                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 21, 2016                    519698
________________________________

RICHARD K. KENDALL et al.,
                    Appellants,
      v

AMICA MUTUAL INSURANCE COMPANY,
                    Respondent.

(Action No. 1.)
________________________________
                                             MEMORANDUM AND ORDER
HOLLY KENDALL et al.,
                    Appellants,
      v

USA DECON et al.,
                     Respondents.

(Action No. 2.)
________________________________


Calendar Date:   November 23, 2015

Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.

                              __________


      Linnan & Fallon, LLP, Albany (Michael J. Hutter of Powers &
Santola, LLP, of counsel), for appellants.

      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (Jessica A. Desany of counsel), for Amica Insurance
Company, respondent.

      A. Smith Law Group, LLP, New York City (Andrea J. Smith of
counsel), for USA Decon and another, respondents.
                               -2-                519698

      Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Albany
(Benjamin F. Neidl of counsel), for Duct and Vent Cleaning of
America, Inc., respondent.

                           __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Teresi, J.),
entered June 19, 2014 in Albany County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint(s).

      Plaintiffs own a three-level home in the Town of Colonie,
Albany County; plaintiffs previously utilized the main and second
floors of the structure as their residence and rented out the
basement level to a young man and his fiancée. On the morning of
April 5, 2009, the Colonie Police Department was told that the
male tenant had barricaded himself in the basement apartment and
allegedly was threatening suicide, and a patrol officer was
dispatched to undertake a welfare check. Later that afternoon,
and following unsuccessful attempts to voluntarily extricate the
tenant from the apartment, a SWAT team fired CS tear gas
canisters into plaintiffs' home. The tenant then was removed
from the scene and transported to a local hospital.

      Plaintiffs, who initially were not at home and thereafter
watched the events unfold from a neighbor's property, returned to
their home at approximately 9:00 p.m. When plaintiff Holly
Kendall (hereinafter Kendall) went down to the basement to reset
the cable box,1 she began coughing and her eyes and skin started
to burn. Although Kendall sought treatment at a local hospital,
she left without being seen by a physician or otherwise receiving
treatment. Kendall and her husband, plaintiff Richard K.
Kendall, returned to their home later that evening and remained
there until the following day. After staying with relatives for


     1
        Electrical service to the residence had been turned off
earlier in the day at the request of law enforcement.
                              -3-                519698

two days, plaintiffs moved into a local hotel, where they
remained for the next 6½ months while their home was being
remediated, repaired and cleaned.

      As a result of the April 2009 incident, plaintiffs filed a
claim with their homeowner's insurance carrier, defendant Amica
Mutual Insurance Company; Amica, in turn, retained AEGIS
Engineering Services to investigate plaintiffs' claim. Although
AEGIS solicited bids from a number of remediation contractors,
plaintiffs – independent of such efforts – identified and
selected defendant USA Decon to perform the tear gas remediation.
During the course of such work, which began on or about June 1,
2009 and lasted for approximately nine days, USA Decon employed
various methods to clean plaintiffs' property, including
utilizing a neutralizing agent known as "Get the Odor Out." As
USA Decon was not licensed to perform heating, ventilation and
cooling work, it subcontracted such work to defendant Duct and
Vent Cleaning of America, Inc. During the course of its work on
plaintiffs' property, Duct and Vent utilized a deodorizing agent
known as "EnviroCon." The remediation work was completed in June
2009 and, when Kendall did a walk-through of the premises, she
did not experience any symptoms. Post-remediation air quality
testing conducted by the Occupational & Environmental Health
Center of Eastern New York in June 2009 revealed "that the
cleanup was thorough and the air in the residence [was] no longer
contaminated by the effects of the CS tear gas and powder. No
further sampling for CS tear gas [was] recommended."

      Plaintiffs returned to their home in October 2009.
Although Kendall purportedly began experiencing adverse health
effects one month later, plaintiffs continued to live in their
home until March 5, 2010, when Kendall allegedly was told by a
physician at a local emergency room that she could not return to
her residence. Plaintiffs again moved into a local hotel, and
neither Kendall nor her spouse thereafter returned to the
residence. Subsequent testing of plaintiffs' home for tear gas
residue – conducted by Needham Risk Management in March 2010 –
revealed that "[t]he analyte was detected but at a level too low
to be accurately quantified by the method used." Plaintiffs,
believing such testing to be invalid, hired Certified
Decontamination in November 2010 to conduct further testing of
                               -4-                519698

the residence for the presence of tear gas residue and any
chemicals used during the decontamination process. Although the
general manager of that company, Michael Rowzee, concluded that
"the dwelling was not properly decontaminated [and] residue of at
least one hazardous compound" remained, actual testing of the
residence found no evidence of tear gas; similarly, no evidence
of volatile organic compounds above an acceptable level were
detected. Rowzee did report, however, that "[c]ompounds
consistent with the decontamination of a dwelling using chlorine
dioxide/chlorite were found," and that the symptoms reported by
plaintiffs were "consistent with an overexposure to chlorine
dioxide, sodium chlorite and sodium chlorate."

      Plaintiffs commenced action No. 1 against Amica in June
2011 and served an amended complaint in November 2012 alleging,
among other things, breach of contract. In the interim,
plaintiffs commenced action No. 2 in April 2012 against Amica,
Duct and Vent, USA Decon and its president, defendant Robert
Demaret, alleging, among other things, negligence and toxic tort
and seeking to recover for the injuries allegedly sustained.2
Supreme Court granted Amica's subsequent motion to dismiss the
complaint in action No. 1 as to the breach of contract cause of
action, finding such claim to be time-barred, and joined the
surviving causes of action with those asserted in action No. 2.
Following discovery, defendants each moved for summary judgment
dismissing the complaint(s) and any asserted cross claims against
them. After reviewing the voluminous record before it, Supreme
Court granted defendants' respective motions for summary judgment
and dismissed the complaint(s) against them in their entirety.
This appeal by plaintiffs ensued.3


     2
        Although action No. 2 also was commenced against Colonial
Cleaners, such action subsequently was discontinued by
stipulation upon the merits and with prejudice. Additionally,
Kendall's spouse apparently discontinued his personal injury
claims, leaving him with only a derivative claim based upon
Kendall's asserted injuries.
     3
        Although the parties raise various procedural issues with
regard to the viability of certain of the claims and cross claims
                              -5-                519698

      We affirm. "It is well-established that an opinion on
causation should set forth a plaintiff's exposure to a toxin,
that the toxin is capable of causing the particular illness
(general causation) and that [the] plaintiff was exposed to
sufficient levels of the toxin to cause the illness [alleged]
(specific causation)" (Parker v Mobil Oil Corp., 7 NY3d 434, 448
[2006]; see Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762,
784 [2014]; Lindkvist v Travelers Ins., 111 AD3d 452, 452 [2013];
Nonnon v City of New York, 88 AD3d 384, 394 [2011]; Jackson v
Nutmeg Tech., Inc., 43 AD3d 599, 601 [2007]). Although neither a
"precise quantification" nor "an exact numerical value" is
required in order to demonstrate specific causation, it remains
"a plaintiff's burden to establish [that there was] sufficient
exposure to a substance to cause the claimed adverse health
effect" (Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d at 784
[internal quotation marks and citation omitted]; see Ivory v
International Bus. Machines Corp., 116 AD3d 121, 126 [2014], lv
denied 23 NY3d 903 [2014]; Jackson v Nutmeg Tech., Inc., 43 AD3d
at 602). As to the quality of proof required, "[t]he
professional reliability exception to the hearsay rule . . .
enables an expert witness to provide opinion evidence based on
otherwise inadmissible hearsay, provided it is demonstrated to be
the type of material commonly relied on in the profession"
(Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013] [internal
quotation marks and citation omitted]; see Matter of Dakota F.


asserted in action Nos. 1 and 2, as we are persuaded – for the
reasons that follow – that Supreme Court's order should be
affirmed in its entirety, we will address the substance of the
claims asserted without parsing out the specific procedural
arguments relative thereto. Additionally, as is apparent from a
review of plaintiffs' brief and their verified bills of
particulars, Kendall is alleging damages based upon exposure "to
the remaining CS tear gas in [plaintiffs'] home and the toxic
chemicals [allegedly used in the remediation and cleaning
process] when they returned to live in their house in October
2009 through March 5, 2010." Hence, our analysis of the proof
tendered in support of – and in opposition to – defendants'
respective motions will be limited to this post-remediation
period.
                              -6-                519698

[Angela F.], 110 AD3d 1151, 1153 [2013], lv denied 22 NY3d 1015
[2013]; O'Brien v Mbugua, 49 AD3d 937, 938 [2008]). That said,
"even if the reliability of the evidence is shown, it may not be
the sole basis for the expert's opinion on an ultimate issue in
the case, but rather it may only form a link in the chain of data
which led the expert to his or her opinion" (O'Brien v Mbugua, 49
AD3d at 938 [internal quotation marks, brackets and citation
omitted]; see Anderson v Dainack, 39 AD3d 1065, 1067 [2007]).

      Here, in support of their respective motions for summary
judgment, defendants submitted, among other things, the material
safety data sheet for "Get the Odor Out," various laboratory
analyses and test results, the examination before trial testimony
of Kendall, her spouse, Demaret (USA Decon), John Van Raalte
(Occupational & Environmental Health Center of Eastern New York),
Timothy Gerardi (Amica) and Michael Vinick (Duct and Vent), as
well as the expert affidavit and report of Jonathan Borak – a
board-certified physician in internal medicine, occupational
medicine and toxicology. Demaret and Vinick each described the
extent of the work performed at plaintiffs' residence, including
the substances utilized during the course of the remediation and
cleaning processes. Notably, Demaret testified that he had
utilized "Get the Odor Out" – an "effective, nontoxic product" –
on approximately 500 properties and had never received a single
complaint. According to Demaret, he and his crew wore personal
protective equipment for the first three days of the remediation
project but thereafter wore "shorts and T-shirts" without
experiencing any adverse health effects. Finally, Demaret
testified that when he and Kendall did the final walk-through,
neither he nor Kendall displayed any symptoms of tear gas
exposure. Vinick offered similar testimony as to the scope of
the work performed at plaintiffs' residence, which was limited to
cleaning the duct work, and stated that he had never received any
complaints – from either his customers or his workers – of any
ill effects stemming from the use of "EnviroCon" during cleaning
operations. Vinick also testified that his employees did not
complain of any symptoms of tear gas exposure as a result of
performing work at plaintiffs' residence. As noted previously,
post-remediation air quality testing – the parameters of which
were described by Van Raalte at his deposition – revealed "that
the cleanup was thorough and the air in the residence [was] no
                              -7-                519698

longer contaminated by the effects of the CS tear gas and
powder."

      In addition to the foregoing, Borak provided a detailed
affidavit and expert report relative to the issues of general and
specific causation. Preliminarily, to the extent that plaintiffs
take issue with the admissibility of certain of the test results
and/or reports reviewed by Borak, we are satisfied that such
documents are "the type of material[s] commonly relied on in the
profession" (Matter of Greene v Robarge, 104 AD3d at 1074
[internal quotation marks and citation omitted]) and, further,
that such materials were merely "a link in the chain of data"
upon which Borak ultimately relied in forming his expert opinion
(Anderson v Dainack, 39 AD3d at 1067 [internal quotation marks
and citations omitted]). Accordingly, we discern no basis upon
which to set aside Borak's expert opinion or report (compare
Borden v Brady, 92 AD2d 983, 984 [1983]).

      As to the substance of Borak's report, Borak readily
acknowledged that Kendall was exposed to tear gas residue on
April 5, 2009 (and most likely the following day as well) – as
the result of which she "developed acute symptoms that were
consistent with the expected acute effects of tear gas exposure."
Borak further acknowledged that certain of the pulmonary symptoms
of which Kendall now complains may have resulted from her acute
exposure to tear gas on those dates. Borak noted, however, that
there was no evidence that Kendall was exposed to tear gas
residue following the remediation of plaintiffs' residence.
Absent evidence of such exposure, plaintiffs simply cannot
establish that Kendall "was exposed to sufficient levels of the
toxin to cause the [pulmonary] illness [alleged] (specific
causation)" (Parker v Mobil Oil Corp., 7 NY3d at 448). As to the
balance of Kendall's physical complaints, Borak opined that it
was "probable" that Kendall's "skin complaints since April 2009
represented relapses and flares of her lifelong eczema," noting
that it would be "very unlikely" for CS tear gas to produce such
symptoms six months after the initial exposure. Finally, Borak
found "no evidence" to support a connection between Kendall's
urinary and gynecological symptoms and exposure to CS tear gas.

     With respect to the cleaning agents used, Borak noted that
                              -8-                519698

there was "no evidence of residual chlorine dioxide, sodium
chlorite or sodium chlorate in [plaintiffs'] home," and no
"evidence that . . . Kendall suffered 'overexposure' to any of
those agents." Additionally, Borak found "no evidence in the
scientific literature that inhalation exposures to [the cited
compounds were] associated with human pulmonary toxicity
generally or [reactive airways dysfunction syndrome (the specific
ailment alleged by Kendall)] in particular." Further review of
the medical literature also disclosed "no evidence" and/or "no
data" to support a causal connection between exposure to chlorine
dioxide, chlorite salts or chlorate salts and Kendall's skin
diseases, bladder infections or menstrual irregularities. Hence,
Borak opined, there was no evidence to suggest that Kendall
developed her various ailments as a result of any exposure to
these particular compounds.

      The foregoing proof is more than sufficient to demonstrate
a lack of specific causation relative to Kendall's alleged post-
remediation exposure to tear gas and, further, a lack of both
general and specific causation as to Kendall's alleged exposure
to the offending cleaning agents. Hence, defendants demonstrated
their prima facie entitlement to judgment as a matter of law,
thereby shifting the burden to plaintiffs to tender sufficient
proof to raise a question of fact in this regard.

      Simply put, neither the assessment submitted by Rowzee
(Certified Decontamination) nor the affidavits tendered by
plaintiffs' experts – John Quinn, Michael Klein and William Meggs
– were sufficient as to, among other things, raise a question of
fact relative to specific causation. The report authored by
Rowzee reflects that no evidence of CS tear gas was found in
plaintiffs' residence during his November 2010 inspection
thereof. Although Rowzee indicated that "[c]ompounds consistent
with the decontamination of a dwelling using chlorine
dioxide/chlorite were found" in plaintiffs' residence, no attempt
was made to quantify the levels thereof, much less demonstrate
that such compounds existed in concentrations above acceptable
levels. Klein, a professional engineer and certified hazardous
materials manager, was critical of the remediation and cleaning
processes, took issue with the cleaning agents employed and
ultimately opined that the work was performed in a negligent
                              -9-                519698

manner, but his report failed to document the presence of any
contaminants in plaintiffs' home, nor did he make any causal
connection between either the CS tear gas or the cleaning agents
and Kendall's resulting injuries. Quinn, a chemist, was
similarly critical of the cleaning agent employed during the tear
gas remediation phase of the work but, again, offered no causal
connection between the contaminants allegedly remaining in
plaintiffs' residence and Kendall's asserted ailments. Finally,
Meggs, a board-certified physician in, among other things,
medical toxicology, opined that Kendall's "signs and symptoms
[were] consistent with a reexposure to CS tear gas, albeit at
lower doses than the doses classically associated with toxicity."
Meggs affidavit, however, ignores the fact that the record before
us is devoid of any scientific testing documenting the post-
remediation presence of CS tear gas in plaintiffs' home. The
record is similarly devoid of any measurable level of residual
and allegedly hazardous cleaning agents in plaintiffs' home.
Absent such proof – and without expert testimony establishing,
among other things, specific causation between the alleged
contaminants and Kendall's injuries – plaintiffs failed to raise
questions of fact sufficient to defeat defendants' respective
motions (see Cleghorne v City of New York, 99 AD3d 443, 447-448
[2012]; Coratti v Wella Corp., 56 AD3d 343, 343-344 [2008];
Nawrocki v Coastal Corp., 45 AD3d 1341, 1342 [2007], lv denied 10
NY3d 710 [2008]). As Supreme Court succinctly stated,
"allegations of inadequacies in the decontamination process do[]
not equate to the existence of CS tear gas or other chemicals in
[p]laintiffs' home." Plaintiffs' remaining arguments, to the
extent not specifically addressed, have been examined and found
to be lacking in merit, and Amica's arguments relative to the
cross claims asserted against it are, in light of our
conclusions, academic.

     Peters, P.J., McCarthy, Devine and Clark, JJ., concur.
                        -10-                 519698

ORDERED that the order is affirmed, with one bill of costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
