary judgment

in this lead paint injury case should have been granted. The injured child was in the subtenant’s family. The

subtenant sued the owner of the building for failing to abate the lead paint hazard. The owner attempted to seek

indemnification from the lessee. The indemnification clause in the lease, however, was not enforceable because

it was not limited to the lessee’s negligence:










14

At the time when the alleged injury occurred, Administrative Code of the City of New York former § 27-

2013(h) (Local Law 1) … placed a specific duty on the owner of a multiple dwelling to abate lead paint in leased

premises where children under the specified age resided… . The owner of a cooperative corporation was

considered the owner of a multiple dwelling for purposes of Local Law 1… .

Contrary to the [lessee’s] contention, the fact that Local Law 1 imposed a nondelegable duty on [the owner] to

abate the lead paint hazard does not mean that [the owner] is precluded from recovering in indemnity, either

contractual or common-law, from third parties whose acts or omissions are alleged to have caused or contributed

to the infant plaintiff’s injuries… . However, under the circumstances presented, [the owner] may not seek

contractual indemnification from the [lessee] based on the indemnification provision contained in the proprietary

lease. “A broad indemnification provision in a lease . . . which is not limited to the lessee’s acts or omissions,

fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the

lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law

§ 5-321” … . N.A. v Hillcrest Owners Assn., Inc., 2018 NY Slip Op 07133, Second Dept 10-24-18

SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A

DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF

PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A

CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS

ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND

DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional

discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of

plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:

“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable

excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or

defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in

concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the

plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff

demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .






15

Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion

which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result

of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of

prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless

the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met,

[t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the

proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it

would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those

set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18

ACTIONS AGAINST THE COUNTY STEMMING FROM

PLAINTIFF’S EXPOSURE TO ASBESTOS WHILE WORKING ON

COUNTY PROPERTY WERE TIME BARRED, INCLUDING AN

ACTION ALLEGING FRAUDULENT CONCEALMENT OF THE

PRESENCE OF ASBESTOS (SECOND DEPT).

The Second Department determined plaintiff's actions stemming from exposure to asbestos, including an action

against the county alleging fraudulent concealment of the presence of asbestos where plaintiff worked, were time

barred:

Generally, an action to recover damages for personal injuries caused by the latent effects of exposure to any

substance or combination of substances must be commenced within three years of the date of discovery of the

injury by the plaintiff or from the date when, through the exercise of reasonable diligence, such injury should

have been discovered by the plaintiff, whichever is earlier (see CPLR 214-c[2] …). “For purposes of CPLR 214-

c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the

particular substance, the injured party discovers the primary condition on which the claim is based'” … . Where,

as here, a claim is asserted against a municipality, the statute of limitations as to the claim against the

municipality is 1 year and 90 days and is measured from the date of discovery of the injury or from the date

when, through the exercise of reasonable diligence, the injury should have been discovered, whichever is earlier

… . O'Brien v County of Nassau, 2018 NY Slip Op 05774, Second Dept 8-15-18







16

PLAINTIFF’S FAILURE TO COMPLY WITH THE COURT’S

DEADLINE FOR EXPERT DISCLOSURE IN THIS TOXIC TORTS

CASE WARRANTED PRECLUSION OF PLAINTIFF’S EXPERT

EVIDENCE AND SUMMARY JUDGMENT IN FAVOR OF

DEFENDANT (THIRD DEPT).

The Third Department, affirming Supreme Court's preclusion of plaintiff's (Colucci's) expert evidence and the

grant of summary judgment to defendant, determined the failure of plaintiff to meet the deadline for expert

disclosure warranted preclusion. Plaintiff had leased business space from defendant and alleged that exposure to

sewage and mold at the premises caused health problems. Plaintiff did not disclose her expert, one of her treating

physicians (Johanning), until a year after the discovery deadline imposed by Supreme Court. Defendant had

timely submitted expert evidence opining there was no causal relationship between plaintiff's exposure to sewage

and mold at the leased premises and plaintiff's health problems:

… [T]his Court has interpreted CPLR 3101 (d) (1) (i) as “requiring disclosure of any medical professional, even

a treating physician or nurse, who is expected to give expert testimony” … . Thus, while Johanning was listed

in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and

medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have

been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1)

(i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of

the facts and opinions to which he was expected to testify… . To that end, the expert disclosure statute requires,

in relevant part, “reasonable detail [of] the subject matter on which [the] expert is expected to testify, the

substance of the facts and opinions . . . and a summary of the grounds for [the] expert's opinion” (CPLR 3101

[d] [1] [i]), none of which was timely disclosed to defendant … . Notably, “the burden of providing expert

witness disclosure and setting forth the particular details required by the statute lies with the party seeking to

utilize the expert; it is not opposing counsel's responsibility to cull through [copious medical records] to ferret

out the qualifications of the subject expert, the facts or opinions that will form the basis for his or her testimony

at trial and/or the grounds upon which the resulting opinion will be based”… . Moreover, the record supports

Supreme Court's conclusions that Johanning's expert affidavit, submitted for the first time in opposition to

defendant's motion, offered substantially new medical and scientific theories not reflected in his medical records

… . Thus, the court providently precluded Johanning's expert affidavit and testimony. Colucci v Stuyvesant

Plaza, Inc., 2018 NY Slip Op 00211, Third Dept 1-11-18







17

DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE

FORECLOSURE SALE TOOK PLACE, NOT WHEN THE

JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE

PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK

PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH

DEPT).

The Fourth Department, reversing Supreme Court, determined that the lead-paint exposure complaint should not

have been dismissed because, although the exposure occurred after the judgment of foreclosure on the property,

it occurred before the foreclosure sale, when defendants still held title:

… [D]efendants sought partial summary judgment dismissing those claims because defendants had lost title to

the property by order of foreclosure entered on that date. We agree with plaintiff that the court erred in granting

that part of defendants’ motion.

Although defendants established in support of that part of their motion that a judgment of foreclosure had been

entered, it is well settled that ” [t]he entry of a judgment of foreclosure and sale does not divest the mortgagor

of its title and interest in the property until [a] sale is actually conducted’ ” … . It is undisputed that the actual

sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint,

and thus defendants failed to meet their burden on that part of their motion. Nero v Kendrick, 017 NY Slip Op

08980, Fourth Department 12-22-17

ALTHOUGH THE ASBESTOS LIABILITY RELEASE SIGNED BY

PLAINTIFF’S DECEDENT IN 1997 MENTIONED MESOTHEMIOLA,

THE LANGUAGE OF THE RELEASE WAS DEEMED TO

BE BOILERPLATE WHICH DID NOT PRECLUDE THE INSTANT

SUIT ALLEGING DEATH FROM MESOTHEMIOLA (FIRST DEPT).

The First Department, over an extensive dissent, determined a release plaintiff’s decedent (South) agreed to in

1997 did not preclude the instant suit. South alleged he had been exposed to asbestos made by Texaco on board

ships during his long career in the Merchant Marine. South died of mesothelioma. The 1997 release mentioned

mesothelioma as a possible result of asbestos exposure but the First Department determined it was not clear







18

South knew he was suffering from mesothemiola at the time he signed the release (in return for $1750.00). The

case was analyzed under federal admiralty law law (Jones Act):

… [W]e find that the release does not pass muster. To tease out the true intent South had when he signed the

release, it is necessary to consider the context in which he did so. The 1997 complaint, while making generalized

allegations that South had been exposed to asbestos, is exceedingly vague as to whether he had actually

contracted an asbestos-related disease. To be sure, it mentions a “devastating pulmonary disease Plaintiff now

suffers” and an exhaustive grab-bag of asbestos-related diseases, from asbestosis to mesothelioma to brain

cancer. However, it is impossible to conclude from the complaint that South had actually received a diagnosis.

Indeed, the “meager” consideration he received for resolving the claim suggests that he had not been diagnosed

with an asbestos-related disease, much less one even approaching the severity of the mesothelioma that the

complaint specifically alleges he had. The complaint leaves open that possibility, to the extent it seeks relief for

fear of an asbestos-related disease and not for the disease itself. Accordingly, the risk of contracting an actual

asbestos-related disease remained hypothetical to South, and we decline to read the release as if South understood

the implications of such a disease but chose nonetheless to release Texaco from claims arising from it.

Further, if South had not received a definitive diagnosis at the time the 1997 complaint was filed, then the release,

to the extent it warns him of the possibility of “a new and different diagnosis from the diagnosis as of the date

of this Release,” does not reflect the actual circumstances known to him, since the words “new” and “different”

suggest that South had already been diagnosed with a disease when he executed the release. Rather, the lack of

an actual diagnosis reveals the language in the release as mere boilerplate, and not the result of an agreement the

parameters of which had been specifically negotiated and understood by South. Matter of New York City

Asbestos Litig., 2017 NY Slip Op 06343 First Dept 8-29-17

TRIAL JUDGE’S INSTRUCTIONS TO THE JURORS AFTER THEY

RETURNED AN INCONSISTENT VERDICT WERE INADEQUATE,

NEW TRIAL ORDERED 2ND DEPT.

The Second Department determined the trial judge’s responses to an inconsistent verdict were inadequate and

ordered a new trial , granting defendant’s motion to set aside the verdict. The jury, in this lead-paint poisoning

case, found that the defendant property owner was negligent but that the negligence was not the proximate cause

of the injury. However the jury went on to award plaintiff $250,000 in damages. The judge sent the jury back,

instructing them that they could not award damages unless they found the negligence was the proximate cause







19

of the injuries. The judge did not inform the jury they could adhere to their original finding on proximate cause.

The jury returned a second verdict, this time finding defendant’s negligence was the proximate cause of the

injuries:

Here, the jury’s first verdict was internally inconsistent when it awarded damages to the plaintiff despite finding

that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries … . Thus, the

Supreme Court properly directed the jury to reconsider the verdict. Notwithstanding, the record supports the

conclusion that the second round of deliberations resulted in an unreliable verdict … . Specifically, the court

failed to provide clear instructions to the jury regarding how to proceed with respect to the interrogatories

concerning damages if it again found that the defendant’s negligence was not a substantial factor in causing the

plaintiff’s injuries. This failure may have induced the jury to decide, out of confusion or frustration, to simply

forgo the issue altogether by finding that the defendant’s negligence was a substantial factor in causing the

plaintiff’s injuries. Moreover, the court’s response to the jury note to simply follow the instructions on the new

verdict sheet was inadequate. ” Even after reconsideration by the jury, a trial court has discretion to set aside a

verdict which is clearly the product of substantial confusion among the jurors’” … . Under these circumstances,

the court should have granted that branch of the defendant’s motion which was to set aside the second jury

verdict and directed a new trial … . Cleveland v Djeu, 2017 NY Slip Op 05417, 2nd Dept 7-5-17

DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT

COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE

WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE

EXCLUSION FOR LEAD EMISSIONS CONTROLLED.

The First Department, in an action seeking reimbursement for environmental cleanup costs, determined the

policy exclusion from coverage of lead emissions controlled, even though the soil was also contaminated with

lead paint, which was not excluded from coverage:

In this case, not only did the damage result from different sources, i.e., lead emissions and lead paint, but, also,

one source is excluded from coverage and the other is not. However, the damage resulting from either source is

not readily divisible from the damage resulting from the other. The combined effect of the lead emissions and

the lead paint was soil contamination – of the same soil. To the extent a particular area was contaminated solely

by lead paint, it was not (and could not have been) included in the EPA’s remediation efforts (see 42 USC §

9604). Moreover, claimant would not have had to pay for any damage – including lead paint damage – if not for






20

the accompanying pollution (see 42 USC § 9607). Thus, the entire claim is barred by the pollution

exclusions. Matter of Midland Ins. Co., 2017 NY Slip Op 05171, 1st Dept 6-22-17

INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS

WHICH ALLEGED THE INSURED CONTAMINATED THE AREA

WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN

EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS

MATERIALS, THE ALLEGATION OF A MALODOROUS

CONDITION WAS DEEMED NOT NECESSARILY RELATED TO

HAZARDOUS MATERIALS.

The Fourth Department determined defendant insurance company had a duty to defend in this toxic tort case

brought by residents in the vicinity of plaintiff business (Hillcrest) which allegedly contaminated the area with

hazardous materials. Although the policy excluded coverage for damages caused by hazardous material, the

complaint also alleged Hillcrest caused a “malodorous condition” which, the court reasoned, was not

necessarily related to hazardous materials:

It is well settled that an insurance company’s duty to defend is ” exceedingly broad,’ ” and is broader than the

duty to indemnify … . The duty to defend arises whenever allegations of an underlying complaint suggest ” a

reasonable possibility of coverage,’ ” even if facts outside the pleadings ” indicate that the claim may be meritless

or not covered’ ” … . “[U]pon a motion such as this[,] the court’s duty is to compare the allegations of the

complaint to the terms of the policy to determine whether a duty to defend exists” … .

Moreover, “exclusions are subject to strict construction and must be read narrowly” … . “In order to establish

that an exclusion defeats coverage, the insurer has the heavy burden’ of establishing that the exclusion is

expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable

to the facts” … .

Here, liberally construing the allegations set forth in the second amended complaint in the underlying action …

, we conclude that there is a reasonable possibility of coverage, and that defendant therefore did not meet its

heavy burden of establishing as a matter of law that the hazardous materials exclusion precludes coverage. The

tort plaintiffs alleged in the second amended complaint that the Hillcrest plaintiffs’ operation of the facility

“caused a malodorous condition to be created in the surrounding neighborhood.” Although many of the factual






21

assertions in the second amended complaint allege that the odor resulted from hazardous materials, those are not

the only factual allegations therein. Indeed, foul odors are not always caused by the discharge of hazardous

materials. Inasmuch as there is a reasonable possibility of coverage, the court properly declared that defendant

is obligated to defend the Hillcrest plaintiffs in the underlying tort action and ordered defendant to reimburse

them for the cost of the defense. Hillcrest Coatings, Inc. v Colony Ins. Co., 2017 NY Slip Op 04613, 4th Dept

6-9-17

IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD

NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING

ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN,

THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY

BE RELEVANT TO DEFENDANTS’ NOTICE.

The First Department determined Supreme Court should not have limited discovery in this lead-paint exposure

case to documents relating solely to the apartments where infant plaintiff resided or spent time. The condition of

other portions of the buildings may be relevant to defendants’ notice of the condition of the paint:

The motion court should not have limited defendants’ production of records pertaining to lead-based paint

exposure to the date of exposure and three years prior only in the subject apartments, namely, the apartment in

which the infant plaintiff resided and the apartment, in a different building, where she attended day care. “While

discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with

a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse”

… .

Plaintiffs allege in their complaint that defendants “knew, should have known, and/or had reason to know that

there was deteriorated, defective, flaking, chipping and peeling paint in the Subject Premises [apartments] and

the Subject Building,” which “could be harmful to children” … . Yet, despite this knowledge, the complaint

alleges that defendants were negligent in performing repairs within the plaintiffs’ residence and the apartment

where the infant plaintiff attended day care, and permitted the continued “emission, discharge[], spread and

dissemination of lead based paint . . . thus causing the exposure of the infant plaintiff” to the hazardous conditions

which were a contributing cause of her lead poisoning. Additionally, since plaintiffs had evidence from the New

York City Department of Housing Preservation and Development (HPD), which showed numerous lead paint

violations in the subject buildings, and since evidence of lead paint hazards in one part of a building may be







22

relevant to the issues of defendants’ notice of the condition, duties and obligations to the plaintiffs … , plaintiffs’

demand for production of records for lead-based paint violations in the other apartments in the buildings was

appropriate … . “Knowledge of a dangerous condition in one portion of the structure may have imposed upon

the owners an obligation to examine’ other portions of the structure for defects arising from the same cause, and

to ascertain what was ascertainable with the exercise of reasonable care” … . The fact that plaintiffs may have

been able to access some evidence of lead paint violations in the building from HPD does not preclude plaintiffs

from seeking these records directly from defendants in discovery … . Z.D. v MP Mgt., LLC, 2017 NY Slip Op

04059, 1st Dept 5-23-17

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN

DISMISSED AS TIME-BARRED AT THE PLEADING STAGE,

PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW”

SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of

action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a

question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different

from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently

pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new”

symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and

throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While

there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010

were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would

be improper to dismiss the claim. Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17








23

MOLD-INJURY CAUSE OF ACTION SHOULD NOT HAVE BEEN

DISMISSED AS TIME-BARRED AT THE PLEADING STAGE,

PLAINTIFF ADEQUATELY PLED THE DEVELOPMENT OF “NEW”

SYMPTOMS WITHIN THREE YEARS OF FILING SUIT.

The First Department, reversing Supreme Court, determined plaintiff’s toxic tort (injury from mold) cause of

action should not have been dismissed at the pleading stage on statute of limitations grounds. There was a

question whether the symptoms plaintiff developed within three years of filing suit were qualitatively different

from symptoms experienced more than three years before the suit:

The motion court erred in dismissing plaintiff’s claim for personal injury due to toxic mold. Plaintiff sufficiently

pleaded that, after August 2010 (within three years of commencing this action), he suffered from “new”

symptoms and injuries, including, among other things, eczema and significant fungal growth on his tongue and

throat. Accordingly, defendants failed to make a prima facie showing that this claim is time-barred … . While

there are factual questions as to whether the sinus infections and related symptoms suffered prior to August 2010

were “qualitatively different” from plaintiff’s injuries after August 2010 … , at this procedural juncture it would

be improper to dismiss the claim. Gordon v ROL Realty Co., 2017 NY Slip Op 03851, 1st Dept 5-11-17

HUGE COKE OVENS IN A STEEL PLANT WERE NOT PRODUCTS

IN THE STREAM OF COMMERCE, PRODUCTS LIABILITY

CAUSES OF ACTION AGAINST THE MANUFACTURER OF THE

OVENS IN THIS ASBESTOS CASE SHOULD HAVE BEEN

DISMISSED.

The Fourth Department, reversing Supreme Court, determined the asbestos-related causes of action against

Honeywell as the manufacturer of coke ovens used in a steel plant did not sound in products liability. The huge

coke ovens were deemed to be part of the realty, not products in the stream of commerce. Therefore the products

liability causes of action should have been dismissed:

We begin our analysis by noting that, in Matter of City of Lackawanna v State Bd. of Equalization & Assessment

of State of N.Y . (16 NY2d 222, 226-227), the Court of Appeals concluded, when discussing the nature of these

coke oven batteries, that “[t]here is no doubt that, by common-law standards, these structures would be deemed






24

real property. Their magnitude, their mode of physical annexation to the land and the obvious intention of the

owner that such annexation be permanent would, indeed, compel that conclusion.”

Using the construction of Battery No. 9 as an example, Honeywell’s submissions established that the

construction of a coke oven battery was a multistage process that took place over approximately 18 months. The

overall construction of the battery would have taken approximately 1,460,000 hours of labor to complete over

six phases. * * *

.. .[W]e conclude that service predominated the transaction herein and that it was a contract for the rendition of

services, i.e., a work, labor and materials contract, rather than a contract for the sale of a product … . We further

conclude that a coke oven, installed as part of the construction of the “great complex of masonry structures” at

Bethlehem … , permanently affixed to the real property within a coke oven battery, does not constitute a

“product” for purposes of plaintiff’s products liability causes of action … . Terwilliger v Beazer E., Inc., 2017

NY Slip Op 03629, 4th Dept 5-5-17

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS

LEAD PAINT POISONING CASE SHOULD NOT HAVE BEEN

GRANTED.

The Fourth Department determined the landlord’s motion for summary judgment in this lead paint poisoning

case should not have been granted:

“In order [t]o establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the

landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition’

” … . Where, as here, there is no evidence that the landlord had actual notice, plaintiffs may establish that the

landlord had constructive notice of such condition by demonstrating that the landlord “(1) retained a right of

entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time

before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of

the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” …

. Here, it is undisputed that decedent retained a right of entry and assumed a duty to make repairs, but the

remaining … factors are in dispute.







25

By submitting the deposition testimony of plaintiffs’ mother, wherein she testified that she told [defendant] that

she would be living at the residence with her young children, [defendants] raised a triable issue of fact on the

fifth … factor. Similarly, [defendant’s] own deposition testimony raised a triable issue of fact on the second …

factor inasmuch as he testified that the subject residence was old, that lead was taken out of gasoline in 1970,

and he “must have known” that laws regarding lead started to come out in the 1970s ,,, . Even assuming,

arguendo, that [defendants] met their initial burden on the third and fourth … factors, we conclude that plaintiffs

raised triable issues of fact by submitting ” evidence from which it may be inferred that [defendant] knew that

paint was peeling on the premises’ . . . , and evidence from which a jury could infer that [defendant] knew or

should have known of the dangers of lead paint to children’ ” … . Rodrigues v Lesser, 2017 NY Slip Op 03669,

4th Dept 5-5-17

DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE

NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT

HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE

BEEN DISMISSED.

The Fourth Department determined the lead paint poisoning complaint should have been dismissed because

plaintiff was unable to show defendants had actual or constructive knowledge of the condition and defendants

were not under a duty to test for lead:

Defendants submitted affidavits and deposition testimony establishing that they were not aware of any peeling

or chipping paint on the premises prior to the inspection conducted by the [Monroe County Department of

Health]. Defendants also established that neither plaintiff nor the relatives with whom plaintiff resided at the

premises ever complained to either defendant of any peeling or chipping paint on the premises. Contrary to

plaintiff’s contention, he failed to raise an issue of fact whether defendants were aware of chipping and peeling

paint on the premises … , or whether defendants retained the requisite right of entry to the apartment to sustain

a claim for constructive notice … . Furthermore, “[w]ithout evidence legally sufficient to permit a jury to

rationally infer that the defendant had constructive notice of a dangerous condition, the defendant cannot be held

liable for failure to warn or to remedy the defect” … . Consequently, absent evidence raising a triable issue of

fact whether defendants had actual or constructive notice of a dangerous condition on the premises, the court

erred in denying that part of the motion seeking dismissal of the failure to warn claim. …







26

“The Court of Appeals in Chapman (97 NY2d at 21) expressly decline[d] to impose a new duty on landlords to

test for the existence of lead in leased properties based solely upon the general knowledge of the dangers of lead-

based paints in older homes” … . Taggart v Fandel, 2017 NY Slip Op 02177, 4th Dept 3-24-17

NEW YORK CITY HOUSING AUTHORITY NOT ENTITLED TO

PRESUMPTION BUILDING CONSTRUCTED IN 1974 DID NOT

HAVE LEAD PAINT, SUMMARY JUDGMENT PROPERLY DENIED.

The First Department determined the New York City Housing Authority’s (NYCHA’s) motion for summary

judgment in this lead-paint poisoning case was properly denied. The NYCHA argued that the building was

constructed in 1974 and lead paint was banned in 1960:

Although NYCHA relies on its own testing that was negative for lead paint, DOH’s [Department of Health’s]

lead testing came back positive. NYCHA’s arguments that these were false positives due to the manner in which,

and location from where, the samples were taken is insufficient to disregard them as a matter of law. * * *

Nor did NYCHA prove as a matter of law, that it had no actual or constructive notice of the existence of lead

paint in the building. Pursuant to the City’s Childhood Lead Poisoning Prevention Act (Local Law 1 of 2004),

lead-based paint is presumed to exist in a multiple dwelling unit if the building was built before 1960. Where,

as here, the building is built between 1960 and 1978, the presumption will apply only if the owner knows that

there is lead-based paint, and a child under the age of six lives in the apartment. Although in a pre-1960 building,

paint is presumed to contain lead, the opposite is not true; there is no presumption that paint in a building

constructed after 1960 is not lead-based. Given plaintiff’s claim, that NYCHA maintains the premises and

assumed the duty to have the apartments painted, the absence of any evidence concerning the history of painting

in the subject apartments is insufficient for the court to rule out, as a matter of law, notice. Dakota Jade T. v New

York City Hous. Auth., 2017 NY Slip Op 01987, 1st Dept 3-21-17








27

LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM

WHEN THE SYMPTOMS ARE FIRST DISCOVERED, NOT WHEN

THE CAUSE OF THE SYMPTOMS IS LEARNED.

The Third Department determined an action by a 28-year-old woman alleging lead paint poisoning was time-

barred. Plaintiff was first diagnosed with high levels of lead in 1990. The statute of limitations runs from when

the symptoms are first discovered, not when the cause of the symptoms is learned:

… [D]efendants’ submissions were sufficient to demonstrate that plaintiff was cognizant of her claimed injuries,

or, at a minimum, reasonably should have been, such that the action is barred by the statute of limitations.

Although CPLR 214-c (2) permits an action to proceed within three years from the “discovery of the injury,”

this means the “discover[y of] the primary condition on which the claim is based” … , or, put differently, “the

discovery of the manifestations or symptoms of the latent disease that the harmful substance produced” … . Here,

accepting that lead was the causative harmful substance, plaintiff was aware of her injuries, which first

manifested when she started public education in 1990 and, according to plaintiff, continued throughout her

school years. Although plaintiff argues that her action is timely because she first discovered that she suffered

lead poisoning when her attorney sent a solicitation letter to her mother in 2012, we disagree. Where, as here, a

plaintiff is seeking the benefit of the discovery rule applicable to toxic torts, the statute runs from the date the

condition or symptom is discovered or reasonably should have been discovered, not the discovery of the specific

cause of the condition or symptom … . Vasilatos v Dzamba, 2017 NY Slip Op 01615, 3rd Dept 3-2-17

PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET

ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO

DANGEROUS LEVELS OF ASBESTOS EMANATING FROM

DEFENDANT’S PRODUCTS.

The First Department, in a full-fledged opinion by Justice Saxe, over a two-justice dissenting opinion,

determined the plaintiff’s verdict in this asbestos/mesothelioma case was properly set aside by the trial court.

The First Department held the plaintiff’s experts did not present sufficient proof plaintiff’s decedent was exposed

to dangerous levels of asbestos emanating from defendant’s products while working as an auto mechanic:






28

… [T]he fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of

liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to

sufficient levels of the toxin from the defendant’s products to have caused his disease … . Even if it is not

possible to quantify a plaintiff’s exposure, causation from exposure to toxins in a defendant’s product must be

established through some scientific method, such as mathematical modeling based on a plaintiff’s work history,

or comparing the plaintiff’s exposure with that of subjects of reported studies … .

The evidence presented by plaintiff here was insufficient because it failed to establish that the decedent’s

mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or

distributed by defendant Ford Motor Company. Plaintiff’s experts effectively testified only in terms of an

increased risk and association between asbestos and mesothelioma … , but failed to either quantify the decedent’s

exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford’s

products … . Matter of New York City Asbestos Litig., 2017 NY Slip Op 01523, 1st Dept 2-28-17

ONLY FAILURE TO WARN CAUSES OF ACTION PREEMPTED BY

FEDERAL LAW IN THIS PESTICIDE-INJURY LAWSUIT.

The Fourth Department determined only the failure to warn causes of action in this lawsuit against a pesticide

manufacturer were preempted by federal law. Supreme Court should not have dismissed the negligence,

defective design/manufacture and breach of warranty causes of action. The Federal Insecticide, Fungicide, and

Rodenticide Act (FIFRA) preempted only those causes of action that could result in state labelling requirements:

The preemption provision of FIFRA provides that, “[i]n general[,] . . . a State may regulate the sale or use of any

federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit

any sale or use prohibited by this subchapter” (7 USC § 136v [a]). On the other hand, FIFRA provides that, in

the interest of “[u]niformity[,] . . . [s]uch State shall not impose or continue in effect any requirements for labeling

or packaging in addition to or different from those required under this subchapter” … . * * *

… [W]e conclude that the court erred in dismissing the third, fifth, and sixth causes of action of plaintiff’s

amended complaint, as well as those parts of the fourth cause of action that do not allege a failure to warn.

Plaintiff’s causes of action and claims alleging defendant’s breach of warranty, ordinary negligence, and

defective design and manufacture of its product, i.e., theories unrelated to labeling or packaging, are not

preempted by FIFRA … . Esposito v Contec, Inc., 2017 NY Slip Op 00842, 4th Dept 2-3-17







29

QUESTION OF FACT WHETHER CONTRACTUAL SUBROGATION

PROVISIONS APPLIED TO CERTAIN POLICIES COVERING

INJURY BY LEAD PAINT.

The First Department, in a case reversed and remitted by the Court of Appeals, determined there was a question

of fact whether contractual subrogation provisions applied to certain policies covering injury by lead paint

(remitting the case to Supreme Court). The Court of Appeals had held the antisubrogation rule did not apply to

preclude recovery:

Given the ambiguities in the relevant agreements, we cannot find as a matter of law that the insurers are entitled

to contractually subrogate to ANP’s indemnification rights. On remand, the motion court is to consider the intent

of these provisions in light of the extrinsic evidence. Millennium Holdings LLC v Glidden Co., 2017 NY Slip

Op 00258, 1st Dept 1-17-17

DEFENDANT BUILDING OWNER NOT ENTITLED TO SUMMARY

JUDGMENT IN TOXIC TORT (MOLD EXPOSURE) ACTION ON

STATUTE OF LIMITATIONS GROUNDS.

The Third Department, reversing Supreme Court, determined defendant was not entitled to summary judgment

dismissing plaintiff's toxic tort action on statute of limitations grounds. Plaintiff alleged injury caused by mold

in a building owned by defendant:

… [D]efendant was required to show, at a minimum, that plaintiff's alleged exposure to a toxic substance did

not occur within three years of the commencement of the action … . If defendant exposed or continued to expose

plaintiff to a toxic substance within three years of the commencement of the action, plaintiff could not have

discovered any resulting injuries from such exposure at a time that would be barred by CPLR 214-c (2). Given

that a plaintiff cannot discover the injurious effects of exposure to a toxic substance prior to that exposure

occurring, and considering defendant's concession that plaintiff continued to be exposed to the mold at a time

less than three years prior to the commencement of the action, defendant is not entitled to summary judgment

dismissing the complaint on statute of limitations grounds.







30

Turning to the allegedly injurious exposure taking place more than three years prior to the commencement of

the action, we find that defendant did not prove as a matter of law that plaintiff should have discovered his

allergy and asthma conditions at a time that is barred by CPLR 214-c (2). Although plaintiff exhibited some

symptoms, including skin and eye irritation and tightness in the throat, in the spring and summer of 2002, plaintiff

also explained that such symptoms ceased when he would leave the building at the end of his shifts. Further,

plaintiff averred that he did not seek medical treatment for these symptoms, miss work as a result of the

symptoms or file a workers' compensation claim until late October 2002. Viewing the evidence in the light most

favorable to plaintiff, the symptoms that plaintiff exhibited more than three years prior to the commencement of

the action were too intermittent and inconsequential to trigger the running of the statute of limitations pursuant

to CPLR 214-c (2) … . Malone v Court W. Developers, Inc., 2016 NY Slip Op 03571, 3rd Dept 5-5-16

ANTISUBROGATION RULE DOES NOT APPLY TO A PARTY NOT

COVERED BY THE RELEVANT POLICY.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, reversing the Appellate Division, re:

claims stemming from lead paint exposure, determined the antisubrogation rule did not apply to a party,

ANP, which was not covered by the relevant policy:

… [T]he antisubrogation rule is an exception to the right of subrogation … . Under that rule, “an 'insurer has no

right of subrogation against its own insured for a claim arising from the very risk for which the insured was

covered . . . even where the insured has expressly agreed to indemnify the party from whom the insurer's rights

are derived'” … . In effect, “an insurer may not step into the shoes of its insured to sue a third-party tortfeasor .

. . for damages arising from the same risk covered by the policy” … , even where there is an express subrogation

agreement … . The two primary purposes of the antisubrogation rule are to avoid “a conflict of interest that

would undercut the insurer's incentive to provide an insured with a vigorous defense” and “to prohibit an insurer

from passing its loss to its own insured” … . * * *

The antisubrogation rule … requires a showing that the party the insurer is seeking to enforce its right of

subrogation against is its insured, an additional insured, or a party who is intended to be covered by the insurance

policy in some other way … . Here, as recognized by the courts below, ANP and its predecessor were not insured

under the relevant insurance policies. … Thus, the principal element for application of the antisubrogation rule

— that the insurer seeks to enforce its right of subrogation against its own insured, additional insured, or a party

http://www.courts.state.ny.us/reporter/3dseries/2016/2016_03571.htm





31

intended to be covered by the insurance policy — is absent. Millennium Holdings LLC v Glidden Co., 2016 NY

Slip Op 03543, CtApp 5-5-16

LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN

AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER

WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING

LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS

WHERE A CHILD RESIDES.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissenting opinion by Judge Fahey,

determined a New York City Local Law, which imposed a duty on the landlord to abate lead paint in an apartment

where a child under the age of six “resides,” did not apply to an apartment where a child was cared for 50 hours

per week. Plaintiff’s child was cared for during the day by grandmother in grandmother’s apartment. The child

developed an elevated lead level. In order to sue the landlord, the landlord must have owed a statutory duty to

the child to abate the lead in grandmother’s apartment. The majority held that the term “reside” in the Local Law

did not encompass the child’s presence in the apartment 50 hours a week. Therefore the landlord owed no duty

to the child:

Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a

place as one’s legal domicile” (Merriam Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “to have

a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary

1931 [1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person

keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” … . Black’s Law Dictionary

notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is

a combination of acts and intention. Residence implies something more than mere physical presence and

something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979]). * * *

Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this

understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of

the words it used as well as existing decisional law …, which, in this case, understood residence as something

more than physical presence but something less than domicile — living in a particular place with the intent to

retain it as a residence … . Had the City intended to expand the meaning of the word “reside” to include children







32

who do not actually live in an apartment but spend significant amounts of time there, it could have used words

to that effect … . Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550, CtApp 4-5-16

PLAINTIFF’S EXPERTS DID NOT DEMONSTRATE THEIR

OPINIONS ON THE CAUSE OF PLAINTIFF’S IN UTERO INJURIES

WERE ARRIVED AT USING A GENERALLY ACCEPTED

METHODOLOGY; PLAINTIFF ALLEGED IN UTERO INJURY

FROM GASOLINE FUMES IN CAR MANUFACTURED BY

DEFENDANT BMW.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined the trial court’s preclusion of

plaintiff’s experts’ opinions on causation of plaintiff’s in utero injuries was proper. Plaintiff alleged his severe

birth defects were caused by gasoline fumes breathed by his mother when she drove a car manufactured by

defendant BMW. Plaintiff’s experts attempted to demonstrate a causal connection between breathing the fumes

and the in utero injuries. The Court of Appeals held the experts had not demonstrated their opinions were reached

by employing a methodology generally accepted in the scientific community:

Not only is it necessary for a causation expert to establish that the plaintiff was exposed to sufficient levels of a

toxin to have caused his injuries, but the expert also must do so through methods “found to be generally accepted

as reliable in the scientific community” … . This “general acceptance” requirement, also known as the Frye test,

governs the admissibility of expert testimony in New York. It asks “whether the expert’s techniques, when

properly performed, generate results accepted as reliable within the scientific community generally” … .

Although unanimity is not required, the proponent must show “consensus in the scientific community as to the

[methodology’s] reliability” … .

Plaintiff and his experts have failed to make that showing in this case. Dr. Frazier and Dr. Kramer concluded

that plaintiff was exposed to a sufficient amount of gasoline vapor to have caused his injuries based on the reports

by plaintiff’s mother and grandmother that the smell of gasoline occasionally caused them nausea, dizziness,

headaches and throat irritation. Plaintiff and his experts have not identified any text, scholarly article or scientific

study, however, that approves of or applies this type of methodology, let alone a “consensus” as to its reliability.

Therefore, the courts below properly granted defendants’ motion to preclude their testimony at trial. Sean R. v

BMW of N. Am., LLC, 2016 NY Slip Op 01000, CtApp 2-11-16








33

DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED

SUMMARY JUDGMENT IN THIS LEAD-PAINT-INJURY CASE,

DEFENDANT FAILED TO AFFIRMATIVELY DEMONSTRATE,

INTER ALIA, LACK OF ACTUAL OR CONSTRUCTIVE NOTICE.

The Fourth Department determined defendant landlord should not have been granted summary judgment in this

lead-paint-injury action. [The case presents another example of a defendant’s failure to affirmatively address

all possible theories of recovery in summary-judgment-motion papers.] Defendant failed to demonstrate, inter

alia, the absence of a hazardous condition and her lack of actual or constructive notice of the condition. On the

issue of constructive notice, the court wrote:

In Chapman, the Court of Appeals [92 NY2d 9] addressed constructive notice, writing that “a triable issue of

fact [on notice] is raised when [the evidence] shows that the landlord (1) retained a right of entry to the premises

and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based

interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-

based paint to young children and (5) knew that a young child lived in the apartment” (id. at 15). Here, it is

undisputed that defendant retained a right of entry and assumed a duty to make repairs; that she knew that the

residence was constructed before lead-based paint was banned; and that she knew that young children lived in

the apartment. Rodrigues v Lesser, 2016 NY Slip Op 00836, 4th Dept 2-5-16

Criteria for Lead-Paint-Exposure Cause of Action Described

In finding plaintiff had raised a question of fact whether one of the defendant landlords was aware of peeling

lead paint in the apartment (because of alleged complaints about it), the Fourth Depatment explained the

elements of a lead-paint-exposure cause of action:

” To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord

had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition,’ ” and

failed to do so … . Thus, to meet their burden on their motions for summary judgment with respect to the

premises liability causes of action, defendants were required to establish that they “had no actual or constructive






34

notice of the hazardous lead paint condition prior to an inspection conducted by the [Oswego] County

Department of Health” (…see generally Chapman v Silber, 97 NY2d 9, 15). … “[T]he factors set forth in

Chapman . . . remain the bases for determining whether a landlord knew or should have known of the existence

of a hazardous lead paint condition and thus may be held liable in a lead paint case”… . Kimball v

Normandeau, 2015 NY Slip Op 07357, 4th Dept 10-8-15

CPLR 214-c, Which Starts the Statute of Limitations Upon Discovery of

the Injury, Applies Only to Toxic Torts—The Statute Does Not Apply to

an Action Seeking Damages for the Allegedly Negligent Approval (by the

Town) of a Defective Septic System

Plaintiffs sought replacement-cost damages for a defective septic system, alleging the town negligently approved

the system prior to plaintiffs’ purchase of the property. Although the three-year statute of limitations for

negligence had passed, the plaintiffs argued that CPLR 214-c applied. CPLR 214-c applies to latent defects and

the statute starts running upon discovery of the injury. The Fourth Department determined CPLR 214-c did not

apply, noting that the Court of Appeals has held the statute applies only to injury from “toxic torts:”

CPLR 214-c (1) provides that “the three-year period within which an action to recover damages for personal

injury or injury to property caused by the latent effects of exposure to any substance or combination of

substances, in any form, upon or within the body or upon or within property must be commenced shall be

computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of

reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” … .

Here, plaintiffs do not seek “damages for personal injury or injury to property” (CPLR 214-c [1]); rather, they

seek to be compensated for the cost of replacing an allegedly defective septic system. Thus, section 214-c is

inapplicable to this action … . Moreover, the Court of Appeals, in interpreting section 214-c, has made clear that

it applies only to toxic torts …, and plaintiffs’ claims have nothing do to with toxic substances. Instead, plaintiffs

merely allege that the septic system was defective and that defendants failed to identify the defects during their

inspections. We thus conclude that the court properly determined that the causes of action against the moving

defendants are time-barred. Clendenin v Town of Milo, 2015 NY Slip Op 04976, 4th Dept 6-12-15








35

Landlord Failed to Eliminate Triable Issues of Fact Concerning Whether

He Had Constructive Notice of the Presence of Lead Paint

In the context of a summary judgment motion, the Fourth Department determined the landlord did not meet his

burden of demonstrating he did not have constructive notice of the presence of lead paint:

Where, as here, there is no evidence that the landlord had actual notice of the existence of a hazardous lead paint

condition, plaintiff may establish that defendant had constructive notice of such condition by demonstrating that

the landlord “(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the

apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was

peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young

child lived in the apartment” (Chapman v Silber, 97 NY2d 9, 15). Defendant conceded that he was aware that a

young child lived in the subject premises, and we conclude that he failed to meet his burden on the four remaining

Chapman factors… . Wood v Giordano, 2015 NY Slip Op 03984, 4th Dept 5-8-15

Criteria for Liability for Lead Paint Exposure Described

Reversing Supreme Court, the Second Department determined defendants in a lead paint case failed to

demonstrate they did not have notice of the dangerous condition. The court explained the relevant criteria:

Under New York common law, a landowner “has a duty to maintain his or her premises in a reasonably safe

condition” … . “[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon

the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for

such a period of time that, in the exercise of reasonable care, it should have been corrected” … . Constructive

notice of a hazardous lead-based paint condition may be established by proof “that the landlord (1) retained a

right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed

at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4)

knew of the hazards of lead-based paint to young children, and (5) knew that a young child lived in the

apartment” … . Greene v Mullen, 2015 NY Slip Op 02729, 2nd Dept 4-1-15







36

Plaintiff’s Motion to Appoint a Temporary Administrator after

Defendant’s Death Properly Denied—Relevant Law Explained

In affirming the denial of plaintiff’s motion to appoint a temporary administrator after the defendant in a lead-

paint action had died, the Second Department explained the relevant law:

“If a party dies and the claim for or against him [or her] is not thereby extinguished the court shall order

substitution of the proper parties” (CPLR 1015[a]…). “A motion for substitution may be made by the successors

or representatives of a party or by any party” (CPLR 1021…). “Generally, the death of a party divests a court of

jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal

representative for the decedent” … .

In most instances a personal representative appointed by the Surrogate’s Court should be substituted in the action

to represent the decedent’s estate … . However, in the event no such representative exists, an appropriate

appointment may be made by the Supreme Court and that individual may be substituted in place of the decedent

… . Indeed, “[t]he Supreme Court is a court of general jurisdiction with the power to appoint a temporary

administrator, and may do so to avoid delay and prejudice in a pending action” … . The determination of whether

to exercise its authority to appoint a temporary administrator is committed to the sound discretion of the Supreme

Court, and will not be disturbed by this Court so long as the determination does not constitute an improvident

exercise of discretion … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying the

plaintiff’s motion, inter alia, to appoint a temporary administrator (see CPLR 1015[a]…). Although in most

instances the personal representative of the decedent’s estate should be substituted, here, the plaintiff failed to

demonstrate what steps she had taken to secure the appointment of a personal representative in the appropriate

Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible … . Furthermore,

the plaintiff did not contend that this action, which is based on events occurring nearly 20 years ago, was trial-

ready … . Under the circumstances presented here, the plaintiff failed to adequately demonstrate why the

appointment of a temporary administrator was needed to avoid undue delay and prejudice. Lambert v Estren,

2015 NY Slip Op 02454, 2nd Dept 3-25-15







37

Successive Tenants of Same Apartment Limited to a Single Policy Limit

Re: Recovery for Lead Paint Exposure

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a dissent, determined that the children in

two families who were successive tenants of the same apartment were restricted to recovery for exposure to lead

paint to a single policy limit, and not multiple policy limits based upon annual policy renewals. The two families’

recoveries were limited to the single $500,000 policy limit:

In September 1991, Allstate Insurance Company issued a policy of liability insurance to the landlord of a two-

family house in Rochester. The policy was renewed annually for the years beginning September 1992 and

September 1993. It stated on the declarations page a $500,000 limit for “each occurrence,” and contained the

following noncumulation clause:

“Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total

liability under the Family Liability Protection coverage for damages resulting from one accidental loss will not

exceed the limit shown on the declarations page. All bodily injury and property damage resulting from one

accidental loss or from continuous or repeated exposure to the same general conditions is considered the result

of one accidental loss.”

Felicia Young and her children lived in one of the two apartments in the house from November 1992 until

September 1993. In July 1993, the Department of Health notified the landlord that one of the children had been

found to have an elevated blood lead level and that several areas in the apartment were in violation of State

regulations governing lead paint. The Department listed the violations and directed the landlord to correct them.

The landlord made some repairs, and the Department advised him in August 1993 that the violations “have been

corrected.”

After the Young family moved out of the apartment in September 1993, Lorenzo Patterson, Sr. and Qyashitee

Davis moved in with their two children. Again a child was found to have an elevated blood lead level, and the

Department of Health sent another letter saying that violations had been found and instructing the landlord to

correct them. (This letter was sent in December 1994, but the parties seem to assume that the elevated readings

resulted at least in part from events on or before September 29, 1994, the last day of Allstate’s coverage.) * * *

Young’s children and Nesmith’s grandchildren were exposed to the same hazard, lead paint, in the same

apartment. Perhaps they were not exposed to exactly the same conditions; but to say that the “general conditions”

were not the same would deprive the word “general” of all meaning. Nesmith argues that, because the landlord





38

made an effort to correct the problem after Young’s children were exposed and before Nesmith’s grandchildren

moved in, the “conditions” that injured her grandchildren must have been new ones. But she makes no claim,

and the record provides no basis for inferring, that a new lead paint hazard had been introduced into the

apartment. The only possible conclusion from this record is that the landlord’s remedial efforts were not wholly

successful, and that the same general conditions — the presence of lead paint that endangered children’s health

— continued to exist. Because Young’s children and Nesmith’s grandchildren were injured by exposure to the

same general conditions their injuries were part of a single “accidental loss,” and only one policy limit is

available to the two families. Nesmith v Allstate Ins Co, 2014 NY Slip Op 08217, CtApp 11-25-14

In a Lead-Paint-Injury Case, Non-party Medical Records Not

Discoverable (Re: Plaintiff’s Mother and Siblings)–Non-party Academic

Records Should Be Submitted for In Camera Review–Mother Cannot Be

Compelled to Submit to an IQ Test

The Third Department determined the extent of allowable discovery re: non-parties in a lead-paint-injury

case. The defense sought medical and academic records of plaintiff’s mother and siblings, all non-parties, and

sought to compel the mother to undergo an IQ test. The Third Department held that the non-party medical

records were not discoverable (except for the mother’s records during pregnancy), the non-party academic

records should be submitted to the court for in camera review, and the mother should not be compelled to undergo

an IQ test:

A subdivision of the main disclosure statute provides that “[u]pon objection by a person entitled to assert the

privilege, privileged matter shall not be obtainable” (CPLR 3101 [b]). Medical records are protected by a doctor-

patient privilege and cannot be disclosed without consent or a waiver of the privilege (see CPLR 4504 [a]…). A

plaintiff waives the privilege by commencing an action that places his or her mental or physical condition at

issue, but nonparties are not subject to having their medical histories made public merely because a relative

commences an action … . As plaintiff’s mother and siblings did not consent and have not waived that privilege,

Supreme Court should not have ordered disclosure of their medical records … . An exception exists for the

mother’s medical records during the time of her pregnancy with and birth of plaintiff, but plaintiff has already

provided an authorization for those records … .






39

Regarding the mother’s and siblings’ academic records, defendants have submitted an expert affidavit, as noted

above, indicating that those records are relevant and necessary to determine whether other factors caused

plaintiff’s injuries … . Considering that these records are private but not privileged, Supreme Court reasonably

balanced defendants’ need for them and their possible relevance against the burden to these nonparties from

disclosure, requiring that the siblings’ records be produced to the court for an in camera review … . The mother’s

academic records should similarly be submitted to the court for review and redaction of any privileged material.

…

Defendants’ need for her IQ test results, however, are not outweighed by the burden on her to undergo such a

test, as well as the potential for extending this litigation by focusing on information extraneous to plaintiff’s

condition, such as all of the factors contributing to the mother’s IQ … . Considering the private and personal

nature of the information sought and the potential delay due to myriad collateral issues, defendants should not

be able to compel plaintiff’s mother, a nonparty, to undergo an IQ test … . Perez v Fleischer, 2014 NY Slip Op

008101, 3rd Dept 11-20-14

Summary Judgment Properly Granted to Property Owner in Lead-Paint-

Injury Case

The Fourth Department determined the property owner was entitled to summary judgment in a lead-paint-injury

case. There was no showing defendant had notice of the presence of lead paint hazard or that defendant was

negligent in abating the lead paint hazard:

“In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had

actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to

do so” … . We conclude that plaintiffs failed to meet their initial burden of establishing that defendants had

actual or constructive notice … . Faison v Luong, 2014 NY Slip Op 07794, 4th Dept 11-14-14








40

County Water Authority Had Standing to Bring Action Based Upon the

Chemical Contamination of Its Wells—CPLR 214-c Governs Actions

Based Upon Contamination—Action Was Untimely

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined that the plaintiff Suffolk

County Water Authority (SCWA) had standing to bring a negligence/nuisance/trespass/products liability action

against defendants alleging contamination of wells caused by chemicals (PCE and TCE). However, the court

determined the action was barred as untimely by CPLR 214-c. In the course of the opinion, the court explained

what the “two-injury” rule is in the context of a continuing wrong. The court determined that CPLR 214-c was

designed to eliminate the continuing-wrong statute of limitations calculation in contamination cases. In addition,

the court explained the difference between latent and patent injuries with respect to CPLR 214-c:

Generally, a plaintiff has standing to sue if it has suffered an injury in fact … in some way different from that of

the public at large and within the zone of interests to be protected by relevant statutory and regulatory provisions

… .

We reject the movants’ contention that the SCWA lacked standing to seek damages for injury to 115 wells where

the PCE contamination level fell below the MCL (federal and state “maximum contamination level” for PCE).

The MCL is only a regulatory standard which governs conduct in supplying water to the public. While the MCL

may be helpful in determining whether an injury has occurred, the MCL does not set a bar below which an injury

cannot have occurred … . Similarly, the MCL does not define whether an injury has occurred, since

contamination below that level could result in some injury, such as increased monitoring costs … . It is

undisputed that the SCWA has expended resources in its effort to address the widespread contamination, even

at wells where the contamination has not risen to or exceeded the MCL. Thus, the SCWA has alleged that it has

suffered an injury for which it may seek redress, irrespective of the level of contamination. * * *

CPLR 214-c was enacted in 1986 to ameliorate the effect of a line of cases which held that toxic tort claims

accrued upon the impact or exposure to the substance, even though the resulting injury or illness did not manifest

itself until some time later … . CPLR 214-c provides for a three-year limitations period for actions to recover

damages for injuries to person or property “caused by the latent effects of exposure to any substance or

combination of substances, in any form, upon or within the body or upon or within property” (CPLR 214-c[2]).

The three-year period is “computed from the date of discovery of the injury by the plaintiff or from the date





41

when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff,

whichever is earlier” (CPLR 214-c[2]…). For the purposes of CPLR 214-c, “discovery occurs when, based upon

an objective level of awareness of the dangers and consequences of the particular substance, the injured party

discovers the primary condition on which the claim is based’” … . Suffolk County Water Auth v Dow Chem

Co, 2014 NY Slip Op 05420, 2nd Dept 7-23-14

Absentee Landlord Granted Summary Judgment in Lead-Paint Exposure

Case—No Constructive Notice

The Fourth Department, over a dissent, determined summary judgment was properly granted to an absentee

landlord in a lead-paint exposure case. The landlord had never seen the property:

Defendant and his wife acquired the property by deed in January 1993, and they took title to the property as

tenants by the entirety. Defendant’s wife died in 2004. Defendant testified at his deposition that his participation

in the acquisition of the property was as an accommodation to the financial situation of his wife’s son and her

nephew. Defendant denied that he had anything to do with the property and asserted that he was only an owner

“on paper.” Defendant never saw the property, never went there, never received any rent, did not know that a

child resided there and never received any correspondence related thereto. Defendant did not execute any lease

agreements with respect to the property. “To establish that a landlord is liable for a lead-paint condition, a

plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to

remedy, the hazardous condition” … . Hamilton v Picardo, 2014 NY Slip Op 04290, 4th Dept 6-13-14

Plaintiffs in Lead-Paint Exposure Cases Are Not Required to Hire an

Expert to Link Injuries to Lead-Paint Exposure at the CPLR 3121 (a)

Discovery Stage—However, Plaintiffs Must Provide Medical Reports

Which Include a “Recital of the Injuries and Conditions as to which

Testimony Will Be Offered at the Trial”

The Court of Appeals, in a full-fledged opinion by Judge Lippman, reversed the appellate division and

determined the trial judge abused his discretion in the discovery phase of a lead-paint exposure case. The trial








42

judge ordered the plaintiffs “to produce, prior to the defense medical examinations, medical reports detailing a

diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to

plaintiffs' exposure to lead-based paint.”

CPLR 3121 (a) provides that when a party's mental or physical condition is in issue, any other party may serve

on the party whose condition is in controversy notice “to submit to a physical, mental or blood examination by

a designated physician.” A noticed party then is obligated under 22 NYCRR 202.17 (b)(1) to deliver:

“copies of the medical reports of those medical providers who have previously treated or examined the party

seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered

at the trial, referring to and identifying those X-ray and technicians reports which will be offered at the trial,

including a description of the injuries, a diagnosis and a prognosis.”

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the

doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs

allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical

evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged

injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who

have “previously treated or examined” them. They argue that they are not required to document or create medical

evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to

hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree.

Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR

202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits.

Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor.

Plaintiffs therefore need only produce reports from medical providers who have “previously treated or

examined” them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently

exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and

examining medical providers — the reports “shall include a recital of the injuries and conditions as to which

testimony will be offered at the trial” (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot

avoid disclosure simply because their treating or examining medical providers have not drafted any reports





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within the meaning of rule 202.17 (b) (1) … . If plaintiffs' medical reports do not contain the information required

by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)…

. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the

rule (see 22 NYCRR 202.17 [j]). Hamilton v Miller, 2014 NY Slip Op 04230, CtApp 6-12-14

Question of Fact About Property Owner’s Constructive Notice of Lead

Paint/Tenant by the Entirety Could Be Vicariously Liable

The First Department determined questions of fact had been raised about whether defendant property owner,

Robert Dvorak, had constructive notice of lead paint on the premises. The court noted that the complaint should

not have been dismissed against Diane Dvorak who also owned the property as a tenant by the entirety:

The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had

constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered

the premises, made repairs, knew that the building was constructed before the banning of lead-based interior

paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young

children, and knew that a young child lived in the house …. .The motion court should not have granted summary

judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held

vicariously liable for his actions toward the property… . Rivera v Neighborhood Partnership Hous Dev Fund Co

Inc, 2014 NY Slip Op 02873, 1st Dept 3-29-14

Corporate Officer Not Liable in Lead Paint Exposure Case Under

“Commission of a Tort” Doctrine for Nonfeasance/No Evidence of

Malfeasance or Misfeasance

The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead

paint exposure case. The court explained when the “commission of a tort” doctrine applies to corporate officers:

“The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for

misfeasance or malfeasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate

officer for nonfeasance, i.e., a failure to act” … . Such misfeasance may include exacerbating a hazardous lead








44

paint condition by negligently attempting to correct it … . Here, defendant met his initial burden by presenting

“evidence that, if uncontroverted, would have established that [he] did not personally participate in malfeasance

or misfeasance constituting an affirmative tortious act” … . Plaintiff failed to raise an issue of fact in response,

inasmuch as he submitted no evidence that defendant affirmatively created the dangerous lead condition at the

property or did anything to make it worse; at most, defendant merely failed to remedy the condition. We thus

conclude that he cannot be held individually liable to plaintiff in this action. Lloyd v Moore…, 200, 4th Dept 3-

28-14

Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning

Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion

to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or

negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics

argument should be rejected. In addition the Fourth Department explained the notice criteria in lead-paint cases:

We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to

“preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics

alternative and/or negating cause[s]” must be dismissed. “ ‘[A]n evidentiary ruling, even when made in advance

of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by

permission’ ”… .

[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family

history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay. I

acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a

conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose

here. To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions

at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a

eugenics argument, cannot be countenanced and is something I categorically reject.

[With respect to notice, the Fourth Department explained:] . “It is well settled that in order for a landlord to be

held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that

the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-28-14/PDF/0200.pdf

http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-28-14/PDF/0200.pdf





45

reasonable care, it should have been corrected” … . Under the circumstances of this case, we conclude that there

is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment

“for such a period of time that, in the exercise of reasonable care, it should have been corrected” … With respect

to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that

constructive notice of a hazardous, lead-based paint condition may be established by proof “that the landlord (1)

retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was

constructed at a time before leadbased interior paint was banned, (3) was aware that paint was peeling on the

premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in

the apartment.” Heyward v Shanne, 1358, 4th Dept 2-7-14

No Constructive Notice of Peeling Paint in Lead-Paint Exposure Cases

The Third Department determined summary judgment was properly granted to defendants in a lead-paint

exposure case. Plaintiff failed to raise a question of fact about whether the defendants were aware of peeling

paint in the apartment:

To raise a triable issue of constructive notice, plaintiff was required to show “that the landlord (1) retained a

right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed

at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4)

knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.

Plaintiff failed to make that showing with respect to the Chapman factor requiring defendants’ awareness that

paint was peeling in the apartment. Cunningham v Keehfus, 516733, 3rd Dept 12-26-13

The Third Department affirmed the same result in another lead-paint exposure case:

Here, defendant acknowledged that he knew that the building was old, was aware that young children lived in

the basement apartment, had the right to enter the apartment to make repairs, and did so. However, he testified

that he “didn’t know anything about lead poisoning” before the October 1990 inspection, did not remember

peeling or chipping paint in the apartment and did not know that lead hazards had twice been identified in the

building before he purchased it. This testimony was sufficient to establish on a prima facie basis that defendant

did not have constructive notice of a lead hazard before October 1990, shifting the burden to plaintiff to establish

triable issues of fact… .







46

…[T]he record includes no evidence that the prior owner told defendant about the building’s previous lead

problems or that defendant otherwise had an opportunity to learn about them; the mere fact that they were

acquainted does not give rise to a triable issue of fact. Nor was it shown that defendant – who testified that his

education and reading skills were limited – was sophisticated in the ownership and maintenance of rental

properties or otherwise experienced in areas that should have familiarized him with lead poisoning issues …

Accordingly, plaintiff failed to establish the existence of a triable issue of fact as to whether defendant had

constructive notice of a lead hazard before the October 1990 inspection… . Williams v Thomas, 516741, 3rd

Dept 12-26-13

Numerous Core Issues Discussed in Complicated Case Stemming from

Mold in a Complex of Apartments Which Necessitated Termination of All

the Leases

In perhaps the most complicated decision this writer has ever read, the Second Department reversed many of

Supreme Court’s rulings and sorted out the defense and indemnification responsibilities for an astounding array

of insurance companies. The lawsuits arose from the intrusion of water and mold into a complex of rental

apartments causing the termination of all the leases. The general contractor and a large number of subcontractors

all had insurance policies issued by many different companies. Among the issues addressed: (1) “[C]ontract

language that merely requires the purchase of insurance will not be read as also requiring that a contracting party

be named as an additional insured”…; (2) Whether damage from water intrusion and mold is an “occurrence”

within the meaning of the policy-language; (3) Whether the law of the insured’s domicile should apply; (4) The

use of extrinsic evidence to determine an insurer’s duty to defend; and (5) Disclaimer based upon late

notice. QBE Ins Corp v Adjo Contr Corp, 2013 NY Slip Op 08238, 2nd Dept 12-11-13

Proof of Normal Notification Procedure Sufficient to Demonstrate

Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy

Over a two-justice dissent, the Fourth Department determined defendant (Donnelly) was notified of an

amendment to his insurance policy which disclaimed coverage for injury related to the presence of lead paint

(and therefore plaintiff-insurer was not obligated to defend or indemnify defendant in a lead-paint-injury








47

case). The court also determined that the lead-paint-injury exclusion did not violate public policy. With respect

to the proof defendant was notified of the amendment, the court deemed evidence of the usual notification

procedure sufficient:

…[W]e conclude that the documents established as a matter of law that the lead exclusion was properly added

to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not

submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall

receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure

designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that

Donnelly received the notice … . …[T]he evidence submitted by plaintiff established that the “office practice

[was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly

addressed and mailed” … . Specifically, the evidence established the procedure used by plaintiff for generating

notices whenever an insurance policy was amended, and the documentary evidence established that a notice was

generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition,

plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice

was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and

the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located

adjacent to plaintiff’s parking lot. Preferred Mutual Insurance Company v Donnelly…, 857, 4th Dept 11-8-13

Disclosure Appropriate in Lead Paint Case, Physician-Patient Privilege

Waived

In a lead-paint-exposure case the Fourth Department reversed Supreme Court’s ruling that defendants were not

entitled to full disclosure of records based on the physician-patient privilege. The Fourth Department determined

the privilege had been waived:

In view of the injuries alleged by plaintiff, we conclude that she waived her physician-patient privilege and any

related privileges with respect to the records sought, and that those records may be material and necessary to the

defense of the action … . There may be information in plaintiff’s records, however, that is irrelevant to this

action, and there are legitimate concerns with respect to “the unfettered disclosure of sensitive and confidential

information” contained in those records … . Thus, here, as in Dominique D. v Koerntgen (107 AD3d 1433,

1434), we modify the order by denying defendants’ motion and cross motion to the extent that they seek






48

authorizations for the full disclosure of the records sought and by granting plaintiff’s cross motion to the extent

that it seeks an in camera review of the records, and we remit the matter to Supreme Court for such in camera

review and the redaction of any irrelevant information… . Adams v Daughtery…, 907, 4th Dept 10-4-13

“Negligent Ownership and Maintenance” vs “Negligent Abatement”

Causes of Action in Lead-Paint Case

In a lead-paint damages case, the Fourth Department determined the landlord was entitled to summary judgment

on the cause of action alleging negligent ownership and maintenance (lack of notice), but was not entitled to

summary judgment on the cause of action alleging negligent abatement of the hazard:

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had

actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition” … .Defendant

met his burden of establishing that he had no actual or constructive notice of the hazardous lead paint condition

prior to an inspection conducted by the county department of health, and plaintiff failed to raise a triable issue

of fact… .. Contrary to defendant’s contention, however, the court properly denied that part of his cross motion

seeking summary judgment dismissing the second cause of action, which alleges negligent abatement of the

lead-based paint hazard. Defendant failed to establish his prima facie entitlement to judgment as a matter of law

with respect to that cause of action. Pagan v Rafter, 210, 4th Dept, 6-14-13

Past Psychological Records Deemed Relevant in Lead-Paint Injury Case

Where Psychological Injury Alleged

In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury

stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated

with exposure to lead paint. The Court ordered an in camera inspection of the records to weed out irrelevant

information. Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13








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Only Sellers’, Not Buyers’, Agent Can Be Liable for Failure to Disclose

Lead Paint Dangers

In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act

(RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted

that only seller’s agents, not buyer’s agents, can be held liable under the act:

The statutory language of the RLPHRA “is unambiguous with regard to the liability of real estate agents; only

seller’s agents are liable” for the failure to ensure compliance with its provisions… . Contrary to the plaintiffs’

contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to

impose a duty on an agent or representative of a buyer… . Accordingly, the Supreme Court should have granted

the …defendants’ motion to dismiss the complaint insofar as asserted against them. Felix v Thomas R

Stachecki Gen Contr, LLC, 2013 NY Slip Op 03966, 2nd Dept, 6-5-13

Notice Element of Lead-Paint Injury Cause of Action Explained

In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained

the “notice” elements as follows:

With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting

from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or

constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it

should have been corrected” …. In this context, constructive notice may be demonstrated by a showing

“that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2)

knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was

aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children

and (5) knew that a young child lived in the apartment” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13








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“Speaking Authorizations” Re Non-Party Healthcare Providers in Lead-

Paint Injury Case Okay/But Not Okay for Non-Party Educators

In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to

preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-

called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers

about the plaintiff’s injuries. However, the Fourth Department did not agree with Supreme Court’s grant of

the same motion with respect to non-party educators (two justices dissented on that issue):

In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard

to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does

not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend

Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers.

The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply

with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an

adverse party’s treating physician. Defendant made no showing that the discovery devices available under

the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the

necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13

Okay to Compel Plaintiff to Produce Medical Reports Linking Injury to

Lead Paint or Be Precluded from Introducing Such Evidence

In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries

to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants

moved to preclude proof of plaintiff’s injuries in the absence of such medical reports. Supreme Court granted

the defendant’s motion and the Fourth Department affirmed. In addition, the Fourth Department noted that

Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard

Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because

plaintiff was not “relying” on the statute. Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13







51

Plaintiff Was Unable to Demonstrate Landlord Had Knowledge of

Presence of Lead Paint

Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint

in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified

the dismissal of the lead-paint-injury complaint. The Third Department explained:

“[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises,

the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period

of time that, in the exercise of reasonable care, it should have been corrected” ….To establish constructive

notice in the context of a lead paint case, the plaintiff must show “that the landlord (1) retained a right of entry

to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before

lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the

hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Hines

v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13

In Lead Paint Exposure Case, Court’s Order to Provide Medical Report

Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of

discovery, to produce a medical report linking the injuries to lead exposure before depositions. The Fourth

Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the

very outset of the litigation:

Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion

in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by

plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are

conducted. As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological,

psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff







52

disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury

or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s

mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual

injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused

by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood]

lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that

CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not

preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59,

4th Dept, 4-26-13

Question of Fact Raised About Owner’s Knowledge of Presence of Lead

Paint

The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the

apartment had constructive notice of the presence of lead paint:

The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had

constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified

that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or

chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted

himself as to whether he knew that a child lived in the apartment. Regarding the other [Chapman v Silber (97

NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make

repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses

like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice …

. Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13








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Owner/Officer of Company Can Be Personally Liable for Toxic Emissions

Released by Company.

Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions

released by defendant Tonawanda Coke Corporation. An owner and officer of Tonawanda Coke (Crane) moved

to dismiss the cause of action suing him in an individual capacity. In affirming the denial of that motion, the

Fourth Department wrote:

Although “[a] corporate officer is not held liable for the negligence of the corporation merely because of his

official relationship[,]” that officer will be held liable if it is established “that the officer was a participant in the

wrongful conduct” … .Plaintiffs alleged in the first amended complaint that Crane was or should have been

aware of the relevant environmental regulations, was ultimately responsible for reporting benzene emissions to

the Environmental Protection Agency, and personally supervised and exercised control over Tonawanda Coke’s

operations … .Thus, plaintiffs have alleged that Crane actively participated in the wrongful conduct by approving

the policies that allegedly caused the environmental contamination … . Abbot v Tonawanda Coke Corporation,

et al, 155, CA 12-01384, Fourth Dept. 3-15-13

Single Policy Limit Held to Apply to Successive Tenants in Lead-Paint-

Tainted Apartment.

In a full-fledged opinion by Justice Smith, the Fourth Department discussed the liability-limits of an insurance

carrier for injuries caused to children by lead paint in the insured apartment. The policy, which had a $500,000

limit, included the following sentence: “All bodily injury and property damage resulting from one accidental

loss or from continuous or repeated exposure to the same general conditions is considered the result of one

accidental loss.” Children in one family who lived in the apartment suffered injury from lead paint and the

carrier paid out $350,000. Subsequently children in another family who moved into the same apartment suffered

injury from lead paint. The question before the Court was whether the liability to the second family was capped

at $150,000 because the total liability of the carrier could not exceed $500,000, or whether the injury to the

second family triggered another $500,000 in policy coverage. The Fourth Department determined the carrier

was liable for a total of $500,000 for the injuries to both families and the second family could recover no more

than $150,000. Nesmith, et al v Allstate Insurance Company, 1252, CA 12-00182 Fourth Dept. 2-1-13




New York Appellate Digest. LLC · digest. llc “toxic torts” decision-summaries posted on new...

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