MOLD IN A CO-OP/CONDO

My firm, in fact, represented a board that faced such a claim, and won. It involved a shareholder who had a ground-floor apartment with sliding glass doors that led onto the back patio. The doors leaked, and water started coming into the apartment. There was a dispute between the cooperative and the shareholder about who was responsible for repairing the doors, and so the leak went on for some time. As a result, mold developed in the apartment.

The co-op tried to fix the doors, but the initial repair was unsuccessful. So, the co-op board brought a contractor back, and repaired them again. Finally, the leak stopped and the mold abated — but not before the shareholder had brought a lawsuit claiming that not only had their property been damaged by the leaks and the mold, but that he and his family were suffering physical effects from exposure to the substance, including headaches, inability to concentrate, upper respiratory symptoms and lack of libido.

The family subsequently moved out of the co-op and sought millions of dollars of damages as a result of the relationship that they claimed between exposure to mold and damp conditions in the apartment, and the symptoms they were suffering. They had doctors ready to testify at trial that this connection existed.

In rebuttal, we initiated what's called a "Frye hearing, which is intended to test the quality of the scientific evidence that is being offered by a party to a litigation. It is a way of ensuring that an expert doesn't testify incorrectly; he or she must show that there is a scientific basis for the opinion offered by the expert witness. Only if the asserted scientific basis for the expert's opinion is generally accepted in the relevant scientific community will the expert be allowed to offer an opinion based on that science.

We challenged the connection that was being drawn between exposure to mold and damp indoor air conditions and the kinds of physical symptoms the plaintiff claimed to be suffering. The Frye hearing lasted for several days, with extensive testimony and voluminous scientific books and articles admitted in evidence, and we succeeded in getting a ruling from that court in our client's favor.

The court said that the plaintiff had failed to show the scientific basis in this case. The standard is that there must be general acceptance in the scientific community for the scientific principle that is being asserted. We demonstrated that, in this case, the asserted causal connection between exposure to mold or damp indoor air and the kinds of symptoms that the plaintiff was complaining about is not generally accepted.

As a result, all their personal injury claims and all of the millions of dollars of damages they were seeking were dismissed. The plaintiffs appealed that decision, and the Appellate Division of the New York Supreme Court in New York County issued a decision affirming the trial court's dismissal of the claim.

Recently, an attempt to appeal that decision to New York State's higher court, the Court of Appeals, was rejected. So, for the purposes of cases like this, a plaintiff must show a lot more than mere exposure to mold and some sort of symptoms. They'll have to show a connection that one caused the other, rather than both happening to occur at the same time.

Immediate Steps to Take

Even though we were successful, our basic advice to co-op and condo boards that are confronted with a mold legal situation is to deal with it immediately. If there is a source of water infiltration, the water should be stopped because water should not be coming into an apartment.

If there is a dispute about who is responsible for paying to stop the water from coming in, the co-op or condo board should not hesitate to perform the work and bill the cost back to the shareholder.

The board should not allow the water to come into the building and possibly cause damage and create mold, because that could lead to these kinds of lawsuits.

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