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Condominium Owner’s Suit Alleging Mold Contamination of Units Dismissed From Ganfer & Shore, LLP (New York, NY)

A condominium owners complaint for breach of contract and negligence in the construction, marketing, and sale of its units, arising from complaints of mold in the unit, was dismissed in Kerusa Co. LLC v. W10Z/515 Real Estate Limited Partnership, 2008 WL 1821497, 2008 N.Y. Slip Op. 3687 (App. Div. 1st Dept Apr. 24, 2008).

In this case, the purchaser of a luxury condominium unit alleged that the unit was contaminated by mold.The purchasers complaint asserted that both its own unit and the common elements of the Condominium were contaminated, but at the outset, the court observed that Plaintiff has standing to seek relief for damage to its own units only and not for injury to the common elements of the subject building.The court also noted that the purchaser had established the presence of excessive mold on only a single date in 2002, while all environmental inspections and tests conducted since that date found had acceptable levels of mold, and that no expert evidence had been submitted establishing that the mold levels present on any dated created any health hazard.

The court observed that in any event, the purchase agreement for plaintiffs unit limited the remedy for any defective construction to the repair or replace[ment of] any defective item of construction.This provision, the court reasoned, necessarily excludes from recoverable damages any diminution in the value of the unit that may result from defective construction.Plaintiff had not alleged that it had incurred any expense to repair or replace any construction defects, and because it had subsequently sold its unit, it would not incur any such expense in the future.

Plaintiffs claims against the general contractor, architect, mechanical engineer, and structural engineer of the premises were also dismissed.Because plaintiff had not direct contractual or other relationship with these parties, it was not entitled to recover for negligence or breach of contract against them.

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