Nicoletti, Gonson, Spinner, LLP

First Department Permits Mold Case Against Former Owner Of Property

In Cornell v. 360 W. 51st Realty, LLC, (2012 NY Slip Op 01643), decided on March 6, 2012, the First Department revisited its Fraser v. 301-52 Townhouse Corp.,[1] decision and held that plaintiff could maintain a cause of action for exposure to toxic mold in her apartment. The Court also permitted plaintiff to sue the prior landlord even though the exposure and injury occurred after the landlord sold the building.

In Fraser the First Department rejected plaintiff’s expert, Dr. Johanning’s attempt to show causation by means of differential diagnosis[2] because his data did not satisfy the Frye test as his theory was not generally accepted in the scientific community.

However, in Cornell, Dr. Johanning was plaintiff’s expert too. Dr. Johanning used the same differential diagnosis analysis but this time, he relied upon two post-Fraser studies. With the addition of these two studies, the Cornell Court in a 3-2 split decision found that Dr. Johanning had “easily satisfied the test of scientific reliability set forth in Frye” and plaintiff could maintain her case against the defendant.

The dissent questioned the Majority’s reliance on these post-Fraser studies contending that they did not satisfy the Frye test.

The Cornell case is also significant because the Court permitted plaintiff to maintain an action against the prior owner of the property even though the exposure and injury occurred after the sale of the property.

Comments: The Cornell decision falls in-line with decisions in some of the other New York Departments. We expect to see more toxic mold cases being filed by plaintiffs. The Cornell case also opens the door for actions against a prior landlord or owner of a building where mold had been present, even where new owner’s work caused the exposure to a plaintiff.

[1]57 AD3d 416 (2nd Dept. 2008), appeal dismissed 12 NY3d 847 (2009).

[2] The process of weighing the probability of one disease versus that of other diseases possibly accounting for a patient’s illness. The differential diagnosis of rhinitis (a runny nose) includes allergic rhinitis (hay fever), the abuse of nasal decongestants and, of course, the common cold.