Opinion
20 Civ. 251 (PAE) (GWG)
09-14-2022
LA'SHAUN CLARK, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, NEW YORK INSULATION & ENVIRONMENTAL SERVICES, JLC ENVIRONMENTAL CONSULTANTS, INC., ROCKMILLS STEEL PRODUCTS CORP., Defendants
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
La'Shaun Clark brings this case against the New York City Housing Authority (“NYCHA”), New York Insulation & Environmental Services (“NYIES”), JLC Environmental Consultants, Inc. (“JLC”), and Rockmills Steel Products Corp., alleging claims for fraudulent concealment and personal injury in connection with her alleged exposure to asbestos and Ardex, a non-asbestos product containing crystalline silica quartz. See Amended Complaint, filed Feb. 12, 2021 (Docket # 156) (“Am. Comp.”). NYCHA, NYIES, and JLC have moved for summary judgment dismissing all claims, and Clark has filed cross-motions for summary judgment against all defendants.For the reasons explained below, the defendants' motions should be granted and Clark's motions should be denied.
See NYCHA Motion for Summary Judgment, filed Mar. 11, 2022 (Docket # 269); NYCHA Memorandum of Law in Support, filed Mar. 11, 2022 (Docket # 270) (“NYCHA Mem.”); Declaration of Michael Sena in Support, filed Mar. 11, 2022 (Docket # 271) (“Sena Decl.”); NYCHA Rule 56.1 Statement, filed Mar. 11, 2022 (Docket # 272) (“NYCHA 56.1 Statement”); JLC Motion for Summary Judgment, filed Mar. 11, 2022 (Docket # 275); JLC Memorandum of Law in Support, filed Mar. 11, 2022 (Docket # 276) (“JLC Mem.”); JLC Rule 56.1 Statement, filed Mar. 11, 2022 (Docket # 278); Declaration of Nitin Sain in Support, filed Mar. 14, 2022 (Docket # 279) (“Sain Decl.”); Cross-Motion for Summary Judgment Against NYCHA, filed Apr. 15, 2022 (Docket # 282); Cross-Motion for Summary Judgment Against JLC, filed Apr. 15, 2022 (Docket # 283); Cross-Motion for Summary Judgment Against NYIES, filed Apr. 15, 2022 (Docket # 284); Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment Against NYCHA, filed Apr. 15, 2022 (Docket # 285) (“Pl. NYCHA Mem.”); Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment Against NYIES, filed Apr. 15, 2022 (Docket # 286) (“Pl. NYIES Mem.”); Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment Against JLC, filed Apr. 15, 2022 (Docket # 287) (“Pl. JLC Mem.”); NYIES Motion for Summary Judgment, filed Apr. 18, 2022 (Docket # 289); NYIES Memorandum of Law in Support, filed Apr. 18, 2022 (Docket # 290) (“NYIES Mem.”); Declaration of Richard Leff in Support, filed Apr. 18, 2022 (Docket # 291); NYIES Rule 56.1 Statement, filed Apr. 18, 2022 (Docket # 292); NYCHA Reply Memorandum of Law and Opposition to Plaintiff's Cross-Motion, filed May 5, 2022 (Docket # 297) (“NYCHA Reply”); Declaration of Michael Sena, filed May 5, 2022 (Docket # 298); NYCHA Response to Plaintiff's Statement of Material Facts, filed May 5, 2022 (Docket # 299); NYIES Reply Memorandum of Law and Opposition to Plaintiff's Cross-Motion, filed May 6, 2022 (Docket # 300); Declaration of Richard Leff in Support, filed May 6, 2022 (Docket # 301); NYIES Response to Plaintiff's Statement of Material Facts, filed May 6, 2022 (Docket # 302); Declaration of Nitin Sain in Support, filed May 6, 2022 (Docket # 303); JLC Memorandum of Law in Opposition of Plaintiff's Cross-Motion and in Further Support, filed May 6, 2022 (Docket # 305); Plaintiff's Combined Reply Memorandum of Law, filed May 26, 2022 (Docket # 306) (“Pl. Reply”); Declaration of La'Shaun Clark, filed May 26, 2022 (Docket # 307); Affidavit of La'Shaun Clark, filed May 27, 2022 (Docket # 308); Affidavit of Zavion Fisher, filed May 27, 2022 (Docket # 309); JLC Rule 56.1 Statement, filed June 1, 2022 (Docket # 310).
I. FACTS
Unless otherwise stated, the following facts are taken in the light most favorable to Clark.
Between 2004 and 2012, Clark was a tenant of the Claremont Houses Consolidation in the Bronx, a public housing development owned and managed by NYCHA. Pl. NYCHA Mem. at 4 (admitting allegations in NYCHA 56.1 Statement ¶¶ 1-2). During this time, Clark lived at 1100 Teller Avenue, Apartment 1H, Bronx, New York 10456 (“Apartment 1H”). Id.
Four months prior to Clark's tenancy, on February 9, 2004, an asbestos abatement was performed in Apartment 1H. Id. at 4, 12 (admitting allegations in NYCHA 56.1 Statement ¶¶ 3, 22). NYCHA contracted with NYIES, an abatement services company, to conduct the abatement. Id. at 12 (admitting allegations in NYCHA 56.1 Statement ¶ 22). During the abatement work, NYIES used a product called Ardex, which plaintiff alleges contains crystalline silica quartz. See Deposition of Anthony Cardinale, annexed as Ex. C to Sena Decl. (Docket # 271-3) (“Cardinale Tr.”), 98; Deposition of La'Shaun Clark, annexed as Ex. J to Sain Decl. (Docket # 279-10) (“Clark Tr.”), 80, 88.
NYCHA also contracted with JLC, which conducted air monitoring tests following NYIES's abatement work. Pl. NYCHA Mem. at 16 (admitting allegations in NYCHA 56.1 Statement ¶ 30). According to defendants, the abatement went “perfect,” the work was performed “by the book,” Cardinale Tr. 148, and visual inspections by NYIES and JLC, along with air monitoring tests by JLC, confirmed that the conditions in Apartment 1H were not hazardous. See id. 98, 100; Deposition of Jennifer Carey, annexed as Ex. M to Sain Decl. (Docket # 279-13) (“Carey Tr.”), 123-24, 138, 141-43.
Defendants offer the expert report of Dr. Howard Sandler, who asserts that there is no evidence that Clark was exposed to either asbestos or crystalline silica in Apartment 1H and whatever the levels of exposure might have been present would not have been capable of causing harm or disease. See Expert Report of Howard M. Sandler, M.D., annexed as Ex. F to Sena Decl. (Docket # 271-6) (“Sandler Report”), ¶¶ 14-15, 21.
In contrast, Clark asserts in her sworn testimony that the abatement work was flawed, and that she was consequently exposed to asbestos and crystalline silica quartz. See Clark Tr. 11, 8788, 96-98. The basis for her belief that the abatement work caused her exposure is that she has since been diagnosed with medical conditions, including COPD and Lupus, that she contends were caused by the exposure. See id. 87-88. Clark has not consulted or retained an expert in this case. See id. 82-83.
Clark also asserts that prior to signing her lease with NYCHA, she was not informed by NYCHA or anyone else that Ardex had been used. Id. 78-80. According to Clark, had she known about the use of Ardex in Apartment 1H, she would not have signed the lease. See Pl. NYCHA Mem. at 32, 44; Pl Reply at 5.
II. LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) (“[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.”).
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (internal quotation omitted), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). See Fed.R.Civ.P. 56(c), (e). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation and quotation omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).
Clark is proceeding pro se and thus we must liberally construe her filings to raise the strongest arguments they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 47475 (2d Cir. 2006). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (punctuation omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).
III. DISCUSSION
We construe Clark's amended complaint as asserting two claims: personal injury and fraudulent concealment, each of which we discuss next. Defendants make a host of arguments that they contend are each by themselves sufficient to require dismissal of one or both claims as to some or all of the defendants. These include arguments that the case is barred by the doctrine of res judicata because Clark years ago brought a case that made similar claims, that the case is barred by the statute of limitations, that there is no evidence that scientific testing ever determined that there were harmful levels of a toxic substance in Apartment 1H after Clark moved in, and that Clark cannot prove causation. See NYCHA Mem. at 18-38; JLC Mem. at 1625; NYIES Mem. at 8-23. As explained below, we find the personal injury claim cannot survive because of the absence of expert testimony as to causation and that the fraudulent concealment claim (brought only against NYCHA) fails because of Clark's failure to provide proof of the element of materiality. Accordingly, it is not necessary to address any of the defendants' other arguments.
A. Personal Injury Claim
Clark's personal injury claim is best construed as one for common-law negligence. See generally Am. Comp. at *2-3 (alleging that NYCHA, NYIES, and JLC “did not” fulfill their duties adequately). In New York, a plaintiff establishes a claim of negligence by proving “(1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom.” Pasternack v. Lab. Corp. of Am. Holdings, 27 N.Y.3d 817, 825 (2016) (punctuation omitted). Because Clark has not presented evidence that would allow a reasonable jury to find that she had satisfied the causation requirement (the third element), we do not address the first two elements.
Clark apparently views her claim as potentially involving strict liability or intentional infliction of emotional distress (“IIED”), see Pl. NYCHA Mem. at 37-38. This does not change our analysis, however, because both torts require plaintiff to establish causation consistent with the Parker test, which we discuss below. See Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 767, 784-86 (2014) (reversing denial of summary judgment in toxic tort case that included IIED claim because plaintiff failed to satisfy Parker causation standard); Holzworth v. Alfa Laval Inc., 2016 WL 6109139, at *2-4 (S.D.N.Y. Oct. 19, 2016) (granting summary judgment to defendant based on failure to satisfy Parker test in asbestos case brought under negligence, strict liability, and breach of warranty theories). We do not evaluate Clark's assertion of NYIES's negligence per se, see Pl. NYIES Mem. at 28, because establishing negligence per se does not relive a plaintiff of the distinct requirements of proving damages and causation. See Dance v. Town of Southampton, 467 N.Y.S.2d 203, 206 (2d Dep't 1983) (“Negligence per se is not liability per se, however, because the [plaintiff] still must establish that the statutory violation was the proximate cause of the occurrence.”); accord Sanchez v. United States, 2015 WL 667521, at *2 (S.D.N.Y. Feb. 17, 2015).
To prove causation in a tort case involving harm caused by toxic substances, a plaintiff's burden is two-fold. First, the plaintiff must prove “general causation” - that the toxin at issue is capable of causing the symptoms or illness of which the plaintiff complains. Second, the plaintiff must show “specific causation” - that the plaintiff was exposed to sufficient levels of the toxin to cause the symptoms or illness of which the plaintiff complains. Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006); accord Nemeth v. Brenntag N. Am., 2022 WL 1217464, at *3 (N.Y. Apr. 26, 2022); Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (2014). Although “it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship,” Parker, 7 N.Y.3d at 448, a plaintiff must, through “scientific expression,” id. at 459, “establish sufficient exposure to a substance to cause the claimed adverse health effect,” Cornell, 22 N.Y.3d at 784.
Defendants argue that Clark cannot satisfy this burden without offering expert testimony on the subject, which Clark has not done. See NYCHA Mem. at 37; JLC Mem. at 23; NYIES Mem. at 9. We agree.
Summary judgment is appropriate in cases where the nonmovant cannot establish a prima facie case or create a genuine issue of material fact without the benefit of expert testimony, and the nonmovant has not procured such testimony. See, e.g., Gayle v. Nat'l R.R. Passenger Corp., 2010 WL 430948, at *9 (S.D.N.Y. Feb. 8, 2010); Fernandez v. Cent. Mine Equip. Co., 679 F.Supp.2d 178, 188 (E.D.N.Y. 2009); Adorno v. Corr. Serv. Corp., 312 F.Supp.2d 505, 514 (S.D.N.Y. 2004); Grassel v. Albany Med. Ctr. Hosp., 636 N.Y.S.2d 154, 156 (3d Dep't 1996). Certainly, where a matter is “within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill,” expert testimony is not required. Fane v. Zimmer, Inc., 927 F.2d 124, 131 (2d Cir. 1991) (quoting Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 396 (1941)). But both New York and federal law require expert testimony where “the subject-matter to be inquired about is presumed not to be within common knowledge and experience.” Meiselman, 285 N.Y. at 396; accord Berk v. St. Vincent's Hosp. & Med. Ctr., 380 F.Supp.2d 334, 343 (S.D.N.Y. 2005) (“[U]nless the alleged [breach] falls within the competence of a lay jury to evaluate, it is incumbent upon the plaintiff to present expert testimony in support of the allegations to establish a prima facie case”).
Courts “cannot rely on circumstantial, lay evidence alone to create a genuine issue of material fact as to whether toxins emitted from [a particular location] caused” an individual's illness. Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004); see also Tufariello v. Long Island R.R., 458 F.3d 80, 89 (2d Cir. 2006) (noting that in “[t]oxic contamination cases” lacking expert testimony on causation, a “genuine doubt exists as to whether exposure to any amount of a particular chemical could cause the plaintiff's injury”). Thus, to survive summary judgment in a toxic tort claim arising under New York law, a plaintiff must come forth with sufficient expert testimony establishing triable issues of fact on specific, as well as general, causation. See Nemeth, 2022 WL 1217464, at *3 (under New York law, “[p]laintiffs [in a toxic tort case] must, using expert testimony based on ‘generally accepted methodologies,' . . . establish sufficient exposure to the toxin even though ‘it is sometimes difficult, if not impossible' to do so.” (emphasis added) (quoting Sean R. ex rel. Debra R. v. BMW of N. Am., LLC, 26 N.Y.3d 801, 812 (2016)); Parker, 7 N.Y.3d at 449 (requiring a “scientific expression” of causation in toxic tort cases); Zaslowsky v. J.M. Dennis Const. Co., 810 N.Y.S.2d 484, 485-86 (2d Dep't 2006) (affirming grant of summary judgment where plaintiff's expert testimony was inadequate “to raise a triable issue of fact as to the causal connection between [a] gas leak and [plaintiff's] alleged injuries).
Here, while they bear no burden of proof, NYCHA, JLC, and NYIES offered the expert report of Dr. Howard Sandler, who asserts that there is no evidence that Clark was exposed to either asbestos or crystalline silica from Apartment 1H and that whatever levels of exposure she had were not capable of causing harm or disease. See Sandler Report ¶¶ 14-15, 21. Although Clark challenges Dr. Sandler's opinions under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), see Pl. NYCHA Mem. at 62-68; Pl. JLC Mem. at 42-51; Pl. NYIES Mem. at 41-50, we need not resolve that challenge here because defendants do not in fact have any burden of proof on causation and have pointed to the absence of sufficient evidence from Clark regarding causation. See NYCHA Mem. at 37 (“Plaintiff has not retained any expert to opine that her alleged exposure to asbestos and Ardex was capable of causing and in fact caused her physical ailments, nor has she provided any expert opinion about the level of Plaintiff's exposure as required by Parker and its progeny”); JLC Mem. at 23 (same); NYIES Mem. at 9 (same); see also Clark Tr. 82-83. As was explained in McLaughlin v. United States, 2015 WL 9450862 (S.D.N.Y. Dec. 16, 2015):
The law is clear that where a nonmoving party bears the burden of proof on an issue, it is sufficient for the party moving for summary judgment to “point[] out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325. The moving party may use a memorandum or brief to “point to” the absence of evidence and thereby shift to the nonmovant the obligation to come forward with admissible evidence supporting its claim. E.g., Feurtado v. City of New York, 337 F.Supp.2d 593, 599 (S.D.N.Y. 2004).Id. at *1; accord Rodriguez v. Nassau Cnty., 2019 WL 4674766, at *9 (E.D.N.Y. Sept. 25, 2019); see also Estate of Gonazles v. Hickman, 2007 WL 3237727, at *5 n.42 (C.D. Cal. May 30, 2007) (“[U]nder Rule 56, a defendant is not required to prove a negative - i.e., the absence of genuine issues of material fact - to establish his or her entitlement to summary judgment. Rather, the party may simply assert that there is no evidence to substantiate the material allegations of the complaint. To defeat the motion, plaintiffs must adduce evidence contradicting defendant's claim.” (emphasis in original)); Fed.R.Civ.P. 56(c)(1)(B). Accordingly, Clark has the burden to come forward with sufficient evidence - necessarily including expert testimony - on causation to create a genuine issue of material fact.
Clark testified that she has not retained an expert. See Clark Tr. 82-83. Indeed, Clark offers no expert testimony in connection with her oppositions or cross-motions. This lack of expert testimony is fatal to Clark's personal injury claims. See Nemeth, 2022 WL 1217464, at *3; Parker, 7 N.Y.3d at 448-49; Wills, 379 F.3d at 46.
In her reply brief, Clark points to a medical record that make reference to Clark's exposure to asbestos. Reply Br. at 19 (citing Docket # 262-40, at *2). The note does not state any clear opinion on the issue of level of exposure and specific causation. In any event, there is no claim that Clark retained the doctor who wrote this note as an expert, that this doctor wrote the report required by Fed.R.Civ.P. 26(a)(2)(B), and that plaintiff made the disclosures required by Fed.R.Civ.P. 26(a)(2). See also Docket ## 216, 255 (requiring such disclosures by February 16, 2022).
Clark makes three points in an effort to avoid dismissal.
First, Clark argues that a lay person can, without expert assistance, draw the necessary causal inference between the presence of asbestos and Ardex in Apartment 1H and the injuries for which Clark sues. See Pl. Reply at 19. But as discussed above, case law expressly rejects this contention. Courts in New York and the Second Circuit have held that in personal injury cases arising from alleged exposure to a toxin, expert testimony is required to prove causation. See, e.g., Nemeth, 2022 WL 1217464, at *3; Parker, 7 N.Y.3d at 448-49; Wills, 379 F.3d at 46. To the extent this may be considered an evidentiary issue, rather than an issue of substantive state law, federal courts have uniformly come to the same conclusion. See Milward v. RustOleum Corp., 820 F.3d 469, 476 (1st Cir. 2016); Wills, 379 F.3d at 46; Henry v. St. Croix Alumina, LLC, 572 Fed.Appx. 114, 120 (3d Cir. 2014); Zellers v. NexTech N.E., LLC, 533 Fed.Appx. 192, 200 (4th Cir. 2013); Johnson v. Arkema, Inc., 685 F.3d 452, 470-71 (5th Cir. 2012); Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 676-77 (6th Cir. 2011); C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 838 (7th Cir. 2015); Barrett v. Rhodia, Inc., 606 F.3d 975, 984-85 (8th Cir. 2010); Nelson v. Matrixx Initiatives, Inc., 592 Fed.Appx. 591, 592 (9th Cir. 2015); Howell v. Centric Grp., LLC, 508 Fed.Appx. 834, 837 (10th Cir. 2013); McCasland v. Pro Guard Coatings, Inc., 799 Fed.Appx. 731, 734 (11th Cir. 2020) (per curiam).
Second, Clark argues that NYCHA has admitted the factual allegations in the amended complaint because it did not timely file an answer within 21 days of the filing of her amended complaint. See Clark NYCHA Mem. at 31-32; Fed.R.Civ.P. 12(a)(1)(A)(i). To explain this argument requires some digging into the record. In brief, plaintiff in early 2021 filed a letter motion seeking leave to amend her complaint against NYCHA to add a claim of fraudulent concealment and attached a copy of the proposed amended complaint. See Letter from La'Shaun Clark, filed Jan. 21, 2021 (Docket # 141). The Court ordered NYCHA to respond to that motion by February 5, 2021. See Order, dated Jan. 25, 2021 (Docket # 142). Instead of responding to the motion, however, on February 9, 2021, NYCHA filed an “Amended Answer” to the proposed amended complaint that was attached to plaintiff's letter. See Amended Answer, filed Feb. 9, 2021 (Docket # 150). Clark argued the Amended Answer was untimely if measured against the filing of her letter, see Letter from La'Shaun Clark, filed Feb. 9, 2021 (Docket # 151). The Court ultimately granted plaintiff's motion to amend as unopposed, directed Clark to file the amended complaint (that is, as a separate document on the docket), and directed NYCHA to respond to the amended complaint. See Order, dated Feb. 12, 2021 (Docket # 155). Clark filed the amended complaint later that day. See Am. Comp. NYCHA, however, did not file any further amended answer. According to Clark, NYCHA failed to respond to the amended complaint and therefore the amended complaint's factual allegations against NYCHA must be deemed true under Fed.R.Civ.P. 8(b)(6), absolving Clark of any need to procure expert testimony. See Pl. NYCHA Mem. at 31-32; Pl. Reply at 3.
We reject this argument. Rule 8 applies to pleadings as actually filed, not to a failure to file a pleading at all. When there is a failure to file an answer, a party must move for a default judgment under Fed.R.Civ.P. 55. Plaintiff has never moved for a default judgment, however, and any such motion would be denied anyway given that NYCHA actually filed an answer to the proposed amended complaint, even if was filed on the docket before the docketing of the amended complaint. The Second Circuit has repeatedly emphasized its “clear preference . . . for cases to be adjudicated on the merits.” Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 174 (2d Cir. 2001); accord City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011). There is no reason why the Court should not simply accept the Amended Answer as a permissible (if premature) response to the Amended Complaint.
Finally, Clark's briefing could be read to suggest that, at least with respect to her claims against NYCHA, the implied warranty of habitability obviates the need for her to offer expert testimony. See Pl. NYCHA Mem. at 32-33 (invoking warranty of habitability and citing N.Y. Real Property Law § 235(b)(3)(a) for the proposition that “[i]n determining the amount of damages sustained by a tenant as a result of a breach of the warranty [of habitability], the court . . . need not require any expert testimony”). Yet even if the amended complaint could be construed to encompass such a claim, the cited provision of the Real Property Law relates to “the amount of damages” rather than to causation. More to the point, the existence of an implied warranty of habitability is irrelevant because the warranty does not create a cause of action to recover damages for personal injuries. See, e.g., Joyner v. Durant, 277 A.D.2d 1014, 1015 (4th Dep't 2000); Richardson v. Simone, 275 A.D.2d 576, 577 (3d Dep't 2000); Stone v. Gordon, 211 A.D.2d 881, 881 (3d Dep't 1995); Carpenter v. Smith, 191 A.D.2d 1036, 1036 (4th Dep't 1993).
In sum, Clark has failed to offer sufficient evidence on causation. Thus, Clark's personal injury claim should be dismissed.
B. Fraudulent Concealment Claim
Clark also asserts a fraudulent concealment claim against NYCHA. See Am. Comp. at *1. According to Clark's Amended Complaint, despite knowledge of the potential for harm, NYCHA failed to disclose to Clark that Ardex had been used and that hazardous amounts of crystalline silica quartz were present in Apartment 1H. See id. at *1-2, *4. Had NYCHA done so, Clark alleges that she would not have leased Apartment 1H. See id. at *4. NYCHA now seeks to dismiss this claim. See NYCHA Mem. at 30.
Clark's fraudulent concealment claim is based solely on NYCHA's alleged failure to mention the use of Ardex or the presence crystalline silica quartz in Apartment 1H. Clark was denied leave to amend her complaint to include a fraudulent concealment claim relating to asbestos. See Clark v. New York City Housing Authority, 514 F.Supp.3d 607, 612 (S.D.N.Y. 2021).
Under New York law, a claim for fraudulent concealment requires a plaintiff to establish “(1) that the defendant had a duty to disclose certain material information but failed to do so; (2) that the defendant then made a material misrepresentation of fact; (3) that said misrepresentation was made intentionally in order to defraud or mislead; (4) that the plaintiff reasonably relied on said misrepresentation; and (5) that the plaintiff suffered damage as a result.” Oxbow Calcining USA Inc. v. Am. Indus. Partners, 948 N.Y.S.2d 24, 30 (1st Dep't 2012); see also Dembeck v. 220 Cent. Park S., LLC, 823 N.Y.S.2d 45, 47 (1st Dep't 2006). Because Clark has failed to submit sufficient evidence that NYCHA made a material misrepresentation or omission of fact, we do not reach the remaining elements.
The basis for Clark's fraudulent concealment claim appears to be NYCHA's failure to disclose the presence of Ardex in the apartment. See Am. Comp. at *1-2, *4. NYCHA does not contend that it in fact disclosed to Clark that Ardex had been used or that crystalline silica quartz was never present in Apartment 1H. See NYCHA Mem. at 31; NYCHA Reply at 7. Thus, while Clark may be able to establish that an omission of fact occurred, to satisfy the second element, she must still offer evidence showing this omission was material. “The basic test of materiality is whether ‘a reasonable [person] would attach importance [to the fact misrepresented] [or concealed] in determining his choice of action in the transaction in question.'” Cong. Fin. Corp. v. John Morrell & Co., 790 F.Supp. 459, 470 (S.D.N.Y. 1992) (quoting List v. Fashion Park, Inc., 340 F.2d 457, 462 (2d Cir. 1965)) (second alteration in original); accord Hettinger v. Kleinman, 733 F.Supp.2d 421, 441 (S.D.N.Y. 2010). This standard is an objective one. Thus, for an omission to be material, it is not enough for the plaintiff to assert that she would have acted differently had she been fully informed. Rather, the omitted information must be important to a reasonable person in the plaintiff's circumstances.
Here, a reasonable person considering whether to lease Apartment 1H would not be influenced by the fact that Ardex was used in Apartment 1H at some point in the past unless (1) the crystalline silica quartz remained present in Apartment 1H at the time the individual leased the apartment; and (2) any crystalline silica quartz present in Apartment 1H was in fact hazardous to health or safety. If the crystalline silica quartz was not present in Apartment 1H during the tenancy or was not capable of creating a health or safety risk, no reasonable person would have been influenced by the omitted information, and the omission identified by Clark would not be material.
Here, there is no competent evidence regarding the levels of crystalline silica quartz in Apartment 1H during Clark's tenancy. Indeed, the only air monitoring tests conducted in Apartment 1H took place immediately after the abatement and confirmed that the conditions in Apartment 1H were not hazardous. See Carey Tr. 123-24. To the extent Clark disputes the results of these tests or suggests that the crystalline silica quartz remained present at hazardous levels, Clark cannot survive summary judgment without expert testimony on this point. As discussed above, a lay jury is simply not capable of determining, without expert assistance, whether a particular level of a toxic substance was present in a location at a particular time, whether that substance is in any way harmful, and if so, whether the level at which the substance was present created a health or safety hazard. See generally Nemeth, 2022 WL 1217464, at *3; Parker, 7 N.Y.3d at 449; Wills, 379 F.3d at 46. Clark has not retained an expert in this case, and she has thus failed to submit competent expert testimony regarding the presence of crystalline silica quartz in Apartment 1H. See Clark Tr. 82-83; supra Section III.A n.3. Accordingly, Clark has failed to offer evidence sufficient to create a genuine issue of material fact concerning whether NYCHA's failure to disclose the use of Ardex or the presence of crystalline silica quartz was material.
The Court does not view Clark's Amended Complaint as including a claim for “medical monitoring,” or “fear of cancer.” See Pl. NYCHA Mem. at 35; NYCHA Reply at 8, 10. Certainly, Clark never requested leave to amend with respect to such claims, and this Court never granted such a request. Even if such claims had been alleged, they would require proof of actual exposure to hazardous levels of a toxic material (among many other elements requiring expert testimony), see, e.g., Abbatiello v. Monsanto Co., 522 F.Supp.2d 524, 539 (S.D.N.Y. 2007); Wolff v. A-One Oil, 216 A.D.2d 291, 291 (2d Dep't 1995); Jones v. Utilities Painting Corp., 198 A.D.2d 268, 268 (2d Dep't 1993), and thus would fail for the same reasons already discussed.
Because Clark cannot prove the second element of fraudulent concealment, her fraudulent concealment claim must be dismissed.
IV. CONCLUSION
For the foregoing reasons, defendants' motions for summary judgment (Docket ## 269, 275, 289) should be granted, and Clark's cross-motions (Docket ## 282-84) should be denied. The remaining defendant in this case, Rockmills Steel Products Corp., should be dismissed as a defendant because it was never served within the time limit provided by Fed.R.Civ.P. 4(m).Thus, the case should be dismissed in its entirety.
On January 15, 2021, this Court noted that the time to serve Rockmills Steel Products Corp. under Fed.R.Civ.P. 4(m) had long since expired and invited any party seeking to extend the time for service to make an application to do so. See Order, dated Jan. 15, 2021 (Docket # 139). No party ever filed such an application, however.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Engelmayer. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).