Clark v. N.Y.C. Hous. Auth.

LA'SHAUN CLARK, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY et al., Defendants.

No. 20 Civ. 251 (PAE) (GWG)

United States District Court, S.D. New York

December 28, 2022

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

Pro se plaintiff La'Shaun Clark brings claims against state and private entities for fraudulent concealment and personal injury in connection with her alleged exposure to asbestos and “Ardex,” a non-asbestos product containing crystalline silica quartz. Three defendants- New York City Housing Authority (“NYCHA”), New York Insulation & Environmental Services (“NYIES”), and JLC Environmental Consultants Inc. (“JLC”) (collectively “defendants”)-have moved for summary judgment dismissing all claims.^[1]See Dkts. 269, 275, 289. Clark has filed cross-motions for summary judgment against all defendants. See Dkts. 282-84.

On September 14, 2022, the Hon. Gabriel W. Gorenstein, United States Magistrate Judge, issued a Report and Recommendation recommending that defendants' motions for summary judgment be granted. Dkt. 311 (the “Report”). Clark has filed a series of objections to the Report and to a later order from Judge Gorenstein. On September 14, 2022 Clark objected to the Report generally and asked to file a second amended complaint and for additional time to submit expert testimony, Dkts. 312-13; see also Dkt. 314 (September 15, 2022 letter to Judge Gorenstein attaching same). On September 16, 2022, Judge Gorenstein denied as futile Clark's requests for leave to amend and for additional time to seek expert testimony, see Dkt. 315 (denial). Clark then objected to this denial, see Dkts. 316 (objections), 317 (letter to Judge Engelmayer). On September 27, 2022, NYCHA filed its opposition to Clark's objections, Dkt. 318; the same day, Clark replied, Dkt. 319. On September 28, 2022, NYIES filed its opposition to Clark's objections, Dkts. 320-21, as did JLC, Dkt. 323; the same day, Clark replied to NYIES, Dkt. 322, and JLC, Dkt. 324.

For the following reasons, the Court adopts the Report in its entirety.

DISCUSSION

In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Ruiz v. Citibank, N.A., No. 10 Civ. 5950 (KPF), 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)); see also, e.g., Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).

If a party objecting to a Report and Recommendation simply reiterates its original arguments, a district court will review the Report strictly for clear error. See Dickerson v. Conway, No. 08 Civ. 8024 (PAE), 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013); Kozlowski v. Hulihan, No. 09 Civ. 7583, 10 Civ. 0812 (RJH), 2012 WL 383667, at *3 (S.D.N.Y. Feb. 7, 2012). This is so even in the case of a Pro se plaintiff. Telfair v. Le Pain Quotidien U.S., No. 16 Civ. 5424 (PAE), 2017 WL 1405754, at *1 (S.D.N.Y. Apr. 18, 2017) (citing Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009)). Further, “[c]ourts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation.” Tavares v. City of New York, No. 08 Civ. 3782 (PAE), 2011 WL 5877548, at *2 (S.D.N.Y. Nov. 23, 2011) (citation omitted).

Whether reviewing the Report for clear error or de novo, the Court finds that Judge Gorenstein's thorough and well-reasoned Report correctly recommends that this Court grant defendants' motions to dismiss and deny Clark's motion for summary judgment.

The Court adopts the Report's detailed account of the facts and procedural history, to which no party objects. The following summary captures the limited facts necessary for an assessment of the issues presented.^[2]

Between 2004 and 2012, Clark lived in public housing owned and managed by NYCHA. NYCHA 56.1 ¶¶ 1-2; see Pl. NYCHA Mem. at 4. Four months before the start of Clark's tenancy in apartment 1H of her building, NYCHA hired NYIES to perform an asbestos abatement in apartment 1H. NYCHA 56.1 ¶¶ 3, 22; see Pl. NYCHA Mem. at 4, 12. As part of the asbestos abatement, NYIES used a product called “Ardex,” Dkt. 273-1, which, according to Clark, contains harmful levels of crystalline silica, Dkt. 279-10 at 80, 88, and whose use was never disclosed to her by NYCHA before she signed the lease for apartment 1H, id. At 78-80. Also before Clark's tenancy, NYCHA hired JLC to conduct air-monitoring tests in apartment 1H following NYIES's abatement work. NYCHA 56.1 ¶ 30; see Pl. NYCHA Mem. at 16. Clark, relying solely on her own opinion on this point, claims that the asbestos abatement was flawed and exposed her to asbestos and crystalline silica. Dkt. 279-10 at 11, 87-88, 96-98. Defendants, however, have adduced an expert report opining that Clark was not exposed to asbestos or crystalline silica in apartment 1H, Dkt. 271-6 ¶¶ 14-15, 21, and that her various current medical conditions, including chronic obstructive pulmonary disease, Dkt. 279-10 at 87-88, are not the result of exposure to asbestos or crystalline silica during her tenancy in apartment 1H.

The Report recommends that the Court grant defendants' motion for summary judgment on Clark's claims. The Report liberally construes Clark's amended complaint as bringing two claims: (1) a personal injury claim of common-law negligence brought against all defendants, based on Clark's exposure to the asbestos and crystalline silica in apartment 1H, and (2) a claim of fraudulent concealment brought against NYCHA, for withholding knowledge of the presence of Ardex and crystalline silica. See Dkt. 156. The Report correspondingly recommends denying Clark's motion for summary judgment.

As to personal injury, the Report reasons that Clark has failed to adduce sufficient evidence to establish the element of general causation. Report at 8-10. As the Report explains, to prevail on a claim of injury due to a toxic substance, a plaintiff must first establish general causation (the capacity of the substance to cause the injury at hand) and then establish specific causation (that the substance caused the plaintiff's injuries). Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (N.Y. 2006); see Nemeth v. Brenntag N. Am., 194 N.E.3d 266, 270 (N.Y. 2022); Cornell v. 360 W. 51st St. Realty, LLC, 22 N.Y.3d 762, 784 (N.Y. 2014). However, as the Report notes, Clark, beyond her own non-cognizable personal opinion on this point, does not adduce any evidence as to the general capacity of the crystalline silica quartz that she claims remained in apartment 1H as of the time of her tenancy to cause injuries of the type she experienced, let alone the expert testimony that is the basis on which general causation on such claims is proven. As the Report summarizes: “Clark cannot satisfy [the] burden [of causation] without offering expert testimony on the subject, which Clark has not done,” Report at 7, notwithstanding that she carries “the burden to come forward with sufficient evidence- necessarily including expert testimony-on causation to create a genuine issue of material fact,” id. at 10. The Report notes that “Clark testified that she has not retained an expert” and “offers no expert testimony in connection with her oppositions or cross-motions.” Id. at 10. “This lack of expert testimony,” the Report finds, “is fatal to Clark's personal injury claims.” Id.

As to fraudulent concealment, the Report concludes that “Clark has failed to submit sufficient evidence that NYCHA made a material misrepresentation or omission of fact.” Id. at 13. The Report focuses on the aspect of materiality, which is assessed by “whether ‘a reasonable [person] would attach importance [to the fact misrepresented] [or concealed] in determining his choice of action in the transaction in question.'” Cong. Fin. Corp. v. John Morrell & Co., 790 F.Supp. 459, 470 (S.D.N.Y. 1992) (quoting List v. Fashion Park, Inc., 340 F.2d 457, 462 (2d Cir. 1965)) (second alteration in original). “[A] reasonable person considering whether to lease Apartment 1H would not be influenced by the fact that Ardex was used in Apartment 1H at some point in the past unless (1) the crystalline silica quartz remained present in Apartment 1H at the time the individual leased the apartment; and (2) any crystalline silica quartz present in Apartment 1H was in fact hazardous to health or safety.” Report at 14. Because “there is no competent evidence regarding the levels of crystalline silica quartz in Apartment 1H during Clark's tenancy,” id. at 15, the Report reasons, “Clark has failed to offer evidence sufficient to create a genuine issue of material fact concerning whether NYCHA's failure to disclose the use of Ardex or the presence of crystalline silica quartz was material,” id.

Clark filed a series of objections to the Report, see Dkts. 312-14, 316-17, to which defendants responded see Dkts. 318 (NYCHA opposition); 320 (NYIES opposition); 323 (JLC opposition), and Clark replied, see Dkts. 319 (response to NYCHA); 321 (response to NYIES); 324 (response to JLC). Clark's objections do not take aim at any of the Report's legal analysis and conclusions, even when viewed through the lenient lens generally accorded Pro se parties' objections. See Kelley v. Universal Music Grp., No. 14 Civ. 2968 (PAE), 2017 WL 3995623, at *2 (S.D.N.Y. Sept. 11, 2017). Instead, the objections principally (1) excerpt large portions of the Federal Rules of Civil Procedure (and in particular, appended committee...