Seems like Mold Times

Mold may be the new asbestos, but it’s not exactly a new problem. The Old Testament’s Book of Leviticus lays down, in no uncertain terms, the elaborate steps a priest must follow to cleanse a house of “mildew.” What’s new is that mold is now the stuff of high-dollar lawsuits, contentious insurance claims and a great deal of acrimony and confusion. Many co-op and condo boards in the city are awaiting an appellate court ruling in Fraser vs. 301-52 Township Corp., which will probably determine whether courts in Manhattan and the Bronx will be required to allow experts to testify that a plaintiff’s illness was caused by a moldy or damp environment. That ruling is expected by early 2009.

Meanwhile, one co-op in Greenwich Village has come up with a surprisingly effective – though far from painless – solution to the knotty problem of what to do when an apartment is invaded by mold. The story began to unfold last summer, when Evelyn Cogan was cleaning and moved the sofa in her studio apartment at 69 West 9th Street. She discovered that her floor was wet and there was a damp black stain on the wall.

Cogan has lived in the building since shortly after it opened in the late 1950s, and she served nine years on the co-op board, including a stint as president. She prizes the building’s private atmosphere and sense of community, so she acted methodically rather than hysterically. She alerted the super to the problem, and it was soon determined that the water was coming from an improperly installed ice-maker in the refrigerator of Cogan’s next-door neighbors.

Sue the neighbors? Raise hell with the co-op board? Not Evelyn Cogan.

“I don’t believe the corporation has a responsibility for the improper installation of an appliance in an apartment,” says Cogan, 77, who has retired after a long career in the fashion industry. “The person who put in the ice-maker incorrectly is responsible. This is something that happens between two neighbors, and it shouldn’t affect the rest of the shareholders.”

First, she talked to her neighbors, then she contacted her insurance company, and finally she alerted the co-op’s board and managing agent. “The first step is to give it to your insurance company and let them take it up with your neighbor’s insurance company,” Cogan says. “I didn’t ask [the board or property manager] for anything. I simply thought they should know that one of the apartments has mold.”

Georganne Lund, president of the board and a personal friend of Cogan’s, appreciated the non-confrontational, non-litigious approach. “I think it’s better for the shareholders to leave this to the two insurance companies entirely,” Lund says. “Right now it’s working, so there’s no reason for the board to get involved. That would only complicate matters.” However, Lund adds, if Cogan’s repair costs ultimately exceed her insurance coverage, the board might step in and try to persuade the shareholder who caused the problem to foot the bill.

The co-op’s proprietary lease spells out who is responsible for a wide variety of damages, says Lund. For example, the co-op must care for the building’s exterior, so if a leaky roof or window seal leads to damages, the board would handle it. Plumbing inside the walls is the co-op’s duty, while plumbing fixtures outside the walls are the shareholder’s. Similarly, shareholders are responsible for their floors but not subflooring.

“You have to look at each situation and see what the cause of the damage was,” says Lund. “People have to be willing to talk, and if that doesn’t work then the board and managing agent should get involved.”

“I agree that’s a very good way to go about it,” says attorney Steven Wagner, a partner at Wagner Davis who has extensive experience with mold-related litigation. “I would also advise people to check their insurance policies and make sure they have mold coverage – and remember that $20,000 is not enough. I would go for the unlimited coverage.”

But, Wagner adds, sometimes the proprietary lease does not provide sufficient guidance. “I like to use the touch test,” he says. “If you can see it and touch it, you’re responsible for it. Take a careful look at the proprietary lease. If the answer’s still not clear, you should consult an attorney and get an interpretation of legal precedents. What does the law provide in terms of building codes and housing maintenance codes? There can be a conflict between the law and the proprietary lease. And finally, do a negligence analysis. If there is some duty that is breached and damage results, then whoever was negligent would be responsible for all the damages, both personal injury and to property.”

But before she went to a lawyer, Cogan traveled to her insurance carrier and the co-op’s managing agent. Edith Schickedanz, the managing agent from Gumley Haft Real Estate, was able to refer Cogan to reliable contractors who could handle the delicate job of repairing her damaged parquet floor and plaster wall.

“We’ve been instrumental in her dealing with the neighbors and in providing information for their insurance companies,” says Schickedanz. “We’re trying to retain that neighborly friendship. Sometimes neighbors don’t take responsibility for their actions, so I get involved right away to ensure that it doesn’t get into a lawsuit.”

Here the tale gets a bit sticky. Cogan’s insurance company determined that her homeowner’s policy covers mold damage up to $5,000 but only if it is a “sudden occurrence.” Her case did not qualify, but the insurer agreed to reimburse her for water damage.

Cogan’s next step was to hire JLC Environmental Consultants to examine the damage. After conducting tests, Anna Tinker, a certified microbial consultant with JLC, determined that Cogan’s apartment contains potentially hazardous mold that should be professionally removed. (Mold is not a carcinogen, and only a handful of the 100,000 species are considered toxic. According to the Centers for Disease Control, people with allergies and immune deficiencies are particularly susceptible to health problems from exposure to mold.) By mid-October, Cogan had received one estimate of how much it would cost to remove the mold, and she was seeking two other bids.

From a legal standpoint, when mold causes property damage the responsibility is more clear-cut than when it causes personal injury, says Richard Siegler, a partner at the law firm of Stroock & Stroock & Lavan. “The issue of damages is pretty clear – the person who causes it has to fix it,” he says. “But so far there have been no cases providing for recovery of damages for personal injury in New York State.”

That, of course, could begin to change after the appellate court rules in the Fraser case.

While this story is mainly about the virtues of civility, it has a subtext: the vital importance of carrying up-to-date homeowner’s insurance – and knowing what your policy covers and what it doesn’t. Cogan is so convinced of this that she wrote an article stressing the point in the co-op’s fall newsletter.

Though this story may have an ending that’s satisfactory to all parties, don’t get the impression that having a mold-infested apartment is a day at the beach. Cogan had to pack up all of her belongings, clear out her apartment, then move out while her apartment was repaired. Several neighbors, in keeping with the spirit of the co-op, agreed to store some of her most delicate possessions.

While packing up her apartment, Cogan is frazzled but philosophical. “This kind of accident could happen to anyone. Sometimes these awful things happen – but the person who caused the damage has to make me whole.”

As for her decision to work through her insurance company rather than a lawyer, she observes: “Why use a sledgehammer when you can use a feather?” Adds Lund, the president; “Sometimes, people just need to communicate.”

Which is precisely what they did at 69 West 9th Street. “That,” says attorney Siegler, who has his share of experience in such matters, “is rare.”