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Carter Conboy Obtains Dismissal of Breach of Contract and Toxic Tort Claim


Carter Conboy obtained a favorable decision from the Appellate Division, Third Department earlier this year when it affirmed the lower Court’s Decision and Order which dismissed the plaintiffs’ Complaint. Our client, the defendant insurance company, was sued by the plaintiffs who sought further insurance coverage benefits from the defendant based on alleged breach of contract, intertwined with the plaintiffs’ claimed toxic tort claim seeking damages for injuries allegedly resulting from third-parties’ negligence.

In this action, the plaintiffs’ home was teargassed a number of years ago by a local police department in its effort to extricate a tenant from the plaintiffs’ home based on a third-party’s concern that the tenant may harm himself.  After the tear gas incident, the heat in the building was turned on, which allegedly transferred the tear gas residue throughout the house.  The plaintiffs made a claim under their homeowners’ insurance policy for the damage to the home caused by the teargas residue, and our client, the homeowners’ insurance company, honored the claim and paid for tear gas remediation and the internal reconstruction of the home which was performed by contractors hired by the plaintiffs.

After the remediation and reconstruction were complete, and the insurance claim was paid, one of the plaintiffs alleged that she sustained personal injuries including respiratory and skin irritant issues (among others) after moving back into the home, and claimed that she could no longer live in the home due to the presence of toxic irritants.  While the litigation commenced also sought damages from the tear gas remediation company and a subcontracted duct and vent cleaning company, the plaintiffs specifically sought what would otherwise be a “redo” from the insurance company, seeking a complete second renovation of the property to remove the alleged toxins.

Based on the plaintiff’s claims that her physical damages were related to either the continued existence of tear gas that had not been properly remediated, or the toxins that were used to remediate the tear gas, this litigation was in one sense, a toxic tort case.  In New York State, a plaintiff must show that there was a toxin present, that this toxin is capable of causing the illness claimed (general causation), and that this plaintiff was exposed to sufficient levels of the toxin to cause the damages alleged (specific causation).

In support of our client’s position, Carter Conboy presented a medical expert who provided a detailed affidavit and expert report addressing the general and specific causation issues and opined that the plaintiffs’ evidence could not satisfy either of these necessary criteria to support the plaintiff’s post-tear gas incident claims. The plaintiffs offered an expert who was critical of both the remediation process and the chemicals used during the tear gas remediation, but the plaintiffs’ expert did not quantify the amount or dose of toxins to which the plaintiffs were exposed, did not present results of any scientific testing to document the presence of tear gas or hazardous cleaning agents in the home after remediation, and failed to sufficiently address the general or specific causation issues.  Therefore, both the lower Court and the Appellate Division found that the plaintiffs did not present sufficient proof that the plaintiffs’ exposure to the alleged toxins was sufficient to cause the actual damages being claimed, and therefore found that the plaintiffs did not raise an issue of fact, and affirmed the dismissal of the plaintiffs’ claims against our client.

Carter Conboy is a Martindale-Hubbell AV® Preeminent™ peer rated full-service law firm committed to providing the highest quality legal representation to its clients.  Founded in 1920, Carter Conboy has offices in Albany and Saratoga Springs, New York, serving clients throughout New York, Massachusetts, and New Jersey. For additional information about the firm, visit or contact the firm’s Director of Marketing, Stacy A. Smith, at 518-810-0516 or