Jagger v Katz Park Ave. Corp., 33 Misc 3d 139 [A], 2011 NY Slip Op 52104 [U] [App
Term, 1st Dept 2011] ["plaintiff's environmental expert merely collected indoor air samples on a
single day, a showing insufficiently reliable to demonstrate the level of toxicity, if any, in
plaintiff's apartment"].)
Defendants also rely on the unsworn opinion of their noticed industrial hygienist, Veronica
Kero, that "before mold air or surface testing is performed in an apartment, a thorough cleaning
and ventilation is needed due to the fact dust and debris contain mold" (see Motion In
Limine to Preclude Evidence dated September 14, 2012, ¶ 2.)
[*12]
It seems clear to this Court that a determination against
the plaintiff in one case, based upon the evidence introduced by the plaintiff in that case, cannot
determine another plaintiff's case; and that an expert's opinion as to the methodology used by
another party's expert cannot simply be accepted by the court over the opinion of that other
expert.
More problematic is Defendants' contention that because Mr. Olmstead's inspection was
conducted "three years after the alleged incident, and one year after plaintiff vacated the
apartment, [it] is not probative of the environmental condition in the apartment at the time of
plaintiff's alleged mold exposure" (see Motion In Limine to Preclude Evidence dated
September 14, 2012, ¶ 2.) Whether characterized in terms of relevance or as "speculation,"
the passage of time between an accident, or in this case exposure to an allegedly harmful agent,
and the date of the inspection or other investigation that is proffered as foundation for an expert's
opinion may, without more, render the opinion inadmissible. (See Groninger v Village of Maroneck, 17 NY3d 125, 129-30