First published: Sep 2005
Litwack v. Plaza Realty Investors
The coincidence of the decisions in the two cases with different results led to reconsideration of the lower court case which was at variance with the one decided by the appellate division. As a result, the decisions were reconciled and the Litwack action was dismissed based on Beck. Despite this reconciliation, which provides that actual knowledge or notice of a mold condition itself is required to impose liability on a landlord, a landlord’s liability for mold conditions remains an emerging legal issue and further decisions can be expected. In the interim, steps can be taken by co-op and condo managers and boards to control both damage and liability. Preventive maintenance and prompt and appropriate remediation, using experienced specialists where indicated, are key. Identifying and repairing the source of water leaks will prevent recurrence
The Habitat “Case Notes” for June 2005 discussed two cases involving mold conditions in New York City apartments. Shortly after that column appeared, the court, in Litwack v. Plaza Realty Investors, changed its decision and dismissed the complaint on the ground that the defendants did not have actual or constructive notice of the condition at the premises that caused Litwack’s injuries. The decision on reargument follows.
The plaintiff was formerly a tenant at 200 East 33rd Street, Apartment 30G, in New York City, owned and managed by the defendants. She claimed that she suffered personal injuries from a toxic mold condition at the premises from April 1999 to July 2001, when she moved out. She said that the condition was caused by water leaks. The defendants moved for summary judgment, asserting that they did not have notice of the alleged toxic mold condition. That motion was denied.
The defendants then moved to renew and reargue based upon the recent decision of the appellate division in Beck v. J.J.A. Holding Corp. , decided on November 16, 2004, several days after the order in this case (discussed in the June 2005 “Case Notes”). They asserted that Beck, also a toxic mold case, supported their position that Litwack could not set forth a prima facie case of negligence, because it was undisputed that the defendants did not have notice of the mold condition until four months after she vacated the premises. Litwack contended that Beck was inapplicable.
This court granted renewal, and, upon doing that, granted the defendants’ motion for summary judgment, dismissing the complaint. It said that, in Beck, the court, for the first time, had clarified the issue of the landlord’s duty in a case where the tenant was alleging a mold condition in the premises caused personal injuries. In that case, the plaintiff’s apartment was flooded in September 1998, severely damaging the floor and the walls. The defendant landlord, at the plaintiff’s request, repainted the premises, and the plaintiff replaced the carpeting. The plaintiff claimed that afterwards, as a result of the flooding, hazardous mold contaminated her apartment. She alleged that, because it was foreseeable that water seeping into the walls would cause a dangerous accumulation of mold, the landlord breached its duty to maintain the premises in a safe condition by failing to abate the mold. She testified at her deposition that she was not aware of the mold condition until she received a report from Johns Hopkins Hospital in November 1999. She then moved out in December 1999.
In moving for summary judgment, the defendants argued that they did not create the condition, and had no actual notice of it prior to November 1999. They also contended that they did not have sufficient time to remedy the situation before the plaintiff moved out. The plaintiff then asserted that there was discoloration on the walls, which, along with the defendants’ knowledge of the water damage, should have put defendants on notice of the likelihood of mold contamination.
In affirming the lower court’s dismissal, the court held that Litwack failed to meet her burden to show that the defendants had either created or had actual notice of the mold hazard, and also failed to establish any other act or omission by the defendants which could have caused her respiratory ailments. It reiterated the lower court’s finding that the landlord did not have an ongoing duty to monitor the premises for the possible development of environmental hazards.
As in Beck, the defendants had demonstrated that they were first notified of the hazardous mold condition in November 2001, when Litwack’s attorney sent them a letter, demanding damages and remediation. This was four months after the plaintiff had moved out of the apartment.
At her deposition, the plaintiff admitted that she did not discuss her concerns with the defendants that there might be an environmental problem with the premises. There was an insufficient time period in which the defendants could be charged with constructive notice. The court said that Litwack’s evidence of the notice of water leaks and brownish spots on the dining room wall were insufficient to create notice. As the court in Beck found, the court here held that the defendants did not have an ongoing duty to monitor Litwack’s apartment for the possible development of an environmental hazard. Therefore, the defendants’ motion for summary judgment was granted and the claims for negligence were dismissed.
