Daily Development for Wednesday, May 5, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
LANDLORD/TENANT; LANDLORD’S LIABILITY FOR INJURY TO TENANTS; STATUTE OF
LIMITATIONS; MOLD: Tenant’s cause of action against her landlord for exposure to
mold began to accrue at the time tenant began suffering from health problems,
even though she did not discover the source of the problems until almost 5 years
after the exposure.
Martin v. 159 West 80 Street Corp., 770 N.Y.S.2d 720 (A.D. 1 Dept. 2004).
Tenant alleged that ongoing water leaks in her apartment began in 1993 but such
problems were not clearly evident until 2001 when repairs on a defective boiler
in tenant’s building exacerbated the leakage problems and resulted in the odor
of mildew and the appearance of black mold on the interior walls of tenant’s
apartment. Tenant then hired an air quality consultant and registered
environmental assessor who determined that significant amounts of bacteria and
fungi and in particular, Stachybotrys Chartarum, a highly toxic fungus which can
adversely affect the health of humans through inhalation, ingestion and skin
contact, were present in her apartment.
The court held that because it was given that tenant had experienced physical
problems for 5 years before 2001, the statute of limitations on her personal
injury claim had clearly expired. Since Tenant did not claim that the medical or
scientific community generally lacked information that molds similar to those in
her apartment could lead to her illness, she could not rely upon the extension
of the limitations period created by CPLR 214-c(4).
The court went on to note that Tenant still had a claim based upon the breach of
warranty of habitability. It did not explain whether that claim would comprehend
the physical ailments that plaintiff alleged she suffered in prior years.
Comment: Note that not all jurisdictions will recognize a personal injury claim
based upon the implied warranty of habitability. It further is not clear whether
the court is suggesting that such a claim would not be barred by the same
statute of limitations described here. Clearly the plaintiff would have a claim
for diminished habitability of the premises, which she could use to offset rent,
for the period of time measured by the statute of limitations, since the
landlord’s duty to her was ongoing. Perhaps the court is suggesting that the
ongoing nature of the landlord’s duty gave rise to a continuing tort claim as
well.
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