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New York Appellate Court Finds Plaintiffs in Toxic Mold Case Could Satisfy Frye Standard

Giving a potential boost to plaintiffs claiming injury due to toxic mold exposure, a New York appellate court held that the plaintiff-appellant’s toxic mold claims may meet the Frye standard of scientific reliability. Cornell v. 360 W. 51st St. Realty, No. 01643 (N.Y. App. Div. Mar. 6, 2012), available at http://www.nycourts.gov/reporter/3dseries/2012/2012_01643.htm. The appellate court found that the lower court had incorrectly interpreted the appellate court’s earlier decision in Fraser v. 301-52 Townhouse Corp., 57 A.D.3d 416 (2008), when it held that the expert testimony put forth by the tenant was inadmissible and that the tenant did not meet her burden to quantify her exposure level to the mold. 

The tenant had lived in a ground-floor New York City apartment since 1997. Cornell, slip op. at 3. After the basement of the building flooded in 2002 and 2003, the landlord renovated the basement. Shortly after renovations began, the tenant claimed to have experienced "dizziness, chest tightness, congestion, shortness of breath, a rash, swollen eyes, and a metallic taste in her mouth" as a result of toxic mold disturbed by the renovations. Id. The tenant withheld rent on this basis. The landlord commenced an action for past due rent and the tenant asserted counterclaims for, inter alia, constructive eviction and breach of warranty of habitability. Id.

After the New York City Civil Court found in favor of the tenant, the New York County Supreme Court granted summary judgment for the landlord. Id. at 6. The Supreme Court held that plaintiff’s scientific theory of causation was the same theory rejected by the Appellate Division in Fraser, thus mandating the dismissal of the plaintiff‘s claim because it failed to meet the Frye standard for reliability. The court also found that plaintiff’s proof was not strong enough to constitute a causal relationship. Id.at 6-7.

On appeal, the Appellate Division reversed the lower court’s holding, stating that its decision in Fraser did not require dismissal of all personal injury claims based on exposure to mold. The Appellate Division held that plaintiff’s expert testimony has "some support in existing data, studies and literature, namely, studies that have found a statistically significant relationship between mold and various respiratory maladies." Id. at 2-3. The court cautioned that a Frye analysis should not focus on "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." Id. (quoting Marsh v Smyth, 12 A.D.3d 307 (2004) (Saxe, J., concurring)). The Appellate Division also rejected the view that a party alleging exposure to toxic mold has the burden of quantifying the level of that exposure, reasoning that ‘it is generally difficult or impossible to quantify a plaintiff’s exposure to a toxin." Id. at 7.