Tenant's Claim of Gross Negligence Based on Black Soot in Unit Untimely

Shareholder tenant sued landlord cooperative corporation for breach of his proprietary lease, breach of the warranty of habitability, gross negligence, and breach of fiduciary duty. Tenant claimed that there was black soot coming from the building's boiler room that infiltrated his penthouse apartment. Between 2006 and 2010, tenant had complained repeatedly of water stains and mold in the apartment caused by roof leaks. He also said that, shortly after he moved into the unit in 2006, he saw black, soot-like dust accumulating in the apartment and around the walls.

Tenant completely renovated the unit in 2012 and 2013, and installed a Sheetrock drop ceiling, double-paned windows and exterior doors, and a central conditioning unit without a ducted return. Tenant claimed that the new windows and doors made the apartment "airtight." Tenant claimed that, after the reno, the black dust accelerated. By late 2015, tenant also said that he began coughing up black phlegm and blood every morning for three to four months. Tenant then saw a doctor, whose tests were inconclusive although he found nothing physically wrong with tenant and reported that the coughing was caused by the apartment environment. Tenant then installed air purifiers and his coughing ceased. Tenant and landlord obtained conflicting architect reports concerning apartment conditions.

The court eventually ordered an inspection. After some pretrial discovery, landlord asked the court to dismiss some of tenant's claims without trial. The court dismissed only tenant's claim for gross negligence. This claim was time-barred because, while he claimed physical symptoms began in late December 2015 when he started coughing and his doctor causally linked his physical symptoms to his environment, tenant sued for this claim more than three years after he first became symptomatic. Tenant's claim for sanctions against landlord for "spoliation" of evidence was denied.

Whealon v. Gramercy Park Residence Corp.: Index No. 651595/2019, 2020 NY Slip Op 34208(U)(Sup. Ct. NY; 12/17/20; Crane, J)