A toxic tort claim arising out of allegations that clean-up crews failed to eradicate tear gas from an Albany-area apartment has been dismissed after a judge found no evidence that the plaintiff’s health issues surfaced after remediation.
Supreme Court Justice Joseph Teresi (See Profile) said expert testimony established that the plaintiff was not exposed to sufficient levels of CS tear gas after the clean-up to explain the host of injuries alleged.
Kendall v. Amica Mutual Insurance Co., 2014 NY Slip Op 50943, began on April 5, 2009 when a basement tenant in the plaintiffs’ Colonie home barricaded himself in the apartment, allegedly with a gun. Colonie police fired a CS tear gas canister into the apartment and removed the tenant.
The owners of the house stayed in their home that night, but one of them reacted strongly to the tear gas that had been released into the basement apartment two flights below. They moved out for several months while repairs and renovations were underway.
Since then, one of the plaintiffs claims to have suffered a host of adverse reactions, ranging from irritant induced asthma and bronchitis to rashes and an interrupted menstrual cycle.
A suit was initiated against the insurer and two companies involved in the clean-up. But Teresi said there was no proof that the alleged injuries resulted from exposure to either the CS tear gas or the cleaning chemicals that may have remained in the building after remediation.
The plaintiffs were represented by Shawn May, an associate at Linnan & Fallon in Albany. Representing the various defendants were: Panagiota Hyde, an associate at Carter, Conboy, Blackmore, Maloney & Laird in Albany; Benjamin Neidl, an Albany partner at Wilson, Elser, Moskowitz, Edelman & Dicker; and Andrea Smith of the A. Smith Law Group in Stamford, Conn.