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Baskerville v Christ Temple of the Apostolic Faith, Inc. 2010 NY Slip Op 30389(U) March 1, 2010 Supreme Court, New York County Docket Number: 100257/06 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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NNED ON 31212010

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

PRESENT:

PART

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ndex Number : 100257/2006 3ASKERVlLLE, ALLEN
IS

INDEX NO.
MOTION DATE MOTION SEO. NO.

ZHRIST TEMPLE
Sequence Number : 003
SUMMARY JUDGMENT

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MOTION CAL. NO.

The following papers, numbered 1 to

were read on this motion to/for

Notice of Motion/ Order t o Show Cause

- Affidavits

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Answering Affidavits Replying Affldavlts

- Exhibits

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Cross-Motion:

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Upon the foregoing papers, it

i ordered that this motion s

Dated:

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Check one:

lpropriate : Check if ap

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DISPOSlTlON DO NOT POST

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NON-FINAL DISPOSITION c1 REFERENCE

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Plaintiffbrings this action for personal injuries allegedly sustained whcn he was exposed to toxic mold spores whilc living at the preniiscs located at 12 West 1 2gt" Street Apartment 12 in the County and State of New York From Fcbruary 1, 2003, until he was evicted in March 2005. Defendant Christ Temple oftlie Apostolic Faith, Inc. ("Temple"), the owner of the preiiiiscs, moves [or summary judgment pursuant to CPLR 32 12 and pursuant to CPLR 3 126, to preclude plaintiff from offering any evidence regarding inolci testing. Plaintir opposcs. The parties appearcd for oral argument in front of the Honorable Eileen A . Rakowcr on February 24, 20 10. Thc subject prcrnises is described by Valerie Ross, Church Administrator, as a "large white house . . . approximately 6,000 square feet, thrce floors above ground and . . . a basement." Each tenant was assigned his or her own bedroom and there were "comniunify bathrooms on each floor in the hallway" (with the exception of a few apartments which had private bathrooms). Ms. Ross approximates that there arc about fourteen bedrooms in the house. On thc first floor there is a kitchen and dining area. In or around 1997 or 1998, Bishop Bonncr, the Senior Pastor ofTernplc, instituted a program to offer housing to cldei-ly church members. Evcnhially, Temple sought to disband this arrangcment, and instituted proceedings to evict tcnants. Plaintiff, a 7 1 year old man, was one of the tenants who contested cviction. Plaintiff allcgcs that he developed asthma, rhinitis, sinnitus and shortness of brcath as a result of bcirig exposed to the rnold sporcs whilc living at Ihe premises. Plaintiff allcgcs that tic had never suffered fi-om asthma lxfore lie moved into the subject building, and that he had no hniily history of the diseasc. Plaintiff points to
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a inold condition, which may have been caused by rcpeated ilooding of one 01' the upstairs toilets, and claims that he observed "mold and fungus, which was black and green in various parts of the premises," including tlie bath r o o m and thc basement area. Plaintiff claims that "there was a terriblc odor in thc building." The basement area area was a `bcoi~i~iio~iwhere [tlie] tenants would go to watch television." Plaintiff tcstitjes at his deposition that the tenants also ate in thc basement because defendant had rcmoved all thc fumiturc from the dining area upstairs. Templc, in suppoi-t of its motion, siibiiiits: the pleadings; thc note of issue; a prc 1i i i i i n ary con feren ce order; p I ai 11ti f f s bi 11 of part i cu 1ars ; t h e d ep osi ti o 1 t ran s ci-ipt of Valeric Ross, Church Administrator; the deposition transcript ofplaintifc a "Notice of Terininatioii of Tenancy Holdover;" a copy of a "3 1 1 complaint," received April 27, 2004; a "Coniplaint Status" form; a "Routc Tnforniatioii" forni, dated May 12, 2004; two emergcncy room medical reports from Montifiore Medical Center, dated March 2, 2003 and May 16, 2003, respcctively; the report of Jack Adler, M.D., Temple's medical expcrt; a Notice for Discovery and Tnspection ("D&I'7), dated June 3, 2009; and a response to the D&l, dated June 19,2009. Plaintiff, in opposition, submits the following, not duplicative of Temple's submissions: the affidavit of plaintiff; a document titled "Report: Evaluation ofFungi Baskervillc Gro~ip Residence 12 Wcst 1291hStreet New York, New York Leadcarc, Inc. Project ID 250 12; the deposition transcript of plaintiff; several informatioiial printouts about mold; a letter from Robcrt Fried, MD, dated Deccmber 17,2009; and a letter from Envirospect, dated February 23,2005. Initially, Temple served plaintiff with a Notice for Discovery and Tiispcctioii ("D&I") on or about June 3,2009. In the D&T, Temple reqircsted that plaintiff produce "any and all inspection rccords, reports, writings for the subject premises concerning mold, fungi, leaks and/or water penetration for the period 200 1 through 2005." Plaintiffs response to Temple's request for reports, dated June 19, 2009, states, in relcvant part:

As counsel well knows, the matcrials requested in this paragraph arc itcnis that would be in the control ofthe defcndant and for the dcrendant to provide to the plaintiff. None of the requested materials are such as would be in the plaintift's possession and control.
Plaintiff filed a note of issiic on July 6, 2009. Temple claims that, at a
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confcrcrice held in front ofthc Honorable Justice Tolub on October 16,2009,plaintiff informed Teiiiplc that a mold evaluation liad indeed becn conducted, and that a report existcd. Templc: filed the instant motion 011 October 2 I , 2009. Teniplc asserts that plaintif`ldid not providc the rcport until Novcmber 23, 2009. PlaintXfYscounsel argues that lie did iiot have ~ C C C S Sto thc report because he is succcssoi- counsel and that the report was "buried in a largc tile maintained by prior counsel . . .[and] affirmant was not aware that a testing report existcd." Plaintiffs counsel acknowledges that hc becamc "aware of this rcport in or about Septcmber, 2009."
An order of preclusion may be issued when a pai%y wilfully fails to disclose information which the court finds ought to have been discloscd. (see CPLK $3126[2]).

An inferencc of an intcritional withholding can naturally be made where, as here, plaintiff failed to produce the Lcadcare report until after he filed his note of issuc, and then "disclosed the report only in opposing the motion for summary judgment." (see C`ela v. Goodyeur Tire & Rubber Co., 286 AD2d 640[lst Dept. 20013). Despite finding that thc withholding was intentional, tlic court in Cela found that a conditional order of prcclusion should bc issued "in view of [the] . . . failure to cienionstratc any actual prejLidice."(Id. at 640).
Here, unlike in Cela, Temple has been prejudiced as a result of plaintiffs failure to timely produce the Lcadcare report. Even if law office failure had prevented plaintiff from producing the rcport when Tcinple first requested it, plaintiff frcely acknowledges that he was aware ofthe report in September 2009, yet, he failed to produce it until after Temple made its motion. Duc to plaintiffs failure to produce thc Lcadcare report, Temple was deprived of thc opportunity to examine and refute a key piece of material evidence in preparation of its motion for summary judgment. Even ifthe Court were to consider the Leadcare report, the Court would still be coinpellcd to grant the motion. Temple has established its entitlcrnent to summary judgment, and plainliff, when asked to lay bare his proof, has failed to raise an issue of fact by prool`in admissible form with regard to causation.

Templc submits the affidavit of' Jack J. Adlcr, M.D., F.A.C.P., of AHB Puliiionary Associates, P.C., who examined plaintiff on May 12, 2009. Dr. Adlcr's report is based upon the assessment ofthe results of an in offkx physical, and on past pulrnoiiary tcstiiig rcsults, as compared with the pulmonary tests conducted at his
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office. Dr. Adler incorporates plaintiffs medical records, as well as the bill of particulars and plaintiff's deposition transcript into his report. Dr. Adler acknowledges that plaintiff is suffering from asthma but also concludes that plaintiff' suffers from various other ailmcnts including "hypertcnsion, atherosclerotic cardiovascular disease, status post myocardial infarction and elevated left hcmidiaphragim ', of unknown causc." Dr. Adler opincs:

The evidence that [plaintiffs] asthma is related to mold cxposure is purely anecdotal. First o l d 1 we know very little about what molds were present, if any, in the house other than the allegation stated in the Rill of Particulars. There is no objcctive evidence as to the mold status of the facility under question. Secondly, we havc no evidence that Mr. Baskervillc has any type of reaciion to mold. Thus there has been no evidence provided linking any alleged exposure to Mr. Baskerville's bioiiiedical status. In summary, I find no convincing evidence that any alleged mold exposure caused his current symptoms and status. In view of his multiple. Emergency Room visits, I bclieve that his deterioration rcpresents a fdilure to adequately inanage his respiratory status . .
Indeed, Dr. Adler had a Montefiore Medical Center record dated March 2, 2003, whcrcin it is noted 64 y/o aa inale who has no pmh presents to ER with complaints of SOB and wheezing. Pt states being in normal statc of health until 4 wks ago when ran out of subway after "stink bomb" was dropped. Pt states that the next day he bcgan to have a mild dry cough. This persisted until 2 wks ago when pt begaii to cxperience SOB with brisk walking and going u p flights of stairs. Where the proponent of a motion for summary judgment makes a prima facie showing of entitlement, the burden shifts to the party opposing the motion to demonstrate by admissible evidence that a factual issue remains requiring the trier of fact to determine the issue. ( Ztickerman v. Cily qfNew Ywk, 49 N.Y.2d 557 [ I YsO]). In addition, bald, coiiclusory allegations, even if believable, are not enough. (Ehrlich
An elevation of thc niusclc that scparates the chest cavity from the abdomen. Elevation ol`Ihc hcmidiaphragm can indicate anything from a chest wall injury lo lung canccr. (Encyclo Online Encyclopedia: littp://www.encyclo.co.uk/dcfine/elevatcd`~2~lien~~diapl~r~~~~i),
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The Court finds that Temple has met its burden, and it is incumbent upon plainticf to lay bare its proof that it can cstablish causation. Plaintiff need not show causation by a preponderance of thc cvidence for purposes of this iiiotion, but must dcmonstrate that there exists an issuc of fact by proof in admissible form. In opposition, plaintiff submits only an unsworn conclusory letter from his treating physician which states: Allen Baskerville has been my patient since 2003. He has rcactive airway disease which followed his exposure to mold in the house he was living in, He has had numerous emergency room visits and hospitalizations li kcly due to this. Toxic tort cascs rcquire that an "opinion 011 causation should set forth a plaintif`ps exposure to a toxin, that the toxin is capable of causing the particular illncss (general causation) and that plaintiff was exposcd to sufficient levels of the toxin to causc the illness (specific causation)." (Parker v. Mobile Oil Corp., 7 NY3d 434 [20061). Plaintiff fails to submit evidcnce showing that he was exposed to sufficient levels of mold to cause his illness. Rather, plaintiff submits an unsworn letter from his trcating physician, which merely states that plaintiffs symptomsfdlowed his mold exposurc and that thc exposure likely caused his hospitalizations. Given anothcr opportunity at oral argument to lay bare his proof, plaintiff again fdilcd to present any cvidence in admissible form on the issue of causation. Whereforc it is hereby

ORDERED that the motion for summary judgment is grantcd and the action is directed to entcr judginent accordingly. dismissed in its cntirety, and th Daicd: March 1, 20 10
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Eilccn A. Rakower, J.S.C.



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