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Not All Mold Exposure Is Actionable (NY)

June 21, 2013

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In <i><a href="">Rivera v. Crotona Park E. Bristow Elsmere</a>, </i>the infant plaintiff claimed that toxic mold exposure in his apartment caused asthma and pulmonary incapacity. The defendant eventually moved for summary judgment and that motion was denied.  However, the First Department reversed, holding that the defendant had established that plaintiff’s asthma and pulmonary incapacity were not related to the mold condition and the alleged causal relationship was speculative and uncorroborated.
The defendant set forth an expert affidavit that established that the infant plaintiff's asthma and pulmonary incapacity were caused by genetic and environmental factors not related to the mold condition, including medical records showing the infant plaintiff's significant allergies to cockroaches and cats, the extensive family history of severe asthma, and the presence of cigarette smoke, cockroaches and cats in the apartment. Plaintiff’s treating physician not only failed to sufficiently refute the defendant’s expert’s conclusions, but also attributed the plaintiff’s symptoms to his exposure to smoke, cockroaches and cats.  In addition, the plaintiff’s physician’s conclusions that the apartment was where the "presumed toxic exposure occurred" was based on plaintiff’s uncorroborated allegations without any scientific measurements. What’s more, the plaintiff failed to demonstrate that the defendant even had notice of the potentially harmful mold condition. 
The First Department correctly recognized that not all plaintiffs claiming mold exposure can recover, reaffirming that speculation regarding causation will defeat a plaintiff’s entitlement to recovery, as will the absence of corroborating scientific evidence.
Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at <a href=""></a>.

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