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.


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