Brenda Cornell, Respondent,v.360 West 51st Street Realty, LLC, et al., Defendants, 360 West 51st Street Corp., Appellant.

Brief

N.Y.January 14, 2014

To be Argued by: MORRELL I. BERKOWITZ (Time Requested: 30 Minutes) New York County Clerk’s Index No. 113104/04 Court of Appeals of the State of New York BRENDA CORNELL, Plaintiff-Respondent, – against – 360 WEST 51ST STREET REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF, SUPREME SERVICES OF NEW YORK INC. and GEOFFREY SHOTWELL, Defendants, – and – 360 W. 51ST STREET CORP., Defendant-Appellant. ––––––––––––––––––––––––––––––– 360 WEST 51ST ST. REALTY, LLC, BRUSCO REALTY CORP., ROBERT BARANOFF and BRUSCO REALTY MANAGEMENT LLC, Third-Party Plaintiffs, – against – SUPREME SERVICES OF NEW YORK INC. and ANDRE VAQUE, Third-Party Defendants. BRIEF FOR PLAINTIFF-RESPONDENT On the Brief: MORRELL I. BERKOWITZ JOSEPH V. AULICINO GALLET DREYER & BERKEY, LLP Attorneys for Plaintiff-Respondent 845 Third Avenue, 8th Floor New York, New York 10022 Tel.: (212) 935-3131 Fax: (212) 935-4514 Date Completed: July 1, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................ iii PRELIMINARY STATEMENT ........................................................................ 1 COUNTER STATEMENT OF QUESTION PRESENTED .............................. 8 FACTUAL AND PROCEDURAL BACKGROUND ....................................... 8 PROCEDURAL HISTORY .............................................................................. 11 COMPLIANCE OF CORNELL’S PROOF WITH EXISTING STANDARDS ........................................................................................ 13 THE COURT’S DECISION CONCERNING ADEQUACY OF PROOF OF SPECIFIC CAUSATION ................................................... 14 THE COURT’S DECISION CONCERNING REJECTION OF “QUANTIFICATION” OF EXPOSURE ARGUMENT ....................... 14 THE COURT’S DECISION CONCERNING REJECTION OF CHALLENGE TO UTILIZATION OF “DIFFERENTIAL DIAGNOSIS” IN EVALUATING AFFECT OF EXPOSURE TO TOXIC SUBSTANCES ................................................................... 15 COURTS’ DECISION REJECTING APPELLANT’S CONTENTION OF LACK OF RESPONSIBILITY FOR CONDITIONS ...................... 16 STATEMENT OF FACTS ............................................................................... 17 APPELLANT’S LONGTIME KNOWLEDGE OF UNCURED UNSANITARY AND DANGEROUS CONDITIONS IN BUILDING .......... 24 CORNELL’S MEDICAL AND SCIENTIFIC PROOF ................................... 29 APPELLANT’S “EXPERT” OPINION BASED UPON REVIEW OF DOCUMENTS PROVIDED BY COUNSEL AND NO PHYSICAL EXAMINATION OF CORNELL..................................................................... 36 ii “DEFENDANTS’ MEDICAL AFFIDAVIT AND THE BASES FOR DEFENDANTS’ CONCLUSIONS HAVE FUNDAMENTAL FLAWS, ERRORS, AND OMISSIONS .......................................................................... 37 ARGUMENT .................................................................................................... 38 POINT I THE COURT BELOW MADE PLAIN THE SIGNIFICANCE AND APPLICABILITY OF AN EARLIER DECISION AND APPLIED LONG STANDING PRECEDENT TO THE OVERWHELMING EVIDENCE OF RESPONDENT’S EXPOSURE TO A DANGEROUS “MIXTURE” OF CONTAMINANTS WHICH LED TO HER PHYSICAL CONDITION ..................................................................... 38 A. THE RECORD CONTAINS SUBSTANTIAL UNCONTRADICTED PROOF OF DANGEROUS SUBSTANCES THAT RESPONDENT WAS EXPOSED TO SHOWING BOTH PROXIMATE AND SPECIFIC CAUSATION ENTITLING CORNELL TO HER DAY IN COURT .............................................................................. 38 B. THE METHODOLOGY USED TO DETERMINE RESPONDENT’S PHYSICAL INJURIES DUE TO TOXIC MOLD EXPOSURE HAS LONG BEEN SCIENTIFICALLY ACCEPTED AND ACKNOWLEDGED BY THE COURTS AND THE EFFORT TO PROPOUND A “QUANTITY” TEST HAS BEEN REJECTED BY THIS COURT .............. 52 POINT II APPELLANT HAD LONG-TIME KNOWLEDGE OF DANGEROUS CONDITIONS IN THE BUILDING WARRANTING THE CLAIMS AGAINST IT ................................................................ 55 CONCLUSION ................................................................................................ 60 iii TABLE OF AUTHORITIES CASES 360 West 51st St. Realty LLC. v. Cornell, 14 Misc.3d 90, 831 N.Y.S.2d 634 (App. Term 1st Dept. 2007)................... 9, 11, 17 Barbuto v. Winthrop University Hospital, 305 A.D.2d 623, 760 N.Y.S.2d 199 (2d Dep’t. 2003) .......................................... 44 B.T.N. v Auburn Enlarged City School District, 45 AD3d 1339, 845 N.Y.S.2d 614 (4th Dep’t 2007) ................................. 15, 16, 46 Cabral v 570 W. Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2d Dep’t 2010) .................................. 15, 44, 45 Charles Brandt and Nancy Brandt v. Rokeby Realty Company, et al., No. 97C-10-132-RFS (Del. Super. 2006) ............................................................. 34 Cornell v 360 W.51st Street Corp. et.al. 26 Misc. 3d (1211A), 2009 WL5448787 (Sup. Ct. NY Co.2009) ................... 2, 12 Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dep’t. 2006) .............................................. 47 Deborah.Netti, et,al vs. Auburn Enlarged City School District” entered September 21, 2006, affirmed, 45 A.D.2d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007) ........................................... 35 Ferguson, et al., v. Riverside, et al., No. CS-00-0097-FVS, February 5, 2002 .............................................................. 34 Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dep’t 2008) ............ 4, 5, 7, 9, 10, 12, 13, 40 Frye v. United States, 293 F. 1013 (D.C. Cir.1923) .................................................. 2, 4, 6, 13, 40, 41, 45 Gayle v Port Authority, 6 A.D.3d 183, 775 N.Y.S. 2d 2 (1 st Dept. 2004) ................................................. 45 iv Ilana Morris, an Infant by her Mother and Natural Guardian, et.al vs. New Property Associates, et.al” (Sup.Ct. Westchester Co.2007) ............................................................................ 35 Jackson v Nutmeg Technologies, Inc., 43 A.D.3d 599, 842 N.Y.S. 2d 588 (3rd Dept. 2007) ........................................... 47 Jazylo v. Leong, 2007 WL 2174953 (Sup.Ct.Ulster CO. 2007), 2007 N.Y. Slip Op.31343(U) .... 46 Kurtz v. Chicorp Financial Services, 286A.D.2d 753, 731 N.Y.S.2d 187(2d Dep’t. 2001) ........................................... 45 Lopez v. Gem Gravure Co., Inc., 50 A.D.3d 1102, 858 N.Y.S.2d 226 (2d Dep’t. 2008) ......................................... 44 Lustenring v AC&S, 13 A.D.3d 69, 786 N.Y.S. 2d 20 (1 st Dept. 2004) ............................................... 45 Marso' v Novak 42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009] ......................................... 16 Martin v Chuck Hafner's Farmers' Mkt., Inc., 28 AD3d 1065, 814 N.Y.S.2d 442 (4th Dep’t 2006) .............................. 15, 45, 46 New Haverford Partnership, et al., v. Elizabeth Stroot, et al., C.A. No. 95C-05-074, (Del. Super. 2001) .......................................................... 34 Nonnon v City of New York, 32 A.D.3d 91, 819 N.Y.S. 2d 705 (1 st Dep’t 2009) ............................................ 45 Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006) ...................................................................... 3, 7, 14, 39, 52 Patrolmen’s Benevolent Association of the City of New York v. City of New York, 27 N.Y.2d 410, 318 N.Y.S.2d 477 (1971) ........................................................ 42 v Rashid v Clinton Hill Apts. Owners Corp., 70 A.D.3d 1019, 895 N.Y.S.2d 524 (2d Dep’t 2010) .............................. 15, 43, 44 Rowan v. Brady, 98 A.D.2d 638, 469 N.Y.S.2d 711 (1st Dep’t 1983) ............................................. 41 Stevens v. Pirates Lane Condo Trust, et al., (Sup. Ct. Mass 2002)............................................................................................. 34 Sweeney v. Farrell, 20 A.D.3d 872, 798 N.Y.S. 2d 613 (4 th Dept. 2005) ............................................ 45 Triangle Fire Protection Corp. v. Manufacturers Hanover Trust Co. 172 A.D.2d 658, 570 N.Y.S.2d 960 (2d Dept.1991) ............................................ 42 Wright v Willamette Indus., Inc., 91 F3d 1105 [8th Cir 1996] ........................................................................... 14, 52 STATUTES CPLR §3212(b) ..................................................................................................... 42 OTHER AUTHORITIES Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes (28 Journal of Allergy and Asthma Proceedings, May/June 2007) ............................................................................... 54 Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building (116 Environmental Health Perspectives, June 2008) 54 National Institute for Occupational Safety and Health entitled “Rhino Sinusitis and mold as risk factors for asthma symptoms in occupants of a water-damaged building.”, Indoor Air, NIOSH, 2012 ................................................................... 50 "Occupational Illness", N.Engl.J.Med., vol. 333, no. 17, pp. 1128-1134; J. La Dou (ed.) ....................................................................................................... 35 vi The Federal Emergency Management Agency issued a News Release on November 3, 2010, Mold Problems Can Lurk After A Flood, www.fema.gov/news/newslrelease.fema?id=53181 ............................................. 50 The N.Y.C. Department of Health guidelines, entitled “Guidelines on Assessment and Remediation of Fungi in Indoor Environments” ....................... 29 The World Health Organization, Guidelines for Indoor Air Quality-Dampness and Mould”-2009 .................................................................................................. 50 2 PRELIMINARY STATEMENT This Brief is submitted on behalf of Plaintiff-Respondent Brenda Cornell (“Respondent” or “Cornell”) in opposition to the instant appeal brought by Defendant-Appellant 360 W. 51st Street Corp. (“Appellant”). By this appeal, Appellant challenges the Decision and Order of the Appellate Division, First Department, entered March 6, 2012 (“First Department’s Decision”), which reinstated Cornell’s complaint as against Appellant and thus modified the trial court’s Order of Supreme Court, New York County (Marcy S. Friedman, J.) entered January 13, 2010 [Cornell v 360 W.51st Street Corp. et.al. 26 Misc. 3d (1211A), 2009 WL5448787 (Sup. Ct. NY Co.2009) (R.7-24)1 The Court below did not “improperly [apply] a modified version of the Frye test” , that granted summary judgment to Appellant. Appellant seeks to have summary judgment entered in its favor and Cornell’s action dismissed. For the reasons set forth herein, and upon the First Department’s Decision having been properly made, this Court should affirm the First Department’s Decision. 2 1 “R” followed by a number refers to pages in the Record on Appeal herein. with regard to the admissibility of Cornell’s expert’s evidence, as Appellant contends, but instead found the Frye standard satisfied by the evidence submitted. 2 Frye v. United States, 293 F. 1013 (D.C. Cir.1923). 3 At the outset, the First Department’s Decision neither made new law, nor misapplied existing precedent for determining the admissibility of expert evidence in support of personal injury claims based upon exposure to toxic mold and other harmful substances. The principal determination of said Decision, as set forth explicitly in the opening sentence of same (R.3217), was clarification of an earlier decision by that Court where a particular plaintiffs’ proof was found insufficient, and how that earlier decision should be applied. It simply reaffirmed that no blanket bar to entitlement to a trial was established by its earlier decision. Here, moreover, there was overwhelming and uncontradicted proof of Cornell’s exposure to a deadly combination of contaminants found in the apartment based on extensive environmental testing showing the presence of a toxic “mixture” of toxic mold as well as an assortment of metals3 3 Among the “mixture” of contaminants Cornell was exposed to were Stachybotrys, Chaetonium, Aspergillus, Penicillium, Alternaria, and a variety of fungi, mold, and mold spores indicative of a water damaged environment.(R.2486, 2505-2506,2925-2954, 2980- 2982). In addition, it was demonstrated that lead, arsenic, barium, copper, iron, manganese, and zinc were also found in the apartment. (R.2972-2974). Appellant’s attempt to resuscitate the “dose-response” analysis, which the scientific community (and this Court in Parker v. Mobil Oil Corp., 7 N.Y.3d 434,448 (2006)] has long rejected, is meritless and particularly inapplicable to this extraordinary “mixture” of unquestionably harmful substances Cornell was exposed to. ; extensive medical examinations (R.2499-2501), blood tests, and other laboratory tests and examinations (R.2819-2923); and knowledge by Appellant of the presence of such contaminants by receipt of environmental testing reports in 1998 and 2003, long before Cornell was exposed, and the building sold by Appellant (R.3051- 4 3058, 3059-3068, respectively)4 In challenging the First Department’s Decision, Appellant bases its appeal upon its and the trial court’s interpretation of the Fraser . 5 Appellant spuriously, in a hyberbolic manner, contends that the First Department’s Decision “dangerously lowers the bar for admission of expert evidence regarding general causation in mold based personal injury claims”, and “depart[ed] from Fraser”, when, in reality, the Court properly found Cornell’s expert proof satisfied the unscathed Frye standard and, in doing so, made plain the significance of its prior Fraser decision, and did not modify same. decision previously rendered by the same Court. However, such interpretation of the Fraser decision is and was misguided. The trial court incorrectly interpreted and applied Fraser to the instant case which culminated in the trial court’s improvident dismissal of Cornell’s complaint, which the Court below properly reversed. The myopic attempt to assert that there is a legitimate doubt in the “relevant scientific community” that exposure to indoor mold causes adverse health effects was belied by the extensive studies to the contrary in the record (R.2496-2499, 2457-2762, 2763-2798, 2799-2818). More recent studies which 4 Cornell had demonstrated the existence and her exposure to contaminants in an earlier Civil Court proceeding commenced by some of the defendants in this action (who settled below), as concluded by the Civil Court of the City of New York in 360 West 51st Street Realty LLC vs. Cornell, NYLJ 9/6/05, p.18, Col 1 (Hsg Ct. NY Co 2005) (R.2502-2513); and affirmed by the Appellate Term at 18 Misc 3d 90, 831 N.Y.S.2d 634 (App. Term 1st Dept. 2007) (R.2514- 2515) lv den 2007 NY Slip Op. 71525 (U). 5 Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dep’t 2008). 5 this Court make take judicial notice of, shows increasing evidence of the dangers posed by mold resulting from water or dampness. Indeed, the dangers from mold resulting from water and dampness is not limited to “hyper sensitive” persons as Appellant theorizes without any support whatever, but is becoming more and more apparent not only from such studies6 The principal issue before the Court below was whether its prior decision in Fraser, precluded Cornell from proceeding to trial. The Court unambiguously stated how its prior decision in Fraser should be read. At the outset of the Order, the Court made clear that its prior decision did not establish a blanket rule barring plaintiffs in the First Department from proving their claim of injury due to exposure to microbiological agents and contaminants. Indeed, in the Fraser decision, the Court could not have said it simpler: , but from remediation efforts resulting from Hurricane Sandy as evidenced by the OSHA Fact Sheet entitled “Mold Hazards during Hurricane Sandy Cleanup”, FS-3612 , November, 2012, and the OSHA Fact Sheet entitled “Hurricane Sandy Cleanup PPE Matrix, FS-3619 December 4, 2012, included in Respondent’s Addendum. The dangers are real. “We stress that our holding does not set forth a general rule that dampness and mold can never be considered the cause of a disease only that such causation has not been demonstrated by the evidence presented by 6 See eg Park, Kreiss,Cox-Gauser “Rhinosinusitis and mold as risk factors for asthma symptoms in occupants of a water-damaged building”, Indoor Air, National Institute for Occupational Safety and Health Division of Respiratory Disease Studies, November, 2012, included in Respondent’s Addendum. 6 plaintiffs here”, 57 A.D.3d at 418, 870 N.Y.S. 2d at 268. (emphasis added). The trial Court in this case, however, felt constrained by Fraser, and inter alia, granted summary judgment to Respondent dismissing the complaint against it (R.7-24). In modifying that decision, the Court below specifically stated in the very first sentence of its Decision: “The motion court incorrectly interpreted our ruling in Fraser [citation omitted] as setting forth a categorical rule requiring dismissal of [Respondent’s] toxic mold claim due to failure [to] meet the standard of scientific reliability set forth in Frye v. United States [citation omitted]. In Fraser, another case involving injuries arising out of exposure to toxic mold, we affirmed dismissal of the plaintiff’s personal injury claim because the plaintiff’s submissions failed to raise a triable issue of fact. We never disavowed the underlying theory that exposure to mold, may, under certain circumstances, give rise to respiratory and other ailments. Indeed, this Court was careful to limit its holding in Fraser, explicitly stating, ‘We stress that our holding does not set forth any general rule that dampness and mold can never be considered the cause of a disease, only that such causation has not been demonstrated by the evidence presented by plaintiffs here’ [citation omitted) (emphasis added) (R.3217) The motion court erred in finding that [Respondent’s] proof was not ‘strong enough to constitute a causal relationship’ or that the methodologies used to evaluate her condition failed to meet the Frye standard. The focus of the Frye inquiry ‘should not be upon how widespread (a) theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for (an) expert’s views’ [citation omitted] …Since [Cornell’s] expert’s opinions relating [Cornell’s] condition to the mold infestation find ‘some support in existing data, studies (and) literature’ [citation omitted] namely, studies that have found a statistically significant relationship between mold and various respiratory maladies, the Frye standard is satisfied” [bracketed material and emphasis added] (R.3217-3219) 7 Unlike the Fraser-plaintiffs, Cornell’s submissions including her experts’ evidence, raised triable issues as to causation regarding her injuries from exposure to microbiological agents and contaminants including mold. The focus of the Frye standard is not on how widespread a theory of causation is, but rather, whether support for the theory or expert opinion exists. Here, Cornell’s proof met that standard, as the Court concluded: “namely, studies that have found a statistically significant relationship between mold and various respiratory maladies.” (R.3218-3219); “the evidence easily satisfied the test of reliability set forth in Frye” (R.3228); and that the results of the studies relied upon by Cornell’s expert “were found to be statistically significant”, resulting in the strength of the association being sufficient to conclude that “mold caused the identified ill-health effects.” (R. 3229). The Court rejected the challenge to differential diagnosis which is a widely accepted diagnostic tool; and also the claim that it is necessary to quantify precise exposure levels of contaminants, citing this Court’s decision in Parker v Mobil Oil Corp., 7 N.Y.3rd 434 (2006) that “it is not always necessary for a plaintiff to quantify exposure levels precisely…provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community” 7 N.Y.3d at 448 (R.3230). Finally, as the Court noted, it is undisputed between the parties’ experts 8 that “mold is capable of causing the ill-health effects experienced by [Cornell].” (bracketed material added) (R.3233). In short, Cornell’s case is based upon serious physical problems caused by exposure to toxic substances as demonstrated by established scientific methods utilized by her treating physician. COUNTER STATEMENT OF QUESTION PRESENTED The question: “Was the [First Department’s Decision] which modified the order of the [trial court] properly made?” has been certified for the instant appeal. For the reasons set forth herein, the First Department’s Decision should be affirmed, and the certified question should be answered in the affirmative. FACTUAL AND PROCEDURAL BACKGROUND The Court below properly reversed the summary dismissal of Cornell’s claim to severe injury resulting from her uncontradictable exposure to a mixture of atypical microbial contaminants7 7 As set forth in the supporting affidavit of her treating physician, and supported by several uncontradicted environmental testing reports, among the “mixture” found in Cornell’s apartment were “Stachybotris, Chaetomium, Aspergillus, Penicillium, Alternaria, and a variety of fungi, mold, and mold spores indicative of a water damaged environment” (R2486). (See also R.2472-2474, 2482-2483, 2505-2506,2925-2954, 2980-2982). Her apartment was also found to contain metals including lead, arsenic, barium, copper, iron, manganese, and zinc (R.2972-2973). and based upon a widely accepted methodology, including extensive physical examinations, blood tests and other evaluations. This, despite the specific precedent of the Court below that its 9 decision in Fraser, was not “set[ting] forth a general rule that dampness and mold can never be considered the cause of a disease” 57 A.D.3d at 418, 870 N.Y.S.2d at 268; that ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship’’(citation omitted) 57 A.D.3d at 419; and that "there is no rule that a jury may hear only theories that are either ‘conclusively establish[ed]' by the scientific literature or unanimously supported by the scientific authorities….[W]e do not suggest…that a substance cannot be considered the cause of a health outcome unless the substance ‘always’ causes that health outcome.” 57 A.D.3d at 418-419, 870 N.Y.S.2d at 269 f.n.2. Here, the trial court improperly dismissed categorically the Complaint in view of the substantial medical documentation presented in support of Respondent's claim that her severe condition was caused by unsanitary and unsafe conditions in her home. Cornell has previously established the existence of and her exposure to such harmful substances in an earlier Civil Court proceeding involving some of the same defendants in this action (R.2502-2513), and affirmed by the Appellate Term, in 360 West 51st St. Realty LLC. v. Cornell, 14 Misc.3d 90, 831 N.Y.S.2d 634 (App.Term 1st Dept.2007) (R.2514-2515), which concluded that the conditions constituted grounds for constructive eviction 10 and breach of the warranty of habitability claims. Indeed, in this action Cornell had presented neither “new”, nor “novel” scientific theories, but well recognized, sound medical and scientific proof that has been upheld in numerous courts throughout New York, and in other states. Although the Court in Fraser, supra, stated that it did not intend a categorical rule precluding a victim from mold and other microbial contaminants and harmful metals from having their day in court (which rule is contrary to holdings of trial and appellate courts in the 2nd, 3rd, and 4th Departments which specifically conclude that the methodology utilized here entitles a plaintiff to a trial) and that Fraser should be limited to the facts of that case, Appellant’s and the trial court’s misguided interpretation of Fraser could have potentially barred litigants in the First Department, who allege injury due to exposure to contaminants, to be barred from asserting their claims. Point I, infra, shows that the Court below properly reversed the decision of the trial court and neither created “new law”, or a standard for evaluating the admissibility of evidence in support of personal injury claims due to exposure to toxic substances. Point II infra, shows that Appellant had knowledge of and involvement in the conditions existing in the building where Cornell lived and raised material 11 issues of fact warranting the claims against it. PROCEDURAL HISTORY Cornell commenced the instant action against, among others, Appellant in 2004, by service of a summons and verified complaint. A second amended complaint was served (R.2217-2225), seeking monetary damages for personal injuries resulting from unsafe and unsanitary conditions in the building where she had lived at 360 West 51st Street, in Manhattan. Appellant duly answered on December 3, 2007 (R.2226-2237). Cornell had previously been a respondent in a non-payment proceeding in Civil Court of the City of New York, County of New York, entitled “360 West 51st Street, Petitioner, vs. Brenda Cornell et.al., Respondents”, Index No. L & T 106494/03. That proceeding concluded after a 17 day trial with a decision in Cornell’s favor awarding her relief for breach of the warranty of habitability and for constructive eviction, including monetary damages and attorneys’ fees (R. 2502-2513). That decision was affirmed by the Appellate Term, First Department, and reported at 360 West 51st St. Realty LLC. v. Cornell, 14 Misc. 3d 90, 831 N.Y.S. 2d 634 (App. Term 1st Dept. 2007) (R.2514-2515). After extensive discovery over the next several years, Cornell, in April, 2008, inter alia, made a motion for partial summary judgment against some of 12 the then defendants8 By decision-order dated December 18, 2009, and entered January 13, 2010, (R.2449), who, had also moved, (R.25), with Appellant making a Cross-Motion, to dismiss the Complaint (R.2191). Subsequent to submission of the papers and oral argument in connection with said motions, the parties were given an opportunity, in March, 2009, to submit additional papers with respect to the applicability of the decision of the Appellate Division, First Department, in Fraser v 301-52 Townhouse Corp. 57 A.D.3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), to the instant case. Supreme Court, New York County (Friedman, J.) inter alia, granted the cross- motion by Appellant dismissing the complaint as to it (R.7-24), as reported at 26 Misc.3d 1211 (A), 2009 WL 5448787 (Sup. Ct. NY Co. 2009). Cornell duly served and filed her Notice of Appeal and Pre-Argument Statement dated February 19, 2010 (R.1-7). By Decision/Order entered March 6, 2012, the Court below reversed the decision of the trial court and reinstated the Complaint (R.3216-3240). The Court made plain that its prior decision in Fraser, supra, did not create a bar to trial by plaintiffs alleging injuries due to exposure to toxic mold and similar substances; and also addressed the substantiality of the proof submitted by Cornell’s various 8 Cornell has settled her claims with defendants 360 West 51st Street Realty, LLC, Brusco Realty Corp, Robert Baranoff, Brusco Realty Management LLC, and Supreme Services, Inc. 13 experts and its conformity both with scientific studies and precedents of this and other courts. Pertinent excerpts from the Court’s well reasoned and thorough decision with respect to certain issues, follows: Compliance of Cornell’s proof with existing standards: “Despite this Court's admonition in Fraser, that Fraser "does not set forth any general rule that dampness and mold can never be considered the cause of a disease" (Fraser, 57 AD3d at 418), the motion court nonetheless interpreted Fraser, erroneously in our view, as requiring rejection of [Cornell's] personal injury claim based on exposure to mold. The scientific evidence shows that exposure to molds, particularly the types of molds whose presence in [Cornell’s] apartment was confirmed by sampling, i.e., aspergillus/penicillium, stachybotrys and chaetonium, can cause the types of ill effects experienced by [Cornell]. [emphasis and bracketed material added] (R.3228) The evidence offered on the motion easily satisfied the test of scientific reliability set forth in Frye. The motion court found that the supplemental studies relied on by Dr. Johanning "plainly do not remedy the insufficiency found by the Fraser majority." However, a thorough reading of the studies relied on by plaintiff's expert demonstrate a clear relationship between exposure to mold and respiratory and other symptoms. One study found "significant linear exposure-response relationships between various microbial measurements (total fungi, fungi requiring Aw 0.8, hydrophilic fungi, ergosterol and endotoxin) in dust and health outcomes (respiratory cases, epi-asthma cases, and post-occupancy asthma cases)." Another, upon a review of the epidemiological data, concluded that "[t]he preponderance of epidemiological data supports a link between exposure to dampness and excess mold growth and the development of aeroirritant symptoms" (emphasis added).(emphasis in bold added) (R.3228-3229) The results in the studies relied on by [Cornell] were found to be statistically significant, meaning the strength of the association was sufficient to conclude, within the range of probability, that exposure to mold caused the identified ill-health effects. Scientists do not report their 14 results in terms of black and white causality, but rather, in terms of the strengths of the associations found. These associations having been found sufficiently strong by the literature as to be indicative of a causal relationship, [Cornell’s] evidence must be deemed to meet the Frye standard.” (emphasis and bracketed material added) (R.3229) The Court’s decision concerning adequacy of proof of specific causation: “[Cornell] has also adequately established specific causation. The evidence confirmed the presence of these types of molds in [Cornell’s] apartment. [Cornell's] expert opined that [Cornell's] exposure to these fungi, including their by-products such as allergens, mycotoxins, and microbial volatile organic compounds, caused [Cornell's] ailments. [Cornell's] expert opined that [Cornell] still exhibited immune mediated hypersensitivity reactions, as confirmed by IG testing, to microbes typically found in very wet and damp environments. (emphasis and bracketed material added) (R.3229-3230) The Court’s decision concerning rejection of “quantification” of exposure argument: “The motion court found that [Cornell] had failed to adequately set forth her exposure levels to the molds identified in the apartment. Yet we have stated, time and time again, in cases involving environmental contamination and exposure to toxic substances, that it is generally difficult or impossible to quantify a plaintiff's exposure to a toxin. “The Court of Appeals, in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), made clear that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" (Parker, 7 NY3d at 448; see Wright v Willamette Indus., Inc., 91 F3d 1105, 1107 [8th Cir 1996] ["We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant's emission has probably caused a 15 particular plaintiff the kind of harm of which he or she complains"]). The motion court's reasoning runs counter to that of the Court of Appeals in Parker and is contrary to the views expressed by our sister Departments in cases involving exposure to toxic mold (see e.g. Cabral v 570 W. Realty, LLC, 73 AD3d 674 [2d Dept 2010] [denying summary judgment where, inter alia, defendant failed to meet its initial burden of establishing, through scientifically reliable methodology, that no causal link existed between the plaintiff's injuries and their exposure to mold]; Rashid v Clinton Hill Apts. Owners Corp., 70 AD3d 1019 [2d Dept 2010]). The Fourth Department, in B.T.N. v Auburn Enlarged City School District (45 AD3d 1339 [2007]), affirmed denial of defendant's motion for summary judgment in a case alleging harm from exposure to atypical molds, stating: "The record contains sufficient epidemiological evidence to support a finding of general causation, i.e., that the atypical molds found to be present in the school building can cause plaintiffs' symptoms. In addition, the affidavit of plaintiffs' expert is sufficient to support a finding of causation. There is no requirement that an expert precisely quantify exposure levels or establish a dose- response relationship. Rather, an expert may use a methodology generally accepted in the scientific community in concluding that the particular exposure caused the plaintiffs' symptoms." (id. at 1340 [citations omitted]; see also Martin v Chuck Hafner's Farmers' Mkt., Inc., 28 AD3d 1065 [4th Dept 2006] [the plaintiff's expert affidavit raised a triable issue of fact as to whether the plaintiff's exposure to aspergillus mold caused his injuries])”. (emphasis and bracketed material added) (R.3230-3231) The Court’s decision concerning rejection of challenge to utilization of “differential diagnosis” in evaluating affect of exposure to toxic substances: “It is undisputed that exposure to toxic molds is capable of causing the types of ailments from which [Cornell] suffers.[Cornell’s] expert, via differential diagnosis, arrived at the scientifically sound conclusion that exposure to the toxic molds in [Cornell's] apartment was a cause, within a reasonable degree of medical certainty, of her 16 documented medical ailments. The motion court reasoned that "Fraser rejected Dr. Johanning's claim to have established causation by means of 'differential diagnosis.'" However, this Court has never rejected differential diagnosis as an unsound scientific procedure. Rather, this Court has stated that in order to be considered as a possible cause, in a differential diagnosis matrix, a given agent must be capable of causing the harm observed. Thus, in Marso' v Novak (42 AD3d 377 [2007], lv denied 12 NY3d 704 [2009]), we rejected an expert's opinion as to causation, arrived at through differential diagnosis, not because the differential diagnosis was an unreliable methodology, but because the medical literature did not support the premise that bradychardia was a risk factor for the type of stroke suffered by the plaintiff (compare B.T.N. v Auburn Enlarged City School District, 45 AD3d 1339 [4th Dept 2007], supra [the plaintiff's expert opinion that the plaintiff's injuries were caused by toxic mold exposure, arrived at through differential diagnosis, met test of scientific reliability]). Here, on the other hand, [Cornell's] expert and [Appellant's] experts all agree that mold is capable of causing the ill-health effects experienced by [Cornell]. [Cornell's] expert opined that "[m]olds can cause a wide spectrum of illnesses, including allergies, irritation, hypersensitivity pneumonitis and direct infection." [Appellant's] expert did not examine [Cornell] in arriving at his conclusion that mold had not caused her ailments, concluding that "in the case of Ms. Cornell, molds caused no significant, objectively documented illness."(emphasis and bracketed material added) (R.3232-3233). Courts’ decision rejecting Appellant’s contention of lack of responsibility for conditions: “[Appellant] argues that it is not liable because [Cornell’s] symptoms arose in October 2003, when demolition commenced in the basement, one month after [Appellant] had sold the building. However, the evidence supports the inference that the molds found in the basement were indicative of long-standing water damage occurring while [Appellant] owned the building, and that the long- standing mold had migrated through the floorboards and the air shaft as a result of the demolition work in the basement. (emphasis 17 and bracketed material added ) (R.3233-3234). By Decision/Order dated October 2, 2012, the Court below granted Appellant leave to appeal to this Court (R.3241). STATEMENT OF FACTS At the outset, this case presents the unusual circumstance that proof of injuries, causation, and the circumstances by which [Cornell] came to the physical ailments that she claims were caused by Appellant, did not start with the filing of the complaint in the Supreme Court. After a full trial in the Civil Court of the City of New York, County of New York (Cavallo, J.) where Cornell, and several scientific experts testified, in a decision dated August 16, 2005, (R.2502-2513)9 “[Cornell] has shown by a preponderance of the credible evidence that a combination of metallic dust and fungi existed in her apartment, that [defendant 350 West 51st Street] caused and or created the conditions by its acts in the basement, that the condition affected her health and that she abandoned the premises as a result of petitioner’s act and omissions” (R.2512) (bracketed material and emphasis added) the court concluded: That decision was affirmed by the Appellate Term, First Department, as reported at 14 Misc.3d 90, 831 N.Y.S. 2d 634 (App. Term 1st Dept. 2007)(R.2514-2515), which concluded: 9 That nonpayment proceeding was entitled “360 West 51st Street vs. Brenda Cornell” Index No.L & T 106494/03. Petitioner therein was the original lead defendant in this action. Leave to appeal the Appellate Term affirmance, was denied. 18 “A fair interpretation of the voluminous trial evidence, including the opinion testimony offered by [Cornell’s] environmental and medical experts...supports the trial court’s fact-laden determination that landlord breached the warranty of habitability through its demolition and debris removal work in the building’s basement, which caused “metallic dust and fungi” to enter into [Cornell’s] ground floor apartment…The abatement award, though substantial, was warranted in light of the serious nature of the apartment conditions shown to exist” (emphasis and bracketed material added) (R2515). As proven in that proceeding, and as the trial court found (R.2503-2504), starting in 1997, the building where Cornell lived had damp musty areas in the public areas of the basement which also contained bugs and mice; floods causing damage to stairwells and basement; a broken steam pipe in Cornell’s apartment; and a major demolition and renovation effort in the basement commencing in October, 2003, which immediately and adversely affected Cornell who experienced a severe allergic reaction including a rash and difficulty breathing. Her condition progressively worsened, and she was forced to vacate the apartment in May, 2004. As Cornell had testified in the Civil Court proceeding, she had been employed by Universal Records in its IT Department and earned a salary of approximately $65,000. She also worked on weekends and evenings as a DJ in clubs and other locations. Cornell had her recording studio in the apartment containing her own electronic music equipment, a large library of LP’s, CD’s and tapes all kept in one room. When Cornell was laid off from her position at 19 Universal Records, she planned to expand here DJ business into full time work (R.2470). But, after October 1, 2003, Cornell was so ill she was unable to work for over a year. When she did resume work her health limitations only allowed her to work on a temporary basis at low paying jobs. Cornell never fully recovered here health, continued to experience mental disorientation, extreme fatigue and frequent bouts of breathing difficulties causing her to be unable to work and unable to keep a position for very long. (R.2470). Cornell had also previously demonstrated in the Civil Court that the pathway of harmful substances to her apartment was via: (i) the holes in the basement ceiling and the space between the planks in the floor in her apartment as observed by a NYC Department of Health inspector, and (ii) through the air shaft (sometimes referred to as a dumbwaiter).(R.2466, 3074). The factual background of the unfortunate circumstances that befell Cornell and led to the serious physical ailments that began in 2003, and continues to the present day, was fully described in the decision of the Civil Court who determined same after a 17 day trial, was considered by the Court below, and is deserving of consideration here: “[Cornell] moved into the apartment in 1997 with a roommate and then signed a two-year lease as the primary tenant on June 7, 2001. She later signed a three-year lease commencing July 1, 2003 expiring June 30, 2006 10 10 The parties agreed in Court to terminate the tenancy as of April 30, 2004, and Cornell All of these leases were 20 negotiated with the prior landlord. The premises are located directly above the basement area of the building and has four bedrooms, a living room, kitchen and one bathroom. She testified that she loved the apartment as it provided space for her musical equipment and the ability to have a roommate yet still afford some privacy. [Cornell] stated that throughout her tenancy, she often walked through the public area of the basement which was damp, smelled musty, and contained bugs and mice. She testified that she was friendly with Judith Shotwell who lived in an apartment in the basement. She stated she saw flooding in the building in the summer of 2002 and 2003 resulting in water damage in the stairwell to the basement and on the walls it he basement. During the summer of 2003, a steam pipe broke in her apartment filling the space with steam. After the pipe broke and water leaked into the basement in 2003, she noticed a small amount of mold in her bathroom. Cornell testified when she entered the bathroom, she started to feel ill, experiencing a body rash, shortness of breath, fatigue, disorientation and headaches. She testified that the prior landlord placed a dehumidifier in the bathroom and advised her to wash the area with bleach which she did and her symptoms disappeared. On October 1, 2003, petitioner, the new owner of the building, began renovations in the basement. Contractors arrived and removed debris such as old furniture, wood and an unused oil tank. On that day she experienced dizziness, chest tightness and congestion, shortness of breath, disorientation, swollen eyes, a body rash, and a metallic taste in her mouth. [Cornell] stated that her symptoms continued over the next couple of days, and that despite allergy medicines prescribed by her doctor, the symptoms only subsided when she left the premises for a period of time. She also observed her neighbor, Judith Shotwell, who had a similar rash during the first week of October. On October 7, 2003, [Cornell] left the apartment because of difficulty breathing. By letter dated November 2003, respondent informed petitioner that she was unable to live in the apartment due surrendered possession in early May 2004. 21 to work done in the basement and was withholding her rent for the month of November….Cornell testified that she moved in with a friend and never slept another night in her apartment (R2503-2504) (emphasis and bracketed material added). * * * On January 31, 2004, [Cornell] went to the premises to pick up mail and check her things. She testified that she became so ill, experiencing problems breathing and breaking out in a rash, that she went to NYU Downtown Hospital for treatment. The Emergency Room doctor recommended that she avoid her apartment. On March 8, 2004, [Cornell] visited the apartment to wait for an HPD inspector and testified that she felt so ill after waiting in the apartment for ten hours, she went to the St. Clare/St. Luke’s emergency room. On May 1, 2004, she again visited the emergency room after spending 10 hours in the apartment on April 30 moving all of her personal belongings out of the apartment (R.2504-2505) (emphasis and bracketed material added). * * * … She complained that she had no energy and had given up her previous hobby, bicycle racing... [Cornell] presented many experts to prove that the damp conditions in the basement of the building created the perfect environment for the growth of fungus, that the contractors disturbed years of spores and dust when they cleaned out the basement and created sawdust and metal dust as they dismantled the old oil tank. ..[Cornell’s] witnesses suggested that a hazardous suspension of all these particles moved up a dumb waiter shaft and through cracks in the floor and entered her apartment where they settle contaminating the space. Mr. Lawrence B. Malloy, an environmental investigator and consultant of indoor air quality and toxic materials abatement, visited the premises on November 3, 2003, performed certain tests, and took samples from respondent’s apartment and the basement area of the building. He issued a report of the findings indicating contamination from Aspergillus/Penicillium, Stachybotrys, and Chaetomium. He testified at trial that both Aspergillus and 22 Penicillium are toxic molds that contain mycotoxins known to be aeroallergens, and that Stachybotrys is a very toxic mold that produces highly toxic mycotoxins. He stated that Stachybotrys cannot exist without a continuous source of water and that there is no acceptable indoor level of the mold. Mr. Malloy concluded that because there was an elevated mold spore count in the basement compared to the outdoor air, the building was producing the contaminants. He based his conclusion on what he described as the “chimney effect,” where hot air rises through a building via pipes that are not insulated. Mr. Malloy described that any contaminates in the air will seep through the floorboards and walls of the building. He recommended a complete mold abatement of the apartment. Petitioner’s attorney conceded that one of respondent’s experts, Dr. Shin S. Yang, was well known expert of fungus and his laboratory, P&K Microbiology Services, Inc. (P&K), was a well known microbiology laboratory with a specialty in mold testing…(R.2505- 2506) (emphasis and bracketed material added). Dr. Yang testified that based upon the P&K test results from samples collected in March 2004, [Cornell’s] apartment showed contamination from Chaetomium, Stachybotrys, Aspergillus, Penicillium, Paecilomyces Verioti. He stated that Chaetomium and Stachybotrys are excellent indicators of water damage and that based upon the combinations of the different type and species of fungi found in the apartment, the environment sustained long-term water damage. He concluded that [Cornell’s] apartment had small contamination but was not a healthy environment for habitation. Mr. John Pedneault[sic], [Cornell’s ]expert in heavy metals, testified about the types of metals found in the dust in the apartment. He tested the apartment in March 2004 and found somewhat elevated levels of lead, manganese, arsenic and zinc levels and “enormous” amounts of iron.11 11 Pednault’s report showed the variety of metals found included lead, arsenic, barium, copper, iron, manganese, and zinc (R.2972-2973). He also found chromium and cadmium which are not ordinarily found in residential apartments. He attributed the metal dust to the demolition work done in the basement in October 2003. 23 Mr. Jay Danilczyk, an environmental consultant and owner of Green Circles Inc., a corporation that does environmental evaluations and remediation, testified that he inspected, took samples and evaluated data in March 2004 in the basement, the apartment and the air shaft connecting the basement to the Apartment. He removed floorboards in the apartment where he found mold growing and metallic dust. Based on his findings and the guidelines established by the Departments of Health and Environmental Protection and O.S.H.A., he recommended a complete professional abatement of all the fungi and metals found in the apartment. He also recommended that Ms. Cornell live elsewhere until there was a remediation. Lastly, he referred [Cornell] to Dr. Johanning for a medical evaluation. (R.2506-2507) (emphasis and bracketed material added). * * * The Court finds that the credibility of Brenda Cornell is the key to the ultimate outcome of this trial. Ms. Cornell presented a portrait of a happy life, excellent health, lots of physical activity in the gym and on her bicycle, an avid interest in music with aspirations to turn her hobby into a career, a beautiful apartment tastefully decorated, a series of congenial roommates and then poof, a cloud of dust and spores rose from the basement and ruined it all. The experts pointed to spores and dust and heavy metal dust as the cause and allergies and asthma as the result. (R.2508) (emphasis added). * * * The Court found Cornell to be credible. The Court observed her each day and listened to the testimony she gave. She appeared to be slow and deliberate in movement and confused and bewildered in affect. These observations support her credibility. Someone who has experienced what Cornell experienced should act as Cornell acts. There are other factors which bolster her credibility. She has paid all the rent to the petitioner or to her attorney. This is not a proceeding where the respondent has no money and asserts any and all defenses while he/she scrambles to get it. She returned all the money that Puzzi paid to her. That act is totally consistent with her legal position in this proceeding. (R.2510) (emphasis added). * * * 24 …She has shown by a preponderance of the credible evidence that a combination of metallic dust and fungi existed in her apartment, that petitioner caused and or created the conditions by its acts in the basement, that the condition affected her health and that she abandoned the premises as a result of petitioner’s act and omission. The Court awards Cornell a 100% abatement for the months of October 2003 through April 2004. The Court awards an abatement for the month of July 2003 when the pipe broke in her apartment and she first noticed mold and experienced trouble breathing and a rash. (R.2512) (emphasis added). APPELLANT’S LONGTIME KNOWLEDGE OF UNCURED UNSANITARY AND DANGEROUS CONDITIONS IN BUILDING Appellant had early knowledge of the unsanitary and health impairing conditions in the building as early as October, 1998, as evidenced by the “Mold Testing” Report dated October 14, 1998, it commissioned from Environmental Assessments and Solutions Inc. (R. 3051-3058). That Report noted the presence of mold in the cellar, “mold stained sheetrock walls”, and a variety of microbial organisms including Aspergillis fumigatus, A. versicolor, and penicillium (R.3051, 3058). Most significantly, the testing was done in response to the “tenant concerns regarding mold”, and discovery of organisms in the apartment of a tenant in the basement “which are a potential concern based upon the tenant’s pre-existing health status” (R.3051). Indeed, Cornell had often visited with that tenant, Judith Shotwell, and observed that the basement was always wet, damp, or musty, and that part of the basement beneath Cornell’s apartment was subjected to repeated floods (R.2465). Appellant ordered 25 additional testing of the basement apartment in July, 2003, for mold contamination in response to further complaints by Judith Shotwell. That 2003 report referred to a recent flood into the basement apartment and also recommended cleaning of the affected area and re-testing (R.3059,3061). It also cautioned under “Report Limitations”: “…Our recommendations are based upon a limited set of observations and measurements during our site inspection. Non- accessible area such as behind walls and above ceilings as well as inside ventilation equipment is not included in our inspection. When limited inspection results indicate a possible moisture/mold problem such as with staining, flood history, damp foundation walls/slabs with coverings such as sheetrock, paneling or carpeting, caution should be used in interpreting any laboratory results which do not show a mold problem” (R.3062) (emphasis added) Appellant did not further investigate nor do any of the recommended work, nor did it ever claim to have done so. It was plain that dangerous conditions in the basement still existed in 2003, prior to Appellant’s sale of the building, as described in a letter from Mrs. Shotwell sent to the other defendants (R.3032-3033). There was also testimony at the Housing Court trial from Dr. Chin S. Yang, who was employed by P & K Microbiology Services, Inc. Dr. Yang testified that the samples collected from the apartment which were analyzed by his laboratory tell him that these samples were collected from a water damaged environment in which mold grows and was most likely “long 26 term, nine to 12 months…or longer”; and the type of mold identified, “of interest to me, chaetomium and stachybotrys.” (R.472-474, 482-483). Cornell thereby showed that Appellant allowed the existence of dampness in the basement of the Building to continue for many years and that molds which are associated with dampness grew, up until the time that Appellant sold the building to the other defendants, and none of these contentions were rebutted in the opposition papers by Appellant. Appellant’s motion seeking summary judgment, preclusion, or a Frye hearing, incorporated by reference the motion made by other defendants in the action (R.2196). The motions of all the defendants, including Appellant, relied upon the affidavit of a physician who apparently has no formal training or professional experience in the field, or even physically examined Cornell, S. Michael Phillips, M.D. (R.2107-2128); as the court below found. Cornell’s expert and treating physician, Dr.Eckhard Johanning, on the other hand, who has actually practiced in the field for over 20 years, and, among other things, has conducted studies and served as a consultant to, among others, the Center for Disease Control and Prevention, the Ontario Ministry of Health, and the World Health Organization, and been widely published and recognized as an expert in the field (R.2484-2501,2536-2543), is also the treating physician for Cornell. Dr. Johanning has been accepted as an expert witness in numerous courts throughout 27 the country and New York and the need for a Frye hearing rejected (R.2577- 2684). Appellant’s entire claim was originally based (but seemingly abandoned) upon the “straw man” that Cornell failed to test for “mycotoxins”; but now seems to have morphed to the failure to “quantify” which irritant or microbial contaminant caused which malady, or that she is suffering from a “mold infection”. This case is not just about “mold”, or “micotoxins”, with a newly created theory of illness resulting from exposure. This case as the Court below concluded, is simply about dangerous, unhealthy, and unsanitary conditions in a damp environment causing allergic and respiratory problems evaluated by generally accepted medical standards and practice. As explained by Dr. Johanning, this case is not about mycotoxins, or a mold infection because the “environmental evidence shows that [Cornell] was unquestionably exposed to unsanitary conditions” (R.2487). The alleged “failure” to “test”, or quantify, is entirely irrelevant, and long rejected by such authorities as the National Institute of Public Health (R.2757-2762); The National Institute of Environmental Health Science, National Institute of Public Health, U.S. Department of Health and Human Services (R.2763-2798), and the American Academy of Pediatrics (R.2799-2818). (See Dr.Johanning’s explanation of these 28 studies at (R.2497-2499). Moreover, Appellant also relied on a number of “position papers” which Dr. Johanning revealed should be rejected because they have been discredited, and superceded by more current studies and publications (R.2496-2499). For example, among the “authorities” upon which Appellant relied, are the 2006 “position paper” of the American Academy of Allergy Asthma and Immunology (“AAAAI”); the 2003 “position paper” of the American College of Occupational and Environmental Medicine (“ACOEM”); and the Institute of Medicine 2003 Damp Buildings book (“IOM”).12 An author of both those papers, Dr. Andrew Saxon, had never done These “position papers” should be rejected by this Court as anything but evidence of the current state of medical research. Indeed, as noted by the headline story in the Wall Street Journal on January 9, 2007(R.2726-2734), the “position papers” were in fact written by mold litigation defense experts for use in litigation, with no disclosure of that fact (R.2496). any research or published even one article on the health effects of mold before he wrote these papers, and has testified exclusively for the defense in more than 150 mold cases (R. 2496). 12 Appellant’s reliance upon the 2002 statement by Dr. Steven Redd (R.2205) should be rejected as long outdated by the more current treatises and studies annexed to Dr. Johanning’s affidavit (R.2496,2544-2576, 2685-2708,2755-2798,and 2799-2818). 29 Even more telling is that Dr. Harriet Ammann, who is the former chief toxicologist for the State of Washington, was a member of the IOM Damp Buildings Committee and an author of the book that is one of the references upon which Appellant relied, filed an affidavit in the Fraser case sworn to November 10, 2006, (R.2726-2734) which specifically refutes the conclusions made by the lower Court in Fraser, and the conclusions propounded by Appellant. As Dr.Amman concludes in her in-depth and extremely pertinent affidavit: “There is no question, and it is both a fact and my opinion, that the products of damp buildings are strongly associated with and are a cause of respiratory symptoms and illness, to a high degree of scientific certainty. This fact is generally accepted in the public health community and, in my experience, in the medical community as well.” (R.2733-2734). (emphasis added) As noted by Dr.Amman, “Were we to wait for such proof to an absolute certainty…we would not give protective gear to the workers in New Orleans that are cleaning up after the flood, nor would the New York City Department of Health Mold Guideline (1993) and (2000) require extensive worker protection in contaminated environments. Why should we give them safety equipment, if damp buildings do not “cause illness” (R.2729) (emphasis added).13 CORNELL’S MEDICAL AND SCIENTIFIC PROOF In short, this case involves, as the Court below concluded, a young woman, previously healthy, who was devastated by the dangerous, unsanitary, 13 The N.Y.C. Department of Health guidelines, entitled “Guidelines on Assessment and Remediation of Fungi in Indoor Environments” was annexed to Dr. Johanning’s Affidavit (R.2735-2754). 30 and unhygienic conditions that the Respondent caused, permitted to exist in her apartment, or failed to remove, with the cause of her physical ailments substantiated by an acknowledged expert in the field, which many courts have so determined (R.2577-2684) and who is her treating physician; where the conditions that led to her physical injuries was also previously substantiated and documented by many environmental inspections and scientists (R.2925- 2954,2972-2973, 2980-2982); medical examinations (R.2499-2501); blood tests and other laboratory tests and examinations (R.2819-2923); and upheld in the Civil Court proceeding (R.2502-2513); by the Appellate Term (R.2514-2515); and with the Court below concluding she should have her day in Court to recover damages for her personal injuries (R.3216-3240). As set forth in Dr. Johanning’s affidavit: “My conclusions as to the cause and extent of [Cornell’s] condition … is based upon my extensive and repeated physical examinations of her over a lengthy period of time as her treating physician who was brought in to consult at a very early stage at the onset of her condition, which was undeniably caused by exposure to an unusual mixture of atypical microbial contaminants. Indeed,[Cornell] suffered and continues to this day to suffer from her responsiveness to exposure to a biological agent or a mixture of agents that included allergens and irritants that have been long and widely recognized as being triggers that cause or aggravate asthma.14 14 Among the “mixture” found were Stachybotrys, Chaetomium, Aspergillus, Penicillium, Alternaria, and a variety of fungi, mold, and mold spores indicative of a water damaged environment. (R.2486,2505-2506,2925-2954,2980-2982). The existence of a large variety of contaminants in [Cornell’s] apartment and in the area below the apartment was demonstrated in the reports 31 by a number of environmental investigation experts (See Exhibit 18 annexed hereto [R.2925-2987]). There was no serious question but that [Cornell’s] apartment was unhealthy, unsanitary, and dangerous to her health and had a host of deleterious effects on her, and included her exposure to dust, microbial growth, mold, heavy metals and a diversity of fungi and bacteria that came up through the floor boards and airshafts in the apartment as a result of demolition work in the basement directly below the apartment, contamination from flooding in many areas throughout the apartment, as revealed by long term water damage; as well as dust, moisture, standing water and streaking on the walls.” (R.2486-2487) (emphasis and bracketed material added) Indeed, the basis for Dr.Johanning’s diagnosis and opinion was fully set forth in his affidavit, to-wit: “38. I engaged in a comprehensive causation and forensic examination of [Cornell’s] relevant medical records, conducted comprehensive medical examinations and repeated laboratory tests of [Cornell] since April 23, 2004, with follow-up examinations (6/21/04, 7/29/04, 10/22/04, 8/4/05, 7/25/06, 9/29/06, 10/12/07) until the present time; considered consultation reports by primary care providers, Ear-Nose- Throat, allergy, rheumatology, women’s health and pulmonary care specialists. A copy of my reports and by said providers is annexed hereto collectively as Exhibit 17 [R.2819-2923]. She reported symptoms and a medical history that are consistent with the medical conditions and diagnoses of bronchial-asthma, rhino- sinusitis, hypersensitivity reactions, and irritation reactions of the skin and mucous membranes, requiring medical care and intervention. Furthermore, I critically reviewed the environmental investigations and microbial testing of her home by the various consultants, including Laurence Molloy (11/25/2003), J.C.Danilczyk (Green Circle Solutions) (3/30/2004), Pedneault Associates, Inc. (4/6/2004) P & K Microbiology Services, Inc. (3/24/04), Clayton Group Services (5/18/2004). Copies of these reports and the curriculum vitae of the persons conducting said tests are annexed hereto collectively as Exhibit 18. [R.2925-2987] 32 39. I have conducted a number of general and case specific laboratory (more than 15 different blood tests/panels that included an evaluation of the liver, kidney, immunology) (immunoglobulins), hormones (thyroid function), protein chemistry, heavy metal (lead), urinalysis, and detailed allergy functions (allergen specific IgE and IgG) (costing more than $2500), and respiratory functional tests (spirometry, inhaler studies, and diffusion tests; chest x-ray and CT- scan examinations). 40. By utilizing all these materials, as well as the specific medical and environmental testing, I made a determination, by the utilization of the differential diagnostic methodology, and the generally accepted scientific principles of the occupational/environmental medical causation analysis, that within a reasonable degree of medical certainty, the acute illnesses and serious complications [Cornell] experienced in the summer of 2004, and thereafter, was caused by her preventable exposure to the unsanitary, unhygienic conditions which existed at her apartment. 41. The unsanitary and unhealthy conditions included her exposure to excessive moisture and water damaged material; her exposure to moisture prone microbes including atypical fungi (mold not normally found in normal indoor environments) as well as their by-products, i.e., ß-1-3-glucans, allergens, microbial volatile organic compounds (MVOC), irritants (the decomposition of fungal cell wall and hyphae materials), mycotoxins and others particles, and her exposure to bacteria existing in that damp, moist environment [3-7]. Indeed, [Cornell] still exhibited in her blood, immune mediated hypersensitivity reactions (IG-antibodies) to microbes found typically in very wet and damp environments which are consistent with her medical history and exposure.” (emphasis and bracketed material added) (R.2499-2501) Dr. Johanning also explained the inapplicability of “Causation analysis” in clinical evaluations, and the basis for his “differential diagnosis” methodology 33 which has been accepted in the scientific community, as well as state and federal courts throughout New York, and around the country: “17. Several governmental reports, guidelines, and public health initiatives from the USA, Canada, and other countries are consistently stating, based on a peer and institutional review process, that moisture/dampness, and mold exposure in indoor environments, are a public health concern, and advise precautions regarding exposure and handling of such contaminated building materials because of the various possible adverse health effects. 18. The scientific standard for causation are rarely if ever met for all moisture and mold related health problems and illnesses - just like conditions as lung cancer and asbestos exposure in a worker who has been smoking for years – meaning that the patient’s history and clinical findings meet all the medical textbook descriptions, all the typical laboratory findings, experimental tests, and are consistent with all the epidemiological studies. 19. Obviously, there is no single scientific article that will exactly encompass and address all aspects of [Cornell’s] case, her health problems, and the environmental findings, and it will take professional knowledge and expertise to relate the specific case facts to the general science and theories. 20. I am convinced to a degree of medical certainty that my repeated medical evaluations and tests, as well as the analysis and review of the science, are in agreement with the published peer- reviewed literature of independent scientists and clinicians. 21. The distinction between causation analysis in clinical evaluations in the doctor’s office, and epidemiological or experimental laboratory studies, are not the same. In the doctor’s office, it is common that there is one patient with various health complaints and findings, that do not fit all textbook descriptions of illnesses, and exactly fit a given diagnostic criteria. In the clinical practice, the correct analysis and diagnosis of the health complaints, diseases and what “caused” it, is based on many factors, such as the 34 patient’s specific health history, the physician’s professional experience, health changes over time, and treatment response (including exposure cessation) and comparison with other patients with similar history and medical findings. No case and patient is identical; no medical test is perfect, and physicians quite frequently disagree regarding the correct diagnosis and specific causation because of different information levels, and their clinical experiences over time. 22. On the other end, in the epidemiological studies, the focus is not the individual patient evaluation (n=1), but rather group (n>1) differences concerning definable items (exposure factor x vs. disease outcome y) that are compared to strength of statistical associations or correlations. By definition, epidemiological studies can never make a diagnosis or prove specific causation, but are a statistical or mathematical tool in the process of causation analysis in combination with experimental studies, clinical case descriptions, and theoretical laboratory studies. 23. The methodology I used to assess the health effects of building dampness and mold exposure, in any given patient (including [Cornell]) is called “differential diagnosis”, and is the universally accepted methodology used by physicians to assess causation, and diagnose illness. Because it is the universally accepted methodology for diagnosing illness, my use of this methodology to assess and diagnose illness caused by building dampness, and mold exposure, has passed evidentiary challenges, and has been validated and affirmed by a number of courts around the country, including but not limited to: a. Supreme Court of Delaware (New Haverford Partnership, et al., v. Elizabeth Stroot, et al., C.A. No. 95C- 05-074, May 8, 2001); the United States District Court for the Eastern District of Washington (Ferguson, et al., v. Riverside, et al., No. CS-00-0097-FVS, February 5, 2002); b. the Superior Court of Massachusetts (Stevens v. Pirates Lane Condo Trust, et al.,ESCV 1996-00403, June 19, 2002); c. Charles Brandt and Nancy Brandt, Plaintiffs, v. Rokeby Realty Company, et al., Defendants Superior Court of 35 Delaware, Sussex County,C.A. No. 97C-10-132-RFS. Decided: July 7, 2006; d. Supreme Court, State of New York, County of Westchester, “Ilana Morris, an Infant by her Mother and Natural Guardian, et.al vs. New Property Associates, et.al” Index No.9313/05 entered August 27, 2007; e. Supreme Court, State of New York, Cayuga County Index No. 98-0178 (Corning, J.) “Deborah.Netti, et,al vs. Auburn Enlarged City School District” entered September 21, 2006, affirmed, 45 A.D.2d 1339, 845 N.Y.S.2d 614 (4th Dept. 2007); Copies of these decisions are annexed hereto collectively as Exhibit 6. (R.2577-2684). 24. Occupational and Environmental physicians are also trained in diagnosing the cause of an illness. I considered all of the following information in arriving at my conclusion concerning [Cornell’s] physical condition and its cause, which include the basics: a comprehensive medical, occupational, and environmental history of the patient; a review of other competing or confounding environmental/occupational exposures; a detailed physical examination; diagnostic laboratory studies; review of other medical providers’ findings; consistency with the known medical and scientific literature; as well as a review of the details of the environmental and exposure data. Based on my consideration of all the information available, it remains my opinion to a reasonable degree of medical certainty that [Cornell’s] irritative and allergic- type symptomatology was caused by exposure to building dampness, and excessive and atypical mold exposure over time at her apartment. 25. The method of the causation analysis was based on generally accepted methods in the field of occupational and environmental health science and practice. My environmental history, and examination, and method of a case specific differential diagnosis methodology has been described elsewhere in more detail. Newman, L. S. 1995, "Occupational Illness", N.Engl.J.Med., vol. 333, no. 17, pp. 1128-1134; J. La Dou (ed.) Current Occupational & Environmental Medicine, pp.6 to22, 1997 [attached hereto, respectively, as Exhibits 7 and 8 (R.2685-2708].” (R.2491- 2494)(emphasis and bracketed material added) 36 APPELLANT’S “EXPERT” OPINION BASED UPON REVIEW OF DOCUMENTS PROVIDED BY COUNSEL AND NO PHYSICAL EXAMINATION OF CORNELL As the Court below concluded, by comparison, the “expert” upon whom Appellant relies, S. Michael Phillips, M.D., while acknowledging that “Mold is a particular problem in the developing world [and that] Poor hygiene, water contamination and inadequate public health measures combine to make mold- associated diseases major contributors to ill-health in the developing world” (R.2109-2110); and who admittedly did not ever examine Cornell; summarily concluded that “Mold found under floorboards generally constitute no significant exposure. Finding mold does not mean that the mold has caused any disease. The measurement of mold in the environment is often unnecessary and misleading. There are no established ‘safe’ or ‘toxic’ limits…”(R.2123). (emphasis added). Dr. Phillips concluded from examination of various medical records that “there is no relationship between the medical problems experienced by [Cornell] and exposures to molds…There is no evidence to conclude that the problems of [Cornell] were in any way related to exposure to molds or toxic exposures in her home” (R.2127) (bracketed material added). Aside from the fact that Dr. Phillips contended neither that mold nor other contaminants can never cause disease, nor that there are any scientific studies that 37 have so found, Dr. Johanning pointed out several other infirmities in the submission by Dr. Philips. Namely, “DEFENDANTS’ MEDICAL AFFIDAVIT AND THE BASES FOR DEFENDANTS’ CONCLUSIONS HAVE FUNDAMENTAL FLAWS, ERRORS, AND OMISSIONS 26. A careful reading of the Affidavit by Dr. S. Michael Phillips, as well as the exhibits attached thereto– with all respect to my medical colleague from Philadelphia - indicates a profound lack of training and experience in the medical specialty of environmental and occupational medicine and a lack of training in hygiene exposure assessment. Moreover, there exists a fundamental misunderstanding by Dr.Phillips of the relevant and current medical literature in the Environmental Health and Public Health fields relating to the adverse health effects that indoor microbial agents (including their by- products) have upon human beings. This misunderstanding is not surprising since, based upon my review of Dr. Phillip’s Curriculum Vitae (Exhibit 9) (R.2709-2722), it is clear that he has no formal training nor professional experience in this field. He also does not have any credentials in the fields of Occupational and Environmental Health nor Public Health. In particular, he has no demonstrated experience in environmental exposure and causation investigations and indoor environmental health research. Rather, he states a specialty in allergy diseases 3 which deals primarily with the identification and treatment of patients with “simple” IgE-mediated allergy (Type 1 in the Gell and Coombs categories), but not with the identification and treatment of patients experiencing complex non-allergic, infectious, or irritant/toxic disease outcomes resulting from microbial exposure. In addition, it appears that he is not a specialist in the fields of mycology (fungal), environmental biology, field testing (industrial hygiene sampling) nor the health effects of indoor fungi, mold, etc. and their by- products. Specifically, non-atopic (non allergy) adverse health effects from mold have been recognized by several authorities and in occupational medicine as well as toxicology (Exhibit 16) (R.2799- 2818). 38 27. Moreover, a review of the list of publications/articles contained on medline and in Dr. Phillips’s Curriculum Vitae indicate that he has never submitted, for peer review, any articles regarding the investigation of damp buildings, nor the adverse health effects that mold, fungi, and bacteria located in such buildings have upon human beings. In this regard, it should be noted that Dr. Phillips has personally never obtained from [Cornell] his own independent, comprehensive medical and environmental history, nor has he made any effort to physically examine or conduct any tests of her. In a complex case like [Cornell’s], it is generally and professionally recognized that these steps are key to performing a reliable causation analysis. Rather, it appears that the only source of Dr. Phillips’s knowledge is his review of the medical records and documents given by the defense attorney, and a very limited survey of literature, specifically, his review of articles written and disseminated by defense experts. These articles, for the most part, do not apply to this case, are simply motivated opinion papers, and are misleading, biased, and not based on original research.” (R.2494- 2496) (emphasis and bracketed material added) ___________________________________________ 3 The American Board of Allergy and Immunology (ABAI) was established in 1971 as a Conjoint Board of the ABIM (Internal Medicine) and ABP (Pediatrics). The internal medicine subspecialty existed from 1936-1971 and the pediatric subspecialty existed from 1944-1971.(see:http://www.abai.org/AboutABAI.asp) (R.2495)”. ARGUMENT POINT I THE COURT BELOW MADE PLAIN THE SIGNIFICANCE AND APPLICABILITY OF AN EARLIER DECISION AND APPLIED LONG STANDING PRECEDENT TO THE OVERWHELMING EVIDENCE OF RESPONDENT’S EXPOSURE TO A DANGEROUS “MIXTURE” OF CONTAMINANTS WHICH LED TO HER PHYSICAL CONDITION A. THE RECORD CONTAINS SUBSTANTIAL UNCONTRADICTED PROOF OF DANGEROUS SUBSTANCES THAT RESPONDENT WAS EXPOSED TO SHOWING BOTH PROXIMATE AND SPECIFIC CAUSATION ENTITLING CORNELL TO HER DAY IN COURT 39 The appeal by Appellant is based upon a meritless description and distortion of the decision of the Court below which made plain that it was clarifying an earlier decision (involving plaintiffs with insufficient proof) which the trial court had misapplied, and simply applying long standing precedent to Respondent’s proof. It is abundantly apparent that no new law, or standard evaluating injuries alleged to be caused by exposure to dangerous substances, was articulated. The decision of the Court below, which afforded Cornell the opportunity to prove her case at trial, appropriately applied that precedent to this case, and warrants affirmance by this Court. In short, the Court below made plain that there was no absolute bar to a trial by a plaintiff like Cornell who demonstrated exposure to a horrendous “mixture” of contaminants15 15 The list has been referred to several times in this Brief, but must be emphasized, because notwithstanding the sophistry of Appellant’s argument with respect to “dosage”, or quantity of substance, or which substance caused which physical condition in Cornell, [rejected by this Court in Parker v Mobil Oil Corp., 7 N.Y.3d 343, 448 (2006)] Appellant can point to no authority which states that any one of these contaminants is not harmful if not toxic, and Cornell was exposed to them all. As set forth in the supporting affidavit of her treating physician, and supported by several uncontradicted environmental testing reports, among the “mixture” found in Cornell’s apartment were “Stachybotris, Chaetomium, Aspergillus, Penicillium, Alternaria, and a variety of fungi, mold, and mold spores indicative of a water damaged environment” (R.2486). (See also R.2472-2474, 2482-2483, 2505-2506,2925-2954, 2980-2982). Her apartment was also found to contain metals including lead, arsenic, barium, copper, iron, manganese, and zinc (R.2972-2973). and substantiated her claim with an extensive array of physical and medical testing and examinations by her treating physician, who has been widely certified and acknowledged as an expert in the field. 40 The principal issue before the Court below was whether its prior decision in Fraser v 301-52 Townhouse Corp., 57 A.D. 3d 416, 870 N.Y.S.2d 266 (1st Dept. 2008), app.dism. 12 N.Y. 3d 847 (2009), precluded Cornell from proceeding to trial. The Court unambiguously stated how its prior decision in Fraser should be read. Indeed, in the Fraser decision, the Court could not have said it simpler: “We stress that our holding does not set forth a general rule that dampness and mold can never be considered the cause of a disease only that such causation has not been demonstrated by the evidence presented by plaintiffs here”, 57 A.D.3d at 418, 870 N.Y.S. 2d at 268. (emphasis added). The trial Court in this case, however, felt constrained by Fraser, and inter alia, granted summary judgment to Appellant dismissing the complaint against it (R.7-24). In modifying that decision, the Court below specifically made clear that its prior decision did not establish a blanket rule barring plaintiffs in the First Department from proving their claim of injury due to exposure to microbiological agents and contaminants. As concisely stated in the very first sentence of its Decision: “The motion court incorrectly interpreted our ruling in Fraser [citation omitted] as setting forth a categorical rule requiring dismissal of [Respondent’s] toxic mold claim due to failure [to] meet the standard of scientific reliability set forth in Frye v. United States [citation omitted]. In Fraser, another case involving injuries 41 arising out of exposure to toxic mold, we affirmed dismissal of the plaintiff’s personal injury claim because the plaintiff’s submissions failed to raise a triable issue of fact. We never disavowed the underlying theory that exposure to mold, may, under certain circumstances, give rise to respiratory and other ailments. Indeed, this Court was careful to limit its holding in Fraser…” (emphasis added) (R.3217) The Court also concisely analyzed the proof assembled by Cornell, the analysis of same by her treating physician, and the host of environmental testing consultants, and applied the long existing standards of this and other Courts throughout New York. In brief, as held by the Court below: “The motion court erred in finding that [Respondent’s] proof was not ‘strong enough to constitute a causal relationship’ or that the methodologies used to evaluate her condition failed to meet the Frye standard. The focus of the Frye inquiry ‘should not be upon how widespread (a) theory’s acceptance is, but should instead consider whether a reasonable quantum of legitimate support exists in the literature for (an) expert’s views’ [citation omitted] … Since [Respondent’s] expert’s opinions relating [Respondent’s] condition to the mold infestation find ‘some support in existing data, studies (and) literature’ [citation omitted] namely, studies that have found a statistically significant relationship between mold and various respiratory maladies, the Frye standard is satisfied” [bracketed material and emphasis added] (R.3217-3219) It is well settled and it has repeatedly been held by the Courts in New York that, "the function of the Court on a motion for summary judgment is issue finding and not issue determination…If a genuine issue of fact is found to exist, summary judgment must be denied." Rowan v. Brady, 98 A.D.2d 638, 639, 469 42 N.Y.S.2d 711, 712 (1st Dep’t. 1983); See also CPLR §3212(b). Moreover, on a motion for summary judgment, statements contained in an affidavit filed in opposition to such motion must be accepted as true. Patrolmen’s Benevolent Association of the City of New York v. City of New York, 27 N.Y.2d 410, 318 N.Y.S.2d 477 (1971). “Summary judgment is a drastic remedy and should not be granted if there is any doubt as to the existence of a triable issue (citation omitted). It is not up to the court to determine issues of credibility or the probability of success on the merits, but rather to determine whether there exists a genuine issue of fact (citation omitted). Issue finding rather than issue determination is the key to summary judgment and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion.” Triangle Fire Protection Corp. v. Manufacturers Hanover Trust Co. 172 A.D.2d 658, 570 N.Y.S.2d 960 (2d Dept.1991). Here, there are multiple and material issues of fact that mitigated against the granting of summary judgment to Appellant. These issues of fact include, but are not limited to: (i) whether the “mixture” of microbial agents and metals found in Cornell’s apartment and to which she was exposed, caused, contributed to, or led to the several physical injuries suffered by Cornell; (ii) whether Appellant as owner of the building owed a duty to Cornell to maintain a safe and habitable 43 building free from dangerous and unhealthy conditions; (iii) whether Appellant breached that duty; (iv) whether Appellant had knowledge or constructive knowledge of conditions dangerous to the health, safety, and welfare of Cornell and other tenants in the building; (v) whether Appellant failed to properly address, repair, or cure conditions it knew was dangerous to the health, safety, and welfare of Cornell and other tenants in the building; (vi) whether the mold and water-damage conditions existing in the Building are latent defects; (vii) whether defective and/or dangerous conditions existed in the Building related to the presence of mold and mold growth, other microbial contaminants and metals, and a water-damaged environment, in both Cornell’s Apartment, and in the building; and (viii) whether Appellant failed in its duty to maintain and keep the Building in a safe manner, free from defects and dangerous conditions. The trial court virtually ignored all of these issues, among others, in summarily dismissing the complaint against Appellant. The reversal by the Court below was fully supported by the record, and was consistent with a number of other cases in other departments rejecting efforts to deny a trial to plaintiffs alleging injuries due to exposure to contaminants. In Rashid v. Clinton Hill Apartments Owners Corp., 70 A.D.3d 1019, 895 N.Y.S.2d 524 (2d Dep’t. 2010) the Court affirmed the trial court’s denial of defendant-premises-owner’s motion for summary judgment and dismissal of the 44 complaint in which plaintiffs therein, alleged they sustained personal injuries resulting from exposure to mold. The defendant-owner in Rashid, (just as Appellant here), contended that the alleged mold exposure did not cause the plaintiffs’ personal injuries. However, the Court held: “in opposition to [the defendant-premises-owner’s] prima facie showing that the existence of mold was not the proximate cause of the plaintiffs’ personal injuries, the plaintiffs raised a triable issue of fact by submitting the report of their expert [doctor] who opined that the mold caused their injuries. In light of the conflicting expert opinions, the Supreme Court properly denied [the defendant-premises-owner’s] motion for summary judgment [and dismissal of] the complaint 70 A.D.3d 1019, 1020, 1021, 895 N.Y.S.2d 524, 526 (2d Dep't 2010). (See also Lopez v. Gem Gravure Co., Inc., 50 A.D.3d 1102, 1103, 858 N.Y.S.2d 226, 228 (2d Dep’t. 2008) (plaintiff adduced sufficient evidence raising triable issue of fact concerning causation in connection with personal injury claim, and held “defendants submitted expert affidavits assailing the opinions of the plaintiff’s experts, which merely raised triable issues of credibility that are for a jury to resolve.”; Barbuto v. Winthrop University Hospital, 305 A.D.2d 623, 624, 760 N.Y.S.2d 199, 200 (2d Dep’t. 2003) (“issues of credibility are properly left to a jury for its resolution….In light of the conflicting medical expert opinions…the court properly denied respondents’ summary judgment motion.”). Similarly, in Cabral v. 570 West Realty, LLC, 73 A.D.3d 674, 900 N.Y.S.2d 373 (2d Dep't 2010) the trial court’s denial of the defendant-premises- 45 owner’s motion for summary judgment and dismissal of the complaint which alleged exposure to mold caused their personal injuries, was affirmed. The Court in Cabral found triable issues existed as to the cause of plaintiffs’ injuries and as to whether mold was capable of causing the alleged injuries particularly noting that a landlord had the burden of showing that there was no causal link, 900 N.Y.S.2d at 374. Moreover, in Kurtz v. Chicorp Financial Services, 286A.D.2d 753, 731 N.Y.S.2d 187(2d Dep’t. 2001) it was held that the trial court properly denied a motion for summary judgment dismissing the complaint and found triable issues of fact existed where the plaintiffs alleged they became ill as a result of exposure to mold in the building in which they worked. The allegation that certain biological contaminants has caused physical injury is not only not “novel”, but it has been consistently held not to warrant a Frye hearing. See e.g. Sweeney v. Farrell, 20 A.D.3d 872, 798 N.Y.S. 2d 613 (4 th Dept. 2005) [exposure to mold in office-no Frye hearing necessary]; Martin v. Chuck Hafner’s Farmer’s Market, 28 A.D.3d 1065, 814 N.Y.S. 2d 442 (4 th Dept. 2006) [exposure to aspergillis summary judgment denied]. See also Gayle v Port Authority , 6 A.D.3d 183, 775 N.Y.S. 2d 2 (1 st Dept. 2004); Lustenring v AC &S, 13 A.D.3d 69, 786 N.Y.S. 2d 20 (1 st Dept. 2004); and Nonnon v City of New York, 32 A.D.3d 91, 819 N.Y.S. 2d 705 (1 st Dept. 2009)[exposure to toxic substances dumped in landfill did not require Frye hearing]. 46 The Court in B.T.N. ex rel. Netti v. Auburn Enlarged City School District, 45 A.D.3d 1339, 1340, 845 N.Y.S.2d 614, 615 (4th Dep’t. 2007), affirmed the denial of summary judgment dismissing the complaint where plaintiffs alleged they had been harmed and injured from exposure to mold, and held that: “The record contains sufficient epidemiological evidence to support a finding of general causation, i.e. that the atypical molds found to be present in the school building can cause plaintiffs’ symptoms [citation omitted]. In addition, the affidavit of plaintiffs’ expert is sufficient to support a finding of causation. There is no requirement that an expert precisely quantify exposure levels or establish a dose-response relationship. Rather, an expert may use a methodology generally accepted in the scientific community in concluding that the particular exposure caused the plaintiffs’ symptoms [citations omitted]. Here, plaintiffs’ expert determined specific causation by the use of the scientifically accepted methodology of differential diagnosis.” (emphasis added) (See also Martin v. Chuck Hafner’s Farmers’ Market, Inc., 28 A.D.3d 1065, 814 N.Y.S.2d 442 (4th Dep’t. 2006) wherein the Court found plaintiff’s expert’s affidavit raised a triable issue of fact of whether plaintiff’s exposure to mold caused the injuries that plaintiff alleged he sustained; Jazylo v. Leong, 2007 WL 2174953 (Sup.Ct.Ulster CO. 2007), 2007 N.Y. Slip Op.31343(U) (Trial Order)(R.2516) wherein the court denied defendants’ motions for summary judgment and stated “ ‘it has been held that medical testimony is probative and 47 sufficient to raise an issue of fact as to whether a medical condition was proximately caused by exposure to molds’ (citation omitted.” (R.2520). Furthermore, in Daitch v. Naman, 25 A.D.3d 458, 807 N.Y.S.2d 95 (1st Dep’t. 2006), the Court affirmed the trial court’s decision denying defendants’ motions for summary judgment, therein, and held that the issue of whether mold caused plaintiff’s alleged injuries was among the fact issues that remained to be resolved. “The conflicting opinions of the parties' experts raise issues of fact as to…whether such mold caused plaintiff's alleged injuries.” 25 A.D.3d at 459, 807 N.Y.S.2d at 96 (1st Dep’t. 2006). See also Jackson v Nutmeg Technologies, Inc., 43 A.D.3d 599, 842 N.Y.S. 2d 588 (3rd Dept. 2007) wherein a trial court’s admitting of evidence of expert testimony concerning exposure to certain toxins was affirmed with the Court concluding “plaintiffs’ experts relied upon epidemiological studies, which are by no means a novel methodology for demonstrating a causal relationship between a chemical compound and a set of symptoms or a disease [citations omitted]” 43 A.D. 3d at 601, 842 N.Y.S. 2d at 590. The substantiation of the “mixture” of unquestionably harmful substances, and the extensive medical evaluation and testing of Cornell and her complex condition, plainly established entitlement to have her case tried. In short, and as already found in one trial in Civil Court, and affirmed by the Appellate Term, this 48 case involves a young woman, previously healthy, who was devastated by the dangerous, unsanitary, and unhygienic conditions that Appellant caused, permitted to exist in her apartment, or failed to remove; with the cause of her physical ailments, supported by an acknowledged expert in the field, which many courts have so determined (R. 2577-2684) and who is her treating physician; and where the conditions that led to her physical injuries was also previously substantiated and documented by many environmental inspections and scientists (R.2486,2505-2506,2925-2954,2971-2973, 2980-2982). Indeed, Dr. Johanning not only specializes and has vast experience in evaluating the effects that microbiological and other harmful substances have on patients, but here, he examined Cornell at the virtual outset of her illness and conducted comprehensive medical examinations and repeated laboratory tests between 2004 and 2007 through the date of the motions in the trial court, as well as conducted more than 15 different blood and other tests (R.2499-2500). The results of these tests are in the record (R.2819-2923). By comparison, Appellant relied on the opinion of a doctor who does not specialize nor even publish in the environmental and occupational medical field, and lacks experience or training in hygiene exposure assessment. That expert, however, concedes that “mold is a particular problem in the developing world [and that] poor hygiene, water contamination and inadequate public health 49 measures combine to make mold-associated diseases major contributors to ill- health in the developing world” (R.2109-2110).16 This Court can certainly take judicial notice of the extensive mold contamination problems throughout the country that have developed because of the recent rash of hurricanes, storms and flooding just in the last twelve months. The Occupational Safety and Health Administration of the U.S. Department of Labor recently issued two fact sheets in November and December, 2012 outlining the dangers of mold exposure during the Hurricane Sandy cleanup. [See Addendum]. In addition, there is a plethora of studies since the decision of the Court below which demonstrates the dangers resulting from exposure to mold. If we adopt the “association vs. cause” theory that Appellant espouses, presumably because they contend that microbiological contaminants do not “cause” harm to people, why should there be any concern? To ask the question answers it. It is because such a theory makes no sense. Mold, microbiological contaminants, and metals, are harmful. This case presents the uncontradictable and unique circumstance that Cornell was exposed to a mixture of bad, harmful contaminants which even separately can be dangerous, but together formed a devastating brew that permanently ruined her life. It has been overwhelming proven that the mixture 16 He also admitted that “the measurement of mold in the environment is often unnecessary and misleading. There are no established “’safe’ or ‘toxic’ limits…”(R.2123). This is further proof that the “failure” to quantify how much of which harmful contaminant caused Cornell’s injuries is also immaterial. 50 included Stachybotrys, Chaetonium, Aspergillus, Penicillium, Alternaria and a variety of fungi, mold, mold spores and even metals. The New York City Department of Health requires the proper removal of such contaminants (R.2735-2754); organizations and publications as diverse as the American Academy of Pediatrics (R.2799) to The New England Journal of Medicine (R.2685); the National Institute for Occupational Safety and Health (R.2550) to name but a few from the record below; all have reported on what the deleterious effects of exposure to these contaminants are.17 www.fema.gov/news/newslrelease.fema?id=53181 In 2010, The Federal Emergency Management Agency issued a News Release on November 3, 2010, entitled “Mold Problems Can Lurk After A Flood” and can be found at stating: 17 The World Health Organization has published “WHO Guidelines for Indoor Air Quality- Dampness and Mould”-2009, which begins with an Abstract stating: “Microbial pollution is a key element of indoor air pollution. It is caused by hundreds of species of bacteria and fungi, in particular filamentous fungi (mould), growing indoors when sufficient moisture is available. …The review concludes that the most important effects are increased prevalences of respiratory symptoms, allergies and asthma as well as perturbation of the immunological system”. The “Executive Summary” (at page xiii) states: “Sufficient epidemiological evidence is available from studies conducted in different countries and under different climactic conditions to show that the occupants of damp or mould buildings, both houses and public buildings, are at increased risk of respiratory (cont’d) symptoms, respiratory infections and exacerbation of asthma. Some evidence suggest increased risks of allergic rhinitis and asthma….There is clinical evidence that exposure to mould and other dampness-related microbial agents increase the risks of rare conditions, such as hypersensitivity pneumonitis, allergic alveolitis, chronic rhinosinusitis and allergic fungal sinusitis.” (emphasis added) A copy of the full report was provided to the Court below and is included in the Addendum. See also the more recent (November, 2012) study published by the National Institute for Occupational Safety and Health entitled “Rhino Sinusitis and mold as risk factors for asthma symptoms in occupants of a water-damaged building.”, Indoor Air, NIOSH, 2012 51 “Mold in flood-damaged houses can cause health problems if it is not eliminated. People with asthma, allergies and other breathing conditions may be more sensitive to mold, and people with immune suppression are more susceptible to mold infections, according to the U.S. Centers for Disease Control. The Federal Emergency Management Agency and the North Carolina Department Health and Human Services encourage people returning to homes flooded during Tropical Storm Nicole to treat mold thoroughly and seek professional help if the mold is extensive. * * * Here are some excerpts on what to look for when you are repairing a flooded home: * Remove mold and mildew… * Check out the floors. Carpet and padding cannot be cleaned well enough to prevent mold and mildew from growing. Throw them away. Take out the flooring and sub-flooring if they cannot be completely cleaned and dried or if they have started to deteriorate. Crawl spaces should also be cleaned out and dried. * Dry out walls and check heating and air-conditioning systems. Walls that were wet should be stripped to the studs and the insulation removed. Walls must remain open to allow them to completely dry. Heating and air-conditioning systems that contacted floodwater can be hiding places for mold.”(emphasis in original) Cornell should not have been denied the opportunity to prove her claims at trial. Her adverse health condition is real; the dangers posed by the assortment of toxic contaminants she was exposed to are real; she did nothing to contribute to the conditions that affected her; and the evaluation of her, as well as proof of what harmful things she was exposed to, have been fully substantiated. The sole opposing “expert” affidavit by a doctor who neither examined Cornell, nor has apparent relevant experience to opine, at best, raised a 52 question of fact mitigating against summary dismissal of the complaint, which the Court below properly reversed. B. THE METHODOLOGY USED TO DETERMINE RESPONDENT’S PHYSICAL INJURIES DUE TO TOXIC MOLD EXPOSURE HAS LONG BEEN SCIENTIFICALLY ACCEPTED AND ACKNOWLEDGED BY THE COURTS AND THE EFFORT TO PROPOUND A “QUANTITY” TEST HAS BEEN REJECTED BY THIS COURT Appellant’s attempt to resurrect the long rejected “dose-response” or “quantity” test, has been rejected by the scientific community, and by this Court; and the extensive detailed testing of Cornell by her highly qualified and experienced treating physician utilizing the accepted differential diagnosis methodology is substantiated in the record and thoroughly reviewed by the Court below. Respondent cannot improve upon the concise way the Court below addressed the “quantity” argument, which stated: “The Court of Appeals, in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), made clear that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" (Parker, 7 NY3d at 448; see Wright v Willamette Indus., Inc., 91 F3d 1105, 1107 [8th Cir 1996] ["We do not require a mathematically precise table equating levels of exposure with levels of harm, but there must be evidence from which a reasonable person could conclude that a defendant's emission has probably caused a particular plaintiff the kind of harm of which he or she complains"])”.(R.3230). Similarly, the summary of the detailed and exhaustive analysis by 53 Cornell’s treating physician was also fully detailed by the Court below, and warrants review and affirmance: “Defendants and [Cornell] cross-moved for summary judgment. Defendants' expert, Dr. Michael Phillips, M.D., acknowledged that "[m]olds can cause a wide spectrum of illnesses, including allergies, irritation, hypersensitivity pneumonitis and direct infection." Defendant's expert opined that mold was "ubiquitous" and that mold under floorboards "generally constitute no significant exposure." [Appellant's] expert did not examine [Cornell] in arriving at his conclusion that mold had not caused her ailments, concluding, upon a review of her medical records, that "in the case of Ms. Cornell, molds caused no significant, objectively documented illness." [Cornell] relied on the affidavit of her treating physician, Dr. Eckhard Johanning. Dr. Johanning opined that exposure to damp buildings with excessive and atypical mold contamination was a recognized cause of respiratory health complaints and conditions such as asthma, rhino-sinutis, bronchitis, allergy, infections and irritant-type reactions of the skin and mucous membranes. Dr. Johanning opined, with a reasonable degree of medical certainty, that[Cornell's] irritative and allergic-type symptomatology was caused by exposure to building dampness and excessive and atypical mold exposure, over time, at her apartment. In arriving at his conclusion concerning [Cornell's] physical health and its cause, Dr. Johanning considered [Cornell’s] medical and occupational history and history of environmental exposure, other competing/confounding environmental/occupational exposures, a detailed physical examination of [Cornell], diagnostic laboratory studies, the medical and scientific literature, and details of the environmental and exposure data. (R.3223) Dr. Johanning conducted a number of different blood tests/panels that included an evaluation of the liver, kidneys and immunological system, hormones (to assess thyroid function), protein chemistry, heavy metal analysis, urinalysis, allergy specific IgE and IgG, and respiratory function tests such as spirometry, inhaler studies and 54 diffusion tests, and other examinations. Dr. Johanning opined that [Cornell] still exhibited immune mediated hypersensitivity reactions (IG antibodies) to microbes typically found in very wet and damp environments, consistent with her medical history and exposure. Dr. Johanning stated that in arriving at a conclusion assessing the health effects of building dampness and mold exposure in [Cornell] (or any other patient), he used a differential diagnosis, the universally accepted methodology used by physicians in assessing causation and diagnosing illness.(R.3224) Dr. Johanning stated there was "no question" that the conditions existing in [Cornell’s] apartment, including dust, microbial growth, mold, heavy metals and a diversity of fungi and bacteria that had come up through the floorboards and the air shaft in the apartment as a result of demolition work in the basement, contamination from flooding, as revealed by long-term water damage, as well as dust, standing water, moisture and streaking on the walls, "had a host of deleterious effects" on [Cornell’s] health. In forming his opinions, Dr. Johanning relied on a number of peer- reviewed studies, including a 2004 publication of the Institute of Medicine in the National Academies, entitled Damp Indoor Spaces and Health, relied upon by the Fraser plaintiffs, as well as two studies which post-date Fraser, a 2007 study entitled Excess dampness and mold growth in homes: An evidence-based review of the aeroirritant effect and its potential causes (28 Journal of Allergy and Asthma Proceedings, May/June 2007), and an article published in 2008 entitled Hydrophilic Fungi and Ergosterol Associated with Respiratory Illness in a Water-Damaged Building (116 Environmental Health Perspectives, June 2008). … These studies found statistically significant relationships between visible mold growth and eye, nose and throat/respiratory symptoms. The second study found that among workers in a building with long- term water damage, "respiratory illnesses showed significant linear exposure-response relationships to total culturable fungi." (emphasis and bracketed material added) (R.3225-3226) 55 Finally, the soundness of the methodology used by Dr.Johanning was also properly summarized by the Court below: “It is undisputed that exposure to toxic molds is capable of causing the types of ailments from which [Cornell] suffers. [Cornell's] expert, via differential diagnosis, arrived at the scientifically sound conclusion that exposure to the toxic molds in plaintiff's apartment was a cause, within a reasonable degree of medical certainty, of her documented medical ailments. The motion court reasoned that "Fraser rejected Dr. Johanning's claim to have established causation by means of 'differential diagnosis.'" However, this Court has never rejected differential diagnosis as an unsound scientific procedure. Rather, this Court has stated that in order to be considered as a possible cause, in a differential diagnosis matrix, a given agent must be capable of causing the harm observed.[citation omitted] Here, on the other hand, [Cornell's] expert and [Appellant’s] experts all agree that mold is capable of causing the ill-health effects experienced by [Cornell]. [Cornell's] expert opined that "[m]olds can cause a wide spectrum of illnesses, including allergies, irritation, hypersensitivity pneumonitis and direct infection." [Appellant’s] expert did not examine [Cornell] in arriving at his conclusion that mold had not caused her ailments…”(emphasis and bracketed material added) (R.3232-3233) POINT II APPELLANT HAD LONG-TIME KNOWLEDGE OF DANGEROUS CONDITIONS IN THE BUILDING WARRANTING THE CLAIMS AGAINST IT Appellant’s claim to non-culpability for the injuries suffered by Cornell is principally based upon its contention that: (i) said injuries arose after demolition effected by the other defendants barely a month after Appellant sold the building; and (ii) that Appellant had acted “reasonably” by 56 applying bleach to some areas of the building where mold was found to exist months and years before it sold the building. Neither of these claims justified summary dismissal of the complaint against it whether for negligence, mental/emotional distress, or punitive damages, and the Court below properly reinstated them. It is uncontradicted and fully documented that Appellant had knowledge of the existence of mold in various areas on the basement level of the building since 1998, nearly five (5) years before it sold the property and received numerous complaints from the tenant who had an apartment on that level, Judith Shotwell. Thus, at the deposition of Geoffrey Shotwell (“Shotwell”), the principal of Appellant, he admitted his familiarity with years of water penetration problems in the basement. He testified: “I explained to you, we determined the source of the water to be coming from the drain system of our neighbors and had that repair effected, which stopped the infiltration into our building.” (R.2290). He admitted that Judith Shotwell, complained about the leaks (R. 2290- 2291); and also complained to him about the presence of mold in the basement (R.2292); and that tests conducted showed the presence of mold (R. 2298). He also admitted that there was a leak in the basement in June 2003 (R.2291); and that there were four or five water intrusions into the 57 building that he discussed with Mrs.Shotwell (R. 2292). Although Shotwell asserted that he treated the affected area, which he referred to as “damp”, “with bleach” (R.2294-2295), there is nothing in the record to show why “treatment” of anything with bleach is the appropriate treatment to remove harmful mold, and Shotwell made no showing of his credentials to determine how to remediate mold. It is apparent that Appellant was sufficiently concerned about the existence of mold in the basement to have ordered testing for mold as reflected in the report dated October 14, 1998 (R.3051-3058) which was sent directly to Shotwell. In addition, a second report was commissioned and sent to him in July, 2003 (R.3059-3068). The 1998 report found the presence of mold and recommended specific remedial actions (R.3061). That 2003 report (R.3051 -3058) noted the presence of mold in the basement, “mold stained sheetrock walls, and a variety of harmful organisms including Aspergillis fumigatus, A.versicolor, and penicillium”(R.3051,3058) and most revealingly showed that the testing was in response to the “tenant concerns regarding mold”, and discovery of organisms in the apartment of a tenant in the basement “which are a potential concern based upon the tenant’s pre-existing health status” (R.3051). The record does not show what, if anything, Appellant did following receipt of either of the reports. 58 Among the material factual issues with respect to Appellant’s culpability and responsibility to Cornell, are the actions it took over the years between 1998 and 2003 to remediate the mold conditions from numerous floods it knew to exist, and the responses to complaints from a resident, Mrs. Shotwell, who had been complaining about her physical health from adverse building conditions. Indeed, even in 2003, contrary to Appellant’s bald “reasonableness” claim by using bleach, page 2 of the July 9, 2003, report (R.3061), states, in the “Conclusions” section, that cleaning and retesting needed to be done. Under “Recommendations”, it lists five things that the owner (Appellant) should do to remediate the condition. The use of bleach was to be done in a very specific manner, portions of sheetrock were to be removed so that other areas could be inspected for staining, generation of dust should be reduced, and a dehumidifier installed (R.3061). That “limited inspection”, concluded with the warning: “For a variety of reasons, we offer no guarantee that all mold conditions were identified during our inspection/testing service, or that recommendations will result in a correction of the water/mold conditions identified” (R.3062) (emphasis added). The “reasonableness” of Appellant’s commissioning only a “limited inspection”, and its apparent failure to advise the other defendants, or Cornell, of the dangerous conditions discovered, or recommendations made in two different testing reports, and whether its conduct was willful, wanton or in 59 disregard of the health and safety of Cornell and other tenants, are among the issues to be tried in the determination of Appellant’s culpability for the injuries that Cornell suffered. It was plain that dangerous conditions in the basement still existed in 2003, prior to Appellant’s sale of the building, as described in a letter from the basement tenant (Mrs. Shotwell) sent to the other defendants (R.3032- 3033). Ms. Shotwell in a letter dated September 25, 2003, stated, among other things, that, “5.There is dust & mold everywhere and must also be carefully handled according to OSHA & DEP safety standards” (R.3032) and the affected areas screened off. While it is true that Cornell’s injuries were triggered after demolition and unsafe removal of materials occurred a short time after the sale of the building by Appellant; which led to toxic substances emanating up through the basement ceilings through the floors and shaftways into Cornell’s apartment, Appellant’s responsibility should not have been summarily dismissed. The toxic substances dispersed by the new owner were not created overnight, the day after the sale of the building. Cornell was entitled to show that these substances were present in the basement, literally “an accident waiting to happen”, while Appellant owned, controlled, and was responsible for known hazardous conditions in the building which it failed and refused to address. The existence of dust and mold were in existence during Appellant’s long time ownership of the building. Its failure to properly remediate same created the conditions which ultimately led to Cornell's injuries. The claims for Appellant's responsibility for its actions and inaction, were properly reinstated by the Court below. CONCLUSION For all of the above cited reasons, the order of the Court below, Supreme Court, Appellate Division, First Department, entered March 6, 2012, should be affirmed in all respects, together with costs. Dated: New York, New York July 1,2013 Morrell 1. Berkowitz Joseph V. Aulicino Of Counsel 00441628.DOC Yours, etc. orrell 1. Berkowit Attor eys for Plaintiff-Respondent 845 Third Avenue-8th FIr. New York, New York 10022 (212) 935-3131 60