22-3233 Clark v. N.Y.C. Hous. Auth.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of November, two thousand twenty-three.
PRESENT:
JOHN M. WALKER, JR., REENA RAGGI, RICHARD J. SULLIVAN, Circuit Judges. __________________________________________________________
LA’SHAUN CLARK,
Plaintiff-Appellant,
v. No. 22-3233
NEW YORK CITY HOUSING AUTHORITY, NEW YORK INSULATION & ENVIRONMENTAL SERVICES, INC., JLC ENVIRONMENTAL CONSULTANTS, INC.,
Defendants-Appellees. * __________________________________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: LA’SHAUN CLARK, pro se, Douglasville, GA.
For Defendant-Appellee New York MIRIAM SKOLNIK, Herzfeld & City Housing Authority: Rubin, P.C., New York, NY.
For Defendant-Appellee New York DAVID SASSER (Richard Leff, on the Insulation & Environmental brief), BBC Law, LLP, New York, Services, Inc.: NY.
For Defendant-Appellee JLC MICHAEL SCHNEIDER, Kennedys Environmental Consultants, Inc.: CMK LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul A. Engelmayer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 28, 2022 judgment of the
district court is AFFIRMED and the pending motions to expand the record are
DENIED.
La’Shaun Clark, proceeding pro se, appeals a grant of summary judgment in
favor of the New York City Housing Authority (“NYCHA”), New York Insulation
& Environmental Services, Inc. (“NYIES”), and JLC Environmental Consultants,
Inc. (“JLC”) on Clark’s claims of common law negligence and fraudulent
concealment. Clark alleges that she developed lupus and severe respiratory
2 illness after two contractors – NYIES and JLC – performed defective asbestos
abatement in an apartment she later rented from NYCHA. Clark attributes her
illnesses to unabated asbestos that the contractors missed as well as to crystalline
silica, an ingredient in a chemical called Ardex that the contractors used in treating
her apartment. Despite several reminders from the magistrate judge, however,
Clark produced no expert evidence linking her ailments to either the asbestos or
the Ardex. Citing that failure, the district court granted summary judgment in
favor of the defendants and dismissed Clark’s claims with prejudice. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review a district court’s grant of summary judgment de novo, construing
facts in the light most favorable to the non-moving party and resolving all
ambiguities and drawing all reasonable inferences against the moving party. See
Kee v. City of New York, 12 F.4th 150, 157–58 (2d Cir. 2021). Summary judgment is
appropriate only when there is no genuine dispute of material fact that would
allow a reasonable jury to rule in favor of the non-moving party. See Fed. R. Civ.
P. 56(a); Kee, 12 F.4th at 158. A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
3 248 (1986). We construe pro se submissions liberally to raise the strongest
arguments they suggest. See Publicola v. Lomenzo, 54 F.4th 108, 111 (2d Cir. 2022).
With respect to Clark’s common law negligence claims, the district court
found that Clark failed to raise a genuine dispute of material fact as to causation.
We agree. Under New York law, Clark was required to prove both general
causation – that the toxin was “capable of causing” her illnesses – and specific
causation – that she was “exposed to sufficient levels of the toxin to cause” her
illnesses. Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006). And because toxic
chemical exposure is outside the ken of judges and jurors, Clark was required to
prove both causation elements “using expert testimony.” Nemeth v. Brenntag N.
Am., 38 N.Y.3d 336, 343 (2022). Put simply, Clark could not “rely on
circumstantial, lay evidence alone to create a genuine issue of material fact as to
whether toxins emitted from [a particular source] caused” her illnesses. Wills v.
Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004).
As the district court noted, Clark failed to submit any expert reports. In
lieu of such evidence, Clark offered her own opinions about the cause of her
illnesses. She explained, for instance, that silica and asbestos in her apartment
must have caused her ongoing health issues because she was not sick before she
4 moved in. Clark also offered several doctor’s notes attached to her motion for
summary judgment, but those reflected only that she told her doctors that silica
and asbestos caused her illnesses, not the other way around. In addition, Clark
testified at her deposition that two doctors told her it was “possible” that asbestos
or silica had caused her lupus diagnosis. But those unsupported hearsay
statements are not enough to create a genuine dispute over causation. In sum,
Clark’s failure to come forward with expert evidence to prove causation was fatal
to her negligence claim, and, as such, summary judgment on that claim was
correctly granted in favor of the defendants.
The same is true for Clark’s fraudulent concealment claim. Though Clark
alleged that NYCHA should have alerted her that the Ardex treatment had left a
hazardous condition – leftover silica – in her apartment, Clark produced no
evidence to show that this hazardous condition in fact existed. She did not, for
example, offer test results indicating the levels of silica in her apartment, much less
expert evidence that those levels would have been harmful. Without such proof,
Clark could not create a genuine dispute of fact and the district court was correct
to dismiss her claim.
We also reject Clark’s argument that NYCHA admitted her allegations (thus
5 alleviating the need for her to submit expert evidence) because it did not file an
answer to her amended complaint. As the district court explained, Clark initially
filed her amended complaint by attaching it to a letter seeking leave to amend,
prompting NYCHA to file an amended answer. When Clark later filed her
amended complaint as its own docket entry, NYCHA did not refile its amended
answer. Not surprisingly, the district court deemed NYCHA’s previously filed
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22-3233 Clark v. N.Y.C. Hous. Auth.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of November, two thousand twenty-three.
PRESENT:
JOHN M. WALKER, JR., REENA RAGGI, RICHARD J. SULLIVAN, Circuit Judges. __________________________________________________________
LA’SHAUN CLARK,
Plaintiff-Appellant,
v. No. 22-3233
NEW YORK CITY HOUSING AUTHORITY, NEW YORK INSULATION & ENVIRONMENTAL SERVICES, INC., JLC ENVIRONMENTAL CONSULTANTS, INC.,
Defendants-Appellees. * __________________________________________________________
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: LA’SHAUN CLARK, pro se, Douglasville, GA.
For Defendant-Appellee New York MIRIAM SKOLNIK, Herzfeld & City Housing Authority: Rubin, P.C., New York, NY.
For Defendant-Appellee New York DAVID SASSER (Richard Leff, on the Insulation & Environmental brief), BBC Law, LLP, New York, Services, Inc.: NY.
For Defendant-Appellee JLC MICHAEL SCHNEIDER, Kennedys Environmental Consultants, Inc.: CMK LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul A. Engelmayer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the December 28, 2022 judgment of the
district court is AFFIRMED and the pending motions to expand the record are
DENIED.
La’Shaun Clark, proceeding pro se, appeals a grant of summary judgment in
favor of the New York City Housing Authority (“NYCHA”), New York Insulation
& Environmental Services, Inc. (“NYIES”), and JLC Environmental Consultants,
Inc. (“JLC”) on Clark’s claims of common law negligence and fraudulent
concealment. Clark alleges that she developed lupus and severe respiratory
2 illness after two contractors – NYIES and JLC – performed defective asbestos
abatement in an apartment she later rented from NYCHA. Clark attributes her
illnesses to unabated asbestos that the contractors missed as well as to crystalline
silica, an ingredient in a chemical called Ardex that the contractors used in treating
her apartment. Despite several reminders from the magistrate judge, however,
Clark produced no expert evidence linking her ailments to either the asbestos or
the Ardex. Citing that failure, the district court granted summary judgment in
favor of the defendants and dismissed Clark’s claims with prejudice. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review a district court’s grant of summary judgment de novo, construing
facts in the light most favorable to the non-moving party and resolving all
ambiguities and drawing all reasonable inferences against the moving party. See
Kee v. City of New York, 12 F.4th 150, 157–58 (2d Cir. 2021). Summary judgment is
appropriate only when there is no genuine dispute of material fact that would
allow a reasonable jury to rule in favor of the non-moving party. See Fed. R. Civ.
P. 56(a); Kee, 12 F.4th at 158. A fact is material if it “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
3 248 (1986). We construe pro se submissions liberally to raise the strongest
arguments they suggest. See Publicola v. Lomenzo, 54 F.4th 108, 111 (2d Cir. 2022).
With respect to Clark’s common law negligence claims, the district court
found that Clark failed to raise a genuine dispute of material fact as to causation.
We agree. Under New York law, Clark was required to prove both general
causation – that the toxin was “capable of causing” her illnesses – and specific
causation – that she was “exposed to sufficient levels of the toxin to cause” her
illnesses. Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006). And because toxic
chemical exposure is outside the ken of judges and jurors, Clark was required to
prove both causation elements “using expert testimony.” Nemeth v. Brenntag N.
Am., 38 N.Y.3d 336, 343 (2022). Put simply, Clark could not “rely on
circumstantial, lay evidence alone to create a genuine issue of material fact as to
whether toxins emitted from [a particular source] caused” her illnesses. Wills v.
Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004).
As the district court noted, Clark failed to submit any expert reports. In
lieu of such evidence, Clark offered her own opinions about the cause of her
illnesses. She explained, for instance, that silica and asbestos in her apartment
must have caused her ongoing health issues because she was not sick before she
4 moved in. Clark also offered several doctor’s notes attached to her motion for
summary judgment, but those reflected only that she told her doctors that silica
and asbestos caused her illnesses, not the other way around. In addition, Clark
testified at her deposition that two doctors told her it was “possible” that asbestos
or silica had caused her lupus diagnosis. But those unsupported hearsay
statements are not enough to create a genuine dispute over causation. In sum,
Clark’s failure to come forward with expert evidence to prove causation was fatal
to her negligence claim, and, as such, summary judgment on that claim was
correctly granted in favor of the defendants.
The same is true for Clark’s fraudulent concealment claim. Though Clark
alleged that NYCHA should have alerted her that the Ardex treatment had left a
hazardous condition – leftover silica – in her apartment, Clark produced no
evidence to show that this hazardous condition in fact existed. She did not, for
example, offer test results indicating the levels of silica in her apartment, much less
expert evidence that those levels would have been harmful. Without such proof,
Clark could not create a genuine dispute of fact and the district court was correct
to dismiss her claim.
We also reject Clark’s argument that NYCHA admitted her allegations (thus
5 alleviating the need for her to submit expert evidence) because it did not file an
answer to her amended complaint. As the district court explained, Clark initially
filed her amended complaint by attaching it to a letter seeking leave to amend,
prompting NYCHA to file an amended answer. When Clark later filed her
amended complaint as its own docket entry, NYCHA did not refile its amended
answer. Not surprisingly, the district court deemed NYCHA’s previously filed
amended answer to be its responsive pleading. Though Clark says this was
improper, the district court had discretion to accept NYCHA’s amended answer
as it did. See Com/Tech Commc’n Techs., Inc. v. Wireless Data Sys., Inc., 163 F.3d 149,
151 (2d Cir. 1998) (explaining that district courts have “discretion” to deem
“papers already submitted to be the complaint and answer”); see also Fed. R. Civ.
P. 1 (directing district courts to “construe[]” the Federal Rules, including Rule 8’s
pleading parameters, “to secure the just, speedy, and inexpensive determination
of every action and proceeding”). Indeed, if Clark thought otherwise, she should
have moved for default judgment. She did not, and in any event, such a motion
would have been meritless, since NYCHA was obviously defending itself in the
action. See Fed. R. Civ. P. 55 (providing that default can be entered only when the
opposing party “has failed to plead or otherwise defend”).
6 Finally, Clark moves to expand the appellate record with documents
reflecting her recent diagnoses of pneumoconiosis and asbestos pleurisy. 1 But
even if these diagnoses were included in the record, our conclusion would remain
the same, because neither contains expert evidence that could establish the
existence of hazardous conditions in her apartment or causation. We therefore
deny those motions.
We recognize, as the district court did, that Clark’s medical challenges
warrant sympathy. We do not question the sincerity of her allegations.
However, our judgment must turn on whether Clark has provided sufficient
evidence to permit a reasonable jury to find that NYCHA, NYIES, and JLS are
liable for the injuries she describes. She has not done so.
1 We construe Clark’s motion for judicial notice of a Medicare claim report reflecting her diagnosis for pneumoconiosis as a motion to supplement the record because it would not be proper to take judicial notice of a claim report to establish her diagnosis. See Fed. R. Evid. 201(b) (limiting judicial notice to facts that are “not subject to reasonable dispute”). 7 We have considered Clark’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court. All
pending motions are DENIED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court