Ftema Raysor,
Plaintiff,
against
Ron McClaren,
Defendant.
|
CV-015992-13/K1
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.[FN1]
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 [FN2]
, to compel McClaren to correct certain conditions in her apartment, including
mold.[FN3]
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.
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 [*2]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.[FN4]
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.
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." [*3]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 [*4]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."[FN5]
Therefore, plaintiff has met the threshold requirement of showing that some sort of mold
may have been present in her apartment.
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 [*5]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 [*6]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
Footnotes
Footnote 1: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.
Footnote 2:It appears from the
Court files that the two Housing Court proceedings were merged.
Footnote 3:The Department of
Housing Preservation and Development found a number of violations, only a few of
them involving mold.
Footnote 4: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.
Footnote
5:http://www.lung.org/lung-disease/hypersensitivity-pneumonitis