Judges to Consider City Plan for Union Square Park Restaurants

, New York Law Journal

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The pavilion at the north end of Union Square Park
The pavilion at the north end of Union Square Park

The case concerns Peerless Insurance Company's refusal to pay the replacement costs of an Executive Plaza-owned building destroyed by fire in Island Park, Nassau County, in July 2007.

Due in part to zoning problems, Executive Plaza did not "substantially replace" the building and sued the insurer for what it said was outstanding replacement costs provided for in the insurance contract until well after the two-year period had passed.

Mold Exposure

The mold exposure case, Cornell v. 360 West 51st Street Realty, 16, may hinge on the interpretation of another resident exposure case that also came from the First Department, 2008's Fraser v. 301-52 Townhouse Corp., 57 AD3d 416.

An appeals panel decided in 2012 that Supreme Court Justice Marcy Friedman interpreted Fraser too broadly when she dismissed tenant Brenda Cornell's suit against her landlord. The panel restored Cornell's claim that she was exposed to toxic mold and other substances because of a steam pipe break, a water leak and other deficiencies in her Manhattan apartment.

The First Department said Friedman misinterpreted Fraser as barring all toxic mold claims. In fact, the First Department maintained in a decision by Justice Sallie Manzanet-Daniels, the appeals court "never disavowed the underlying theory that exposure to mold may, under certain circumstances, give rise to respiratory and other ailments" (NYLJ, March 7, 2012).

The property owner contends that by not following Fraser as interpreted by Friedman, Cornell will be allowed to bring claims of illness due to mold exposure that she cannot prove through testimony that is accepted in the scientific and health communities.

In an amicus curiae brief, the Council of New York Cooperatives and Condominiums urged the Court of Appeals to abandon the First Department's ruling in Cornell. The group, which represents the owners of more than 2,000 cooperatives and condominiums in the New York City area, said the case could open the "floodgates" to tenants' litigation based on unsubstantiated health claims from exposure to mold.

Cornell claimed she experienced a body rash, fatigue, disorientation, shortness of breath, fatigue and headaches from being in her apartment.

The court will hear Cornell on Jan. 14.

Oral arguments before the Court of Appeals are webcast live through the court's website at www.nycourts.gov/ctapps/.

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