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; LANDLORDíS LIABILITY FOR INJURY TO TENANTS; STATUTE OF LIMITATIONS; MOLD: Tenantís 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 tenantís building exacerbated the leakage problems and resulted in the odor of mildew and the appearance of black mold on the interior walls of tenantís 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 landlordís duty to her was ongoing. Perhaps the court is suggesting that the ongoing nature of the landlordís duty gave rise to a continuing tort claim as well.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.


DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 15 messages per work day.

Daily Developments are posted every work day. To subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message signoff DIRT to the address:

for information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named ďBrokerDIRT.Ē But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:


To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT.

Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.