State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Defendant Robert Michael represented plaintiff Marjorie Bleeg-Smith and her daughter in a prior action. In 1993 Ms. Bleeg-Smith sued two heating contractors and the manufacturers of the furnace and water heater in her residence, claiming that their improper manufacture and/or installation had resulted in dangerous levels of carbon monoxide gas, with health repercussions for both her and her daughter.

The major defendants in that case were Isaac Heating & Air Conditioning and David Feldman Heating and Cooling. In 1997 these defendants moved for summary judgment, presenting evidence that no unusual carbon monoxide levels in the Bleeg-Smith house had ever been established. In response Mr. Michael submitted an affidavit just over one page long from an engineer, Alan Bullerdiek, which incorporated by reference a report that was only slightly longer.

On December 1, 1997, in an oral decision, Justice Francis Affronti granted the defendants' motions and dismissed the complaint. He held that the Bullerdiek affidavit was entirely conclusory, so that plaintiffs had for all intents submitted nothing of evidentiary value to counter the defendants' submissions.

Mr. Michael moved for reargument and/or renewal. He supplied a much more thorough affidavit from Mr. Bullerdiek with this motion. The new affidavit made specific reference to deposition testimony, industry standards, and specific facts regarding the condition of the Bleeg-Smith house. In addition, it contained explanations for the technicians' failure to detect carbon monoxide in the air at the house.

Justice Affronti denied the plaintiffs' motion. He noted, quite correctly, that the plaintiffs could easily have presented the new affidavit at the time of the original motion. He also held that there had been no showing that his earlier decision had been based on an error of law.

Plaintiffs then appealed. The Appellate Division ruled that the original affidavit was indeed conclusory and that Justice Affronti's denial of the motion to renew and reargue was proper.

In 2000 Ms. Bleeg-Smith commenced the present action, alleging legal malpractice. Mr. Michael has now moved for summary judgment, and Ms. Bleeg-Smith opposed based on numerous affidavits, some of them submitted by way of sur-reply. The court will not consider the sur reply papers, but it places significant weight on the affidavit and attached exhibits of Dr. David Penney, a Ph.D. in physiology who teaches in the Wayne State University School of Medicine in Detroit. Dr. Penney had been involved in the case as early as 1994, and in 1997 had offered to represent Ms. Bleeg-Smith and her daughter as an expert witness. Mr. Michael did not respond to this offer, saying now that he had concluded that Dr. Penney would not be a good witness.

It is important at the outset to stress that neither Justice Affronti nor the Appellate Division discuss the contents of the second Bullerdiek affidavit. The denial of plaintiffs' motion to reargue or renew was based on the lack of a reasonable excuse for its tardy presentation, not its content. Similarly, the questions before the Appellate Division were the propriety of Justice Affronti's grant of the original motion and the correctness of his denial of the motion to reargue or renew. This court is therefore the first to compare the first and second Bullerdiek affidavits.

Mr. Michael downplays the differences between the two affidavits. He argues that the second differs from the first primarily in its actual incorporation of the material in Mr. Bullerdiek's report, where the first simply incorporated the report by reference. He insists that the two affidavits are equally conclusory, and thus that plaintiff was not prejudiced by his failure to bring the second one before Justice Affronti.

The court finds to the contrary: the second affidavit is clearly of greater weight. In the referenced report, for example, Mr. Bullerdiek devotes nine out of thirteen paragraphs to general considerations, and the only specific statement about conditions actually existing in the plaintiffs' house is simply, "Tests...reportedly revealed strong fume spillage at the water heater draft hood." In the second affidavit, on the other hand, one reads:

The venting system constructed by Isaac ... did not develop a positive flow to remove flue gases to the outside atmosphere, i.e., 'spillage' occurred. ...[I]n particular, ... the vent connector for the furnace was improperly sized when both the furnace and the water heater in 1991 were connected to a common vent (chimney). This directly led to spillage occurring. ... In both the 1993 episode and the earlier 1991 episode, at the plaintiffs' home, flue gas spillage occurred....

In the course of several of the depositions, the deponents were quick to admit that the venting systems by the defendants ... showed evidence of significant condensation ... [and] condensation is a consequence of poor venting. More importantly, it is widely known that poor venting leads to the production of, and exposure to carbon monoxide.

In addition to this the plaintiff has shown that other material was available that might very well have rebutted the defendants' case. The extensive affidavit from Dr. Penney, who claims to be the world's leading authority on carbon monoxide poisoning, shows the kind of evidence that was offered to Mr. Michael. In a 1994 report he states that there was a high likelihood that the symptoms of which the plaintiffs complained was the result of carbon monoxide poisoning. In 1997 Dr. Penney wrote to Mr. Michael, offering his services, quoting his fees and suggesting that he be involved in the development of the case. This letter was unanswered. After the dismissal of the case Dr. Penney produced another report, which he states in his affidavit contains nothing which he would not have known in 1997.

That second report addresses the absence of recorded levels of carbon monoxide and the difficulty of establishing degrees of exposure by blood testing. It also summarizes the evidence for improper installation of the furnace and hot water heater, the evidence of flue malfunctions, and the symptoms experienced by Ms. Bleeg-Smith and her daughter. The report also presents further support for plaintiffs' case through evidence of symptom subsidence when plaintiffs spent extended periods of time away from their home, the unusually high concentration of carbon monoxide in the plaintiffs' blood in 1991 compared with earlier tests (when there was a shorter history of exposure) and tests done in 1996 (some years after the vent problems were repaired), and a neurologist's report that their symptoms were "caused by chronic CO exposure."

Mr. Michael defends his decision to dispense with Dr. Penney's services on two main grounds. One is apparently a matter of personality. He believes that Dr. Penney shows a tendency towards self-importance and a desire to put himself forward as an expert witness, characteristics that in his experience sit poorly with jurors. But one takes one's witnesses as one finds them, and in any case Mr. Michael was not auditioning witnesses; he was trying to oppose a summary judgment motion, in which the tone of the witness's statements could be reviewed in print. Moreover, if he felt that Dr. Penney was an inappropriate witness from the standpoint of personality he could and should have developed similar evidence through another expert.

Mr. Michael also states that aspects of Dr. Penney's report might create difficulty with respect to a statute of limitations defense raised by both defendants. This is a misrepresentation of the record. Of the two moving defendants, only Isaac Heating & Air Conditioning raised such a defense. David Feldman Heating and Cooling did not. Furthermore, the defense as outlined in the Isaac answer was that it could not be held liable for activity more than three years prior to the commencement of the action. It was clear from the outset that if there had been any exposure to carbon monoxide it was something that went back significantly longer than three years, and it is impossible to see anything in Dr. Penney's affidavit that would give the statute of limitations defense any greater scope than it already had.

Furthermore, Mr. Michael is likely in error when he states that Dr. Penney's statements would have endangered the availability of the "toxic tort" discovery rule, CPLR 214-c. The question here is at what time the plaintiffs, through the exercise of reasonable diligence, should have discovered the injury. The plaintiffs certainly suspected that carbon monoxide was present in the atmosphere of their house, and in 1991 they asked RG&E to perform a test for CO. They were told that the results were negative. This result may well have been an error, but the court cannot see how the plaintiffs should be penalized under the discovery rule because they relied on its accuracy. At this stage in the proceedings, at the very least, the court holds that the RG&E test demonstrates that as late as 1991 the plaintiffs were not able to discover the injury through the exercise of reasonable diligence.

The court is fully aware of the holding that the statute begins to run from the date of diagnosis, not from the date when the cause is found (see, e.g., Hedlund v County of Tompkins, 235 AD2d 980). In the case of a complex syndrome such as carbon monoxide poisoning, however, the presence of symptoms should not be equated with the making of a diagnosis. As Dr. Penney's and other affidavits show, the individual symptoms of carbon monoxide poisoning can all be caused by other conditions and diseases. Some information about the character of the environment is often a necessary part of the diagnosis itself; otherwise the diagnostician is left with a confusing array of apparently unrelated health problems.

In short, there were no compelling reasons to forego the highly probative material offered by Dr. Penney, and it is hard to understand why Mr. Michael presented no medical or epidemiological evidence in his response to the summary judgment motion.

Legal malpractice lawsuits are always difficult cases. Lawyers often err, like all other people, and it is fatally easy to second-guess someone who had acted with none of the advantages of hindsight. Nonetheless, given the substantial differences between the two Bullerdiek affidavits and the puzzling omission of any submissions comparable in content to Dr. Penney's, the court is compelled to conclude that there are triable questions of fact as to the possible success of the original case and as to the propriety of Mr. Michael's decisions. Mr. Michael's summary judgment motion is therefore denied, with costs. Mr. Schoenborn may prepare the order.

DATED: Rochester, New York

October 24, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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