Retained; the law as reflected in Pattern Jury Instruction 2:106, Lessor's Liability Under
Covenant to Repair; Multiple Dwelling Law §78, Repairs; Real Property Law §235-b,
Warranty of Habitability; and Administrative Code of the City of New York, Housing
Maintenance Code, §27-2005, Duties of Owner. (See Affirmation in Support of
Motion for Unified Trial ¶¶ 8-11.) [*4]The Court
notes that the Verified Complaint (see ¶¶ 11, 16) and the Verified Bill of
Particulars (see ¶5) allege "violating laws, rules and regulations," but do not specify
the now-cited provisions of the Multiple Dwelling Law, Real Property Law, or Administrative
Code.
Although the verbal formulations as to the predicate for liability may differ, e.g.,
"dangerous," "unsafe," "defective," or "unfit," each of the proferred bases for liability require
proof of a potentially injury- or damage-producing condition that, by application of a standard of
legal reasonableness or statutory or contractual duty, should not have been present, together with
proof that the condition did, in fact, cause such injury or damage to the plaintiff. Here,
Defendants contend that the alleged mold condition in Plaintiff's apartment cannot cause illness,
and, in any event, did not cause any injury to Plaintiff, either because Plaintiff was not exposed to
sufficient levels of mold to cause his illness, or because his illness was caused by something else.
Defendants contend that "in a toxic tort' case, where plaintiff alleges exposure to an array of
mold species, and purports to link them to both respiratory and non-respiratory injuries, plaintiff
cannot meet his burden for trial unification . . . without testimony from an industrial hygienist
and a medical doctor"; but here "no medical affidavit was submitted; [and] no industrial