Does a landlord's knowledge of a water leak in a tenant's apartment trigger liability for ensuing mold-related injuries?
The Appellate Division, First Department, doesn't think so.
In Litwack v. Plaza Realty Investors, Inc. , the AD1 concluded that the mere presence of moisture together with a small leak in a steam pipe did not, as a "matter of law," comprise notice of a "potential for mold growth."
Without other evidence establishing that the owner had been aware of a mold condition, the AD1 affirmed the New York County Supreme Court's dismissal of Wendy Litwack's personal-injury lawsuit.
In an interesting twist, a lone dissenter, Justice David Saxe, noted his disapproval of the majority's decision and opined that the case should have proceeded to trial. He observed:
Evidence of defendants' knowledge of ongoing water leak problems, based upon plaintiff's repeated complaints about the growing brown discolored spot and the surrounding wetness on a wall in the apartment, as well as other leak conditions of which she and her parents before her had repeatedly complained, was enough to create a question of fact as to whether defendants had notice of the potential for the mold growth that allegedly caused plaintiff's injuries ....
Since Litwack may now appeal the case to our state's highest court, her options to have this dismissal reversed haven't evaporated, just yet.
A fix is necessary.
For a copy of the Appellate Division's decision, please use this link: Litwack v. Plaza Realty Investors, Inc.