Opinion
CV-015992-13/K1
02-27-2015
Ftema Raysor, Plaintiff, v. Ron McClaren, Defendant.
Plaintiff Pro Se: Ftema Raysor P.O. Box 100676 Brooklyn, New York 11210 Attorneys for Defendant Ron McClaren: Rubin, Fiorella, & Friedman LLP 630 Third Avenue, 3rd Floor New York, New York 10017
Plaintiff Pro Se:
Ftema Raysor
P.O. Box 100676
Brooklyn, New York 11210
Attorneys for Defendant
Ron McClaren:
Rubin, Fiorella, & Friedman LLP
630 Third Avenue, 3rd Floor
New York, New York 10017
Katherine A. Levine, J.
Plaintiff Ftema Raysor ("Raysor" or "plaintiff") commenced this action in March 2013 for personal injuries she allegedly sustained from January 21, 2013, when she was exposed to mold while living at the premises located at 900 East 35th Street, Apartment c3, in Brooklyn. Defendant Ron McClaren ("McClaren" or "defendant") is a principal in Austin Clayton Holdings LLC, ("Clayton") the landlord of premises. Clayton had rented the apartment to Johnnie Mae Taylor, Raysor's mother, and Eleshia Fern, but Ftema Raysor claimed that she was entitled to occupy it.
It appears that plaintiff did not have a valid lease agreement with defendant and was staying in the apartment as a sub-lessee with the permission of her mother (then incarcerated), who was one of the lessees.
Clayton commenced a nonpayment proceeding against Raysor's mother and Eleisha Fern and joined Raysor as a respondent occupant in July 2013 under Index Number 72220/13. On July 8, 2013, the parties entered into a so-ordered stipulation of settlement, whereby Raysor consented to the entry against her of a judgment of possession and a money judgment for rental arrears, and the issuance of a warrant "forthwith," with execution of the warrant stayed until August 31, 2013, on the condition that she pay the amount of the judgment. However, plaintiff breached the so-ordered stipulation of settlement and failed to pay the judgment amount, resulting in the lifting of the stay against execution of the warrant. Plaintiff brought repeated orders to show cause to vacate the judgment and stay the eviction but continuously failed to appear on the return dates of her motions. The Housing Court denied her final motion by order dated March 6, 2014, because plaintiff did not demonstrate that she had the resources to pay the rent arrears of $13,930.65. On April 7, 2014, plaintiff was evicted.
Plaintiff commenced the current action for mold-related injuries concurrently with two other proceedings that she brought in Housing Part B under Index Numbers 6188/2013 and 6426/2013 , to compel McClaren to correct certain conditions in her apartment, including mold. On March 21, 2013, plaintiff entered into a so-ordered stipulation of settlement whereby McClaren agreed to correct the violations and plaintiff agreed to provide access to her apartment on two separate days in April 2013. However, plaintiff failed to comply with the stipulation and provide access. Plaintiff subsequently brought orders to show cause to restore the case to the calendar for a compliance hearing and to assess civil penalties against McClaren for failure to correct violations. As was the case in the nonpayment action, plaintiff continuously failed to appear on the return dates of her motions. On July 12 and 25, and September 12, 2013, the Housing Court again ordered plaintiff to provide access and McClaren to cure the violations, but plaintiff continued to be noncompliant and refuse access. By order dated September 26, 2013, the Housing Court denied plaintiff's final order to show cause because she failed to grant access to McClaren's workers to repair the violations.
It appears from the Court files that the two Housing Court proceedings were merged.
The Department of Housing Preservation and Development found a number of violations, only a few of them involving mold.
The gravamen of plaintiff's claims in the current action arises from an alleged mold condition in her apartment. Plaintiff claims damages in the amount of $150,000, with interest, from January 21, 2013, for failure to provide repairs, damage cause to person, failure to return and/or loss of property, failure to pay for insurance claim, and loss of time for work. Plaintiff claims that due to the mold, she suffered a plethora of injuries, including asthma, head and leg injuries, and memory loss.
Defendant moves to dismiss or preclude plaintiff's current claims for damage caused to person and loss of time from work because of her failure to comply with discovery orders and/or prove causation, or provide any factual or legal basis. Defendant further moves to dismiss plaintiff's claims for failure to provide repairs or to return property, and loss of personal property on the grounds of res judicata, collateral estoppel, and fraud. Finally, defendant moves to dismiss the "failure to pay for insured's claim" because plaintiff submitted an insurance claim for which she was already paid $2,107.57 and defendant is not her insurer.
In response to defendant's demand for particulars regarding the property damage claim, plaintiff submitted receipts for shoes, in the amount of $735.72, lingerie in the amount of $590.83, and a handmade custom human hair wig in the amount of $6,048, all having no apparent connection to the alleged mold injury condition. Furthermore, plaintiff made unsubstantiated claims that she donated clothing worth $50,000 due to damage, lost twenty pairs of shoes worth $5,000 per pair, and lost custom made furniture worth $20,000. In support of her claim that fur coats were taken by defendant from her apartment, plaintiff submitted certificates of appraisal based on pictures of fur coats, but not on her actual fur coats. There is no concrete evidence that the coats belonged to plaintiff or that defendant took them or any other item of clothing from plaintiff, much less any evidence that plaintiff reported such taking to the police. Accordingly, the Court dismisses plaintiff's claim relating to the loss of property and her duplicative claim of failure to return property.
Plaintiff's claim for failure to pay for insurance claims is similarly dismissed because it is interconnected with her claim for loss of property. Furthermore, it is dismissed pursuant to CPLR § 3126(3) because plaintiff failed to meaningfully comply with the order of the Hon. Judge Noach Dear, dated May 19, 2014, compelling her to produce within 20 days "all correspondence submitted by plaintiff to State Farm re: her subject claim for property damage for which she was paid $2,107.57; copies of all correspondence from State Farm re: the subject claim," and an "authorization to obtain the claim file for State Farm re the subject claim." See, Kihl v. Pfeffer, 94 NY2d 118, 122 (1999) ("When a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge's discretion to dismiss the complaint"). See also, Xiao Yang Chen v Fischer, 73 AD3d 1167, 1168 (2nd Dept. 2010) (Court dismissed plaintiff's cause of action for ear injuries because it was "clear from this record that the plaintiff willfully and contumaciously defied discovery orders of the Supreme Court by deleting from her computer's hard drive materials that she had been directed to produce"). Here, plaintiff only produced a letter from State Farm stating that plaintiff was receiving $2,107.57, and omitted the attached document outlining the basis for the payment.
The Court further notes that correspondence from State Farm Insurance Company indicates that plaintiff was paid $2,107.57 for the loss which she allegedly suffered on January 21, 2013.
Plaintiff's claim for damages resulting from defendant's failure to repair the mold condition is similarly dismissed because she repeatedly failed to comply with Housing Court orders directing her to grant the defendant access to her apartment to repair the violations. Id., 73 AD3d at 1168. The courts have held that "if a tenant complains and then refuses to allow the landlord to make repairs, he will not be entitled to damages and the claim will be dismissed." Leschins v. 3777 Independence Corp., NYLJ August 17, 2009, 2009 NY Misc LEXIS 2564, 242 NYLJ 33 (Sup Ct, Bronx County, Hunter, J). See also, Brookwood Mgt. Co. v. Melius, 2007 NY Slip Op 50247(U), 14 Misc 3d 137(A) (App. Term 2d Dep't 2007) (In nonpayment proceeding, court properly determined that tenant was not entitled to rent abatement when he claimed that he withheld rent because landlord failed to make certain repairs to his apartment, but proof at trial showed that tenant denied access to landlord's repairmen to remedy the conditions complained of).
An alternate basis for dismissal of plaintiff's claim for failure to repair is the doctrine of res judicata. Under this doctrine, "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding." Bayer v. City of New York, 115 AD3d 897, 898 (2d Dep't 2014). The criteria for res judicata are satisfied here. First, although the Housing Court's dismissal of plaintiff's failure to repair claim resulted from her noncompliance with court orders, it is still deemed to be on the merits. See, Strange v. Montefiore Hospital & Medical Center, 59 NY2d 737, 738-739 (1983) ("[A]lthough the prior judgment of Supreme Court does not specifically recite that it is 'on the merits', that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree"). See also, Yates v. Roco Co., 48 AD3d 800 (2d Dep't 2008) (Where plaintiff commenced an identical prior action against the defendants and such action was dismissed because plaintiff repeatedly failed to appear for an independent medical examination, it should have been accorded res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree, despite the fact that the Supreme Court decision did not explicitly recite that it was being dismissed on its merits); Barber v. Pfeiffer, 261 AD2d 495, 495-496 (2d Dep't 1999) ("Where a plaintiff's noncompliance with a disclosure order results in an order of preclusion so as to effectively close the plaintiff's proof, the dismissal of the complaint resulting from the noncompliance is on the merits").
Second, plaintiff raised her failure to repair claim in prior Housing Court proceedings where she had a full and fair opportunity to litigate these claims. Indeed, res judicata does not require that the precluded claim was actually litigated; rather, its concern is that the party against whom the doctrine is asserted had a full and fair opportunity to litigate the claim. EDP Med. Computer Sys. v. United States, 480 F.3d 621, 626 (2d Cir. 2007). See also, Koether v. Generalow, 213 AD2d 379, 380 (2d Dep't 1995) ("The doctrine of res judicata operates to preclude the renewal of issues actually litigated and resolved in a prior proceeding as well as claims for different relief which arise out of the same 'factual grouping' or 'transaction' and which should have or could have been resolved in the prior proceeding"). Since the Housing Court's dismissal of plaintiff's previous failure to repair claims is deemed to be on the merits, and plaintiff had a full and fair opportunity to litigate these claims in prior housing court proceedings, plaintiff's current failure to repair claim is barred by res judicata and is dismissed.
On the other hand, this Court rejects defendant's contention that plaintiff is barred by collateral estoppel from re-litigating her claim that mold in her apartment adversely affected her health. The issues litigated in the Housing Court were plaintiff's nonpayment of rent and defendant's unwillingness to correct violations and repair the damage caused by mold. The effect of the mold conditions on plaintiff's health was not considered by the Housing Court and therefore cannot be a basis for collateral estoppel. See, Curley v Bon Aire Props., Inc., 124 AD3d 820 , 2015 NY App. Div. LEXIS 730, 4-6 (2nd Dep't, Jan. 28, 2015) (Doctrine of collateral estoppel did not apply where the prior judgment granting possession to the landlord was based on plaintiff tenant's breach of the proprietary lease in failing to cover the apartment with carpeting or rugs, and plaintiff's claim in the subsequent action was that he was subjected to harassment based on his mental illness). See also, Cornell v. 360 W. 51st St. Realty, LLC, 2009 NY Slip Op 52707(U), 26 Misc 3d 1211(A) (Sup. Ct. NY Co. 2009), rev'd on other grounds, Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762 (2014) (Doctrine of collateral estoppel did not apply where the Housing Court's findings in a summary nonpayment proceeding as to the effect of mold on the plaintiff tenant's health were made in the context of determining the diminution in value of her apartment, and a full exploration as to effect of the mold on the tenant's health was not necessary to that determination).
This Court must next decide whether dismissal of plaintiff's claim for "damage cause to person" is warranted when plaintiff has failed to submit any proof of causation and has not complied with discovery requests in a meaningful way. The only evidence which may be relevant to plaintiff's claim for personal injury are reports from Mold Test USA and Hayes Microbial Consulting ("Hayes"). Mold Test USA performed a mold inspection for plaintiff in February 2013, and then sent two samples to Hayes for further testing. Hayes noted in its report that Aspergillus and Penicillium, types of fungi not related to water damage, were found in the bedroom and living room, but did not note any health hazards associated with exposure to these fungi. Hayes further noted that there was cladosporium on the bathroom and bedroom ceilings, which could potentially cause "hypersensitivity pneumoritis." The latter condition is defined by the American Lung Association as "a disease in which your lungs become inflamed when you breathe in certain dusts to which you are allergic." Therefore, plaintiff has met the threshold requirement of showing that some sort of mold may have been present in her apartment.
http://www.lung.org/lung-disease/hypersensitivity-pneumonitis
However, as fully set forth below, none of the doctors' notes submitted by plaintiff in any way establish that she suffered from asthma or any other alleged illness due to mold. Plaintiff submitted the following medical documents:
A medical history form from a dentist's office indicating that plaintiff had no history of any illness but used tobacco;
A letter from Dr. Jacqueline McGibbon stating that plaintiff was seen on 3/5/13 with complaints of shortness of breath and itchy skin, and that there was no previous documentation in the patient's chart of asthma or shortness of breath; however, the letter contained no current diagnosis;
A request for a pulmonary function test without plaintiff's or her doctor's name;
A bill from New York Community Hospital for unspecified laboratory services, radiology, neuro, pharmacy and emergency room services, rendered in February and April, 2013;
A hospital discharge form from New York Community Hospital dated January 28, 2013 (at around the same time of the subject loss), indicating that she had a head injury (a contusion to the scalp);
An undated letter from Dr. Abbas Qamar, stating his conjecture that plaintiff "possibly has hyper-responsive air ways while at home, suggest - change apartment;" and
A letter from nurse practitioner Lindsey Leinback, containing none of her own observations or diagnosis, stating that plaintiff complained of shortness of breath, wheezing, and patches of itchy skin.
None of the seven medical documents establish that the mold condition in plaintiff's apartment caused her any physical injury. In fact, none of the medical professionals even corroborated that Raysor objectively was suffering from the symptoms she complained of, much less that these symptoms were caused by mold. The symptoms allegedly suffered by plaintiff could be due to a multitude of factors. Plaintiff did not establish that she saw any expert who would verify that she suffered any medical condition caused by mold. See, Cornell v. 360 W. 51st St. Realty, LLC, 22 NY3d 762, 765 (2014) (To establish general causation, a plaintiff must establish exposure to a mold toxin which is capable of causing the plaintiff's illness; and to establish specific causation, plaintiff must establish that he or she was exposed to sufficient levels of the mold toxin to cause the illness.) Furthermore, the documents described in numbers (1), (2) and (7) above contain only the self-serving statements of plaintiff regarding her medical condition, which in the absence of objective corroboration by plaintiff's doctors, cannot be accepted for their truth. Beaubrun v. NY City Transit Auth., 9 AD3d 258, 259 (1st Dep't 2004); Nelson v. Distant, 308 AD2d 338, 339-340 (1st Dep't 2003); Taylor v. Jerusalem Air, Inc., 280 AD2d 466, 467 (2nd Dep't 2001).
It should also be noted that plaintiff submitted a letter from the Law Offices of Ilya Z. Kleynerman, that completely contradicts plaintiff's claims that she suffered a head injury as a result of mold allergies. Indeed, the letter states that the office represented plaintiff for neck and back injuries she sustained as a result of a motor vehicle accident which occurred on September 22, 2013.
The other evidence which plaintiff produced similarly does not prove causation between the mold condition and her alleged injuries. In response to defendant's demand for particulars regarding plaintiff's alleged loss of earnings, the name of her employer, and the number of days she was incapacitated, plaintiff provided a letter from Stuart Schechter, a photographer for the magazine "Illusion," stating that plaintiff was contracted for a "photo project" but that he had to give it to "another model for reasons of sickness." Schechter's letter did not confirm that plaintiff was a bonafide employee who ever did any paid work for him, nor did it mention the alleged mold condition.
In light of plaintiff's failure to substantiate her claimed illnesses with contemporaneous medical records or raise any triable issue of fact concerning specific causation between the mold condition in her apartment and her supposed illness, this Court finds that dismissal of plaintiff's complaint is warranted. See, Lyons v. North Shore Univ. Hosp., 279 AD2d 458, 459 (2d Dep't 2001) (Defendant was entitled to summary judgment dismissing the complaint where plaintiff's claims failed to raise a triable issue of fact that the defendant's negligence caused his injuries). In sum, not one of the medical documents submitted contains an objective medical conclusion that plaintiff had an illness that was related to mold.
Furthermore, plaintiff's continued evasiveness, noncompliance with previous court orders, and breaches of so-ordered stipulations warrant dismissal. See, CDR Creances S.A.S. v Cohen, 23 NY3d 307, 318 (2014) ("A trial court has discretion to strike pleadings under CPLR 3126 when a party's repeated noncompliance is dilatory, evasive, obstructive and ultimately contumacious"). See also, Kihl v. Pfeffer, 94 NY2d 118, 120 (1999) (Trial court did not abuse its discretion when it dismissed plaintiff's complaint against Honda Motor Co. because of plaintiff's failure to respond to Honda's interrogatories within court-ordered time frames); Pryzant v. City of New York, 300 AD2d 383 (2d Dep't 2002) (Trial court properly invoked the drastic remedy of precluding the defendants from offering the relevant evidence at trial where the "willful and contumacious character of the defendants' failure to respond to discovery can be inferred from their continuing noncompliance with a court-ordered stipulation to produce relevant records, repeated adjournments of the production date, and inadequate excuses for the failure to produce the records.") For the aforementioned reasons, the complaint is dismissed.
This constitutes the decision and order of the Court.
Dated: February 27, 2015_________________________________
HON. KATHERINE A. LEVINE
Acting Justice Supreme Court