Derosa v. Lenox Farms Ltd. P'ship

241 N.E.3d 79

104 Mass.App.Ct. 510

Theresa DEROSA

v.LENOX FARMS LIMITED PARTNERSHIP.

No. 23-P-136

Appeals Court of Massachusetts, Norfolk.

Argued October 4, 2023

Decided August 2, 2024

Negligence. Landlord and Tenant, Habitability, Quiet enjoyment, Consumer protection. Contract, Performance and breach. Consumer Protection Act, Landlord and tenant. Evidence, Expert opinion. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on August 27, 2020.

The case was heard by Joseph F. Leighton, Jr., J., on a motion for summary judgment, and a motion for reconsideration was considered by him.

Melissa J. Bruno for the plaintiff.

Gayatri R. Deodhar, Lynnfield, for the defendant.

Present: Rubin, Singh, & Hershfang, JJ.

RUBIN, J.

₅₁₀This appeal arises from an award of summary judgment to the defendant. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). As relevant here, the plaintiff brought claims for negligence, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, breach of contract, and violation of G. L. c. 93A, against her former landlord, premised on her contention that the townhouse she rented from the landlord contained harmful, airborne mold that negatively affected her health. Because the record evidence was sufficient with respect to these claims to raise genuine issues of material fact, we reverse.

₅₁₁Facts. Our review of an allowance of summary judgment is de novo. Blake v. Hometown Am. Communities, Inc., 486 Mass. 268, 272, 158 N.E.3d 18 (2020). We must view the record evidence, and all reasonable inferences that can be drawn therefrom, in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate only where, viewing the record in that light, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

Viewing the record evidence, and all reasonable inferences that can be drawn therefrom in the light most favorable to the nonmoving party, here the plaintiff, see Blake, 486 Mass. at 272, 158 N.E.3d 18, the facts we must assume are true for present purposes include the following.¹

Prior to entering a lease for a townhouse with the defendant, Lenox Farms Limited Partnership (Lenox), the plaintiff, Theresa DeRosa, a diagnosed asthmatic, informed Lenox that she "had allergies to dust, dust mites, [and] mold." She expressed particular concern with whether the carpet in the apartment was hypoallergenic. She was assured that it was before entering into the lease on November 29, 2018. The lease began the next day, November 30, and expired March 29, 2020.

A few days after moving into the townhouse, she began having difficulty breathing. She also experienced dripping from her eyes and sinus pressure, and had puffy and watery eyes. By December 2018, she began seeking medical treatment for ongo- ing symptoms that included recurrent sinusitis, rhinitis, and postnasal drip.

In January 2019, the plaintiff presented to urgent care for sinus congestion and earache. On two additional occasions that same month, she again went to urgent care due to ongoing sinus issues, earache, and related ailments. On January 28, 2019, she presented to the Massachusetts Eye and Ear Otolaryngology office for further medical evaluation.

On February 5, 2019, she sent an e-mail message to Lenox regarding its assurances that she would be provided with paperwork confirming that the carpet was hypoallergenic, which she had to provide to her otolaryngologist in connection with allergy testing. She stated that since moving into the townhouse two months prior, she had been sick and having sinus infections with watery eyes.

₅₁₂On February 8, 2019, she learned from Lenox’s community director that the carpet was not, in fact, marketed as hypoallergenic, although the community director opined that it was "indeed hypoallergenic." On February 26, 2019, her treating otolaryngologist submitted a form to Lenox requesting as a reasonable accommodation the removal of the carpeting from the townhouse. On February 27, 2019, DeRosa informed Lenox that she had been out of town and traveling abroad, and that during this time, her sinus issues had cleared up and her eye swelling had gone down.

These symptoms returned, however, immediately upon her return to the townhouse in March 2019. Her otolaryngologist recommended that she see an allergist, and on March 21, 2019, she presented to Dr. Michael Young of South Shore Allergy and Asthma Specialists, P.C. Among other things, Dr. Young’s records state that DeRosa’s skin tests were positive for asper- gillus mold. Dr. Young completed a second reasonable accommodation request form stating that DeRosa had asthma that was triggered by her allergy to mold and that it is a potentially life-threatening condition. He stated that removal of the wall-to-wall carpeting would "remove a major source of mold in her living environment." He indicated that he would be willing to testify in court concerning the information provided on the form.

On April 1, 2019, DeRosa presented to Dr. Young’s office on an emergency basis. She stated that despite using prescribed medications and inhalers, she was still experiencing postnasal drip and cough. She reported that in the past four weeks, her asthma had kept her from getting much of her work done "[m]ost of the time." Dr. Young’s assessment of DeRosa was asthma with acute exacerbation and allergic rhinitis due to allergen.

Later that month, Lenox removed the carpeting from the townhouse and replaced it with hardwood flooring. Nonetheless, DeRosa continued to experience physical symptoms without relief in the townhouse. In June 2019, DeRosa presented Lenox with a letter from Dr. Young stating that mold allergy, as documented by testing, was "a component of [DeRosa’s] problems" and stating "it [was] medically necessary that she avoid any mold in her living environment." Around the same time, DeRosa informed Lenox that with the carpet now removed, she could see that when it rained heavily, water would run under the French door into the master bedroom. In response, Lenox installed a "sweep" on the bottom of the door. At that time, following the water incursion, Lenox did not check for moisture under the ₅₁₃flooring or otherwise test for mold. A moisture test was not performed until November 2019.

Despite changes in, and increases to, DeRosa’s prescribed medications, her symptoms remained and her overall condition worsened. Eventually, having exhausted all possible medical solutions, Dr. Young recommended that she move from the townhouse. He suggested that she might have airborne mold in her townhouse and recommended that she have it tested.

On October 28, 2019, DeRosa submitted to Lenox another medical letter from Dr. Young, stating that he had exhausted every possible medication and treatment for the mold allergies she was experiencing and that the townhouse was not a healthy environment for her to live in. Dr. Young further stated that despite the implementation of extensive environmental controls, DeRosa’s severe symptoms had not improved. He asserted that it was medically necessary, given DeRosa’s high level of medication use, and her failure to respond, for her to change her living environment. After submitting Dr. Young’s letter, DeRosa expressed her concern to Lenox that water had been pouring into the bedroom for an undetermined period of time, hidden by the previous carpet, and that mold had grown under the bedroom floor or in other areas of the townhouse.

On November 21, 2019, Dave Jenson of Mold Spotters, a mold inspection and testing company retained by DeRosa, tested the townhouse for any mold or other contaminants. The mold analysis conducted on the samples from the townhouse by an independent laboratory established that there were elevated mold conditions in the townhouse and that it was in need of mold remediation.

On November 25, 2019, DeRosa contacted Lenox, stating that on doctor’s orders, she had vacated the townhouse on November 23, 2019, approximately four months before the lease expired. Lenox responded the same day, stating that DeRosa had not provided sufficient notice to break her lease and that she would incur additional charges due to that fact. DeRosa immediately rebutted Lenox’s insufficient notice charge by pointing out that in October 2019, she had provided Lenox with Dr. Young’s letter stating that vacation of the townhouse was medically necessary.

In December 2019, Dr. Young provided a letter to Lenox stating that since DeRosa’s move, she had experienced a resolution of all her asthma and allergy symptoms and that she had since tapered off all of her asthma and allergy medications. He ₅₁₄verified that he had reviewed the mold...