recurrent and persistent dampness and water incursion growth, colonization and existence of
molds, fungi, bacteria, and mycotoxins are present in plaintiff's apartment and such conditions
are hazardous to human life" (see Plaintiff's Expert Disclosure Pursuant to CPLR 3101
(d) for Edward Olmstead dated November 4, 2011.) Mr. Olmstead "conducted a microbial
inspection" in Plaintiff's apartment on October 20, 2011.
Defendants contend that Edward Olmstead's "testing and sampling of the apartment, done
one time, three years after the alleged incident, and one year after plaintiff vacated the apartment,
is not probative of the environmental condition in plaintiff's apartment at the time of plaintiff's
alleged mold exposure, and . . . that such one time testing is methodologically deficient and
contrary to generally accepted practice in the industrial hygienist community." (See
Motion In Limine to Preclude Evidence dated September 14, 2012, ¶ 2.)
Defendants rely on Fraser v 301-52
Townhouse Corp. (57 AD3d 416 [1st Dept 2008]), in which the First Department held
that the plaintiffs' claim for alleged mold-related illness should be dismissed because "plaintiffs
failed to offer a reliable measurement of the level of mold in the subject apartment" (see id.
at 420.) "A textbook that plaintiffs placed into evidence at the hearing states that an estimate
of average inhalation exposure should be based on sampling at least three times a day for at least
three consecutive, representative days, with duplicate samples for all analyses"; but "[p]laintiffs'
environmental expert . . . collected only two indoor samples within a short time span on the same
day, which, according to plaintiffs' own authority, was insufficient." (See id.; see also