Opinion
November 7, 1996.
Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 13, 1995, which, in an action to recover for personal injuries sustained by the infant plaintiff as a result of exposure to lead paint in an apartment owned by defendant, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 16, 1995, unanimously dismissed, without costs, as superseded by the appeal from the order of July 13, 1995.
Before: Wallach, J.P., Rubin, Nardelli, Williams and Andrias, JJ.
On the issue of whether plaintiff sustained! an injury, defendant failed to tender evidence sufficient to establish that a blood level of 22 mcg/dl does not constitute lead poisoning. On the issue of whether defendant had notice of a hazardous lead condition in plaintiffs apartment, defendant failed to tender evidence sufficient to establish that it did not have notice that a child under seven was residing in the apartment, an issue that if resolved against defendant will result in its being charged with knowledge of the danger, if any, in the apartment ( Juarez v Wavecrest Mgt. Team, 88 NY2d 628). Due to this failure of proof in support of the motion, the evidentiary quality of plaintiffs opposing papers need not be evaluated
( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
[ See, 165 Mise 2d 348.]