Opinion
51283/02.
Decided January 22, 2008.
The plaintiff was represented by: Law Offices of Michael S. Frankel, New York, NY.
The defendant was represented by: Russo, Keane Toner, LLP, New York, NY.
Plaintiffs commenced the instant lawsuit to recover damages for personal injuries allegedly sustained by the infant plaintiff Russell Jr., who claims to have been lead poisoned in the premises located at 1342 Gates Avenue in Brooklyn (the premises), which were owned by defendant Mildred Weiss (Weiss) during the relevant time period. In addition, O'Connor asserts a claim for loss of services.
As alleged, Russell Jr. was born on May 15, 1997 to Yvette O'Connor (Ms. O'Connor). In or about September of 1999, Weiss rented Apartment 2 of the subject premises (the apartment) to the O'Connor family. Russell Jr. came to live with the family in November of that year. In October of 2001, the premises were transferred to defendants Kenneth and Patricia Kendly (the Kendlys). It is undisputed that the premises were constructed before 1960.
According to Ms. O'Connor, the building contained three apartments. Furthermore, plaintiffs contend that Weiss was aware of children under age of seven years, on the premises. According to Ms. O'Connor, at the time of her application, she and her 1½ year old son Brandon met with Weiss at the premises, that she specifically advised Weiss, in direct response to her question, that her son Russell Jr., age 21/2, would also be coming to live in the apartment.
Plaintiffs aver that when the family moved into the apartment, it appeared to have been freshly painted, but that within a short time, the paint began to peel, crack and chip in the kitchen, the parents' bedroom, and in Russell Jr.'s bedroom, where paint chips were falling on the floor and around the bed, contributing to a dusty condition in that room. As a result, it is contended that prior to the time he was diagnosed with lead poisoning, Russell Jr. often had dust on his hands and on his toys, and that, as witnessed, he was seen peeling paint chips from the wall and putting them in his mouth.
Ms. O'Connor alleges that although Weiss was notified about the problem, no repairs were ever made.
On March 16, 2000, Russell Jr. was diagnosed with an elevated blood lead (PbB) level of 10 micrograms of lead per deciliter of whole blood. On April 11, 2000, he was found to have a like reading, and on September 22, 2000, while he continued to reside at the premises, he was found to have an elevated level of 23 micrograms of lead per deciliter of whole blood. His PbB level remained elevated until the following year.
As a consequence of Russell Jr.'s elevated PbB levels, the New York City Department of Health (DOH), on September 28, 2000, conducted an inspection of the apartment, confirming that paint containing concentrations of lead in excess of permitted regulatory levels was present in four areas, three of which were situated in Russell Jr.'s bedroom. Following said inspection, on October 5, 2000, a "Commissioner of Health Order to Abate Nuisance" was issued to Weiss, directing abatement of the lead hazard. In response, Ms. O'Connor states that the landlord painted over some of the areas. As of November 27, 2000, violations were still found to exist, and, as a result, DOH, on December 4, 2000, issued Weiss a final order which plaintiffs allege was ineffectively complied with.
Affirmation of Dr. Rosen
In support of their motion, plaintiffs submit the affirmation, report and CV of Dr. John F. Rosen, a professor of pediatrics at Albert Einstein College of Medicine and Montefiore Medical Center in the City of New York, where he heads the Division of Environmental Sciences focusing on various aspects of metabolism of lead in children. Dr. Rosen reviewed various records regarding Russell Jr., including records of the DOH and Russell's testing, the affidavit of Ms. O'Connor, the report of Dr. Theodore Lidsky, PhD. Based upon his August 19, 2004 evaluation of Russell Jr., as well as performing a physical examination of Russell Jr. on May 31, 2006, Dr. Rosen opines, within a reasonable degree of medical certainty, that Russell Jr. was excessively exposed to toxic levels of lead in the form of particles of dust and/or debris which were ingested and inhaled by him from a time no later than the beginning of his residence in the apartment and continuing thereafter, and that toxic levels of lead existed in the apartment prior to the time the O'Connor family took up residence in the apartment. He further opines that such exposure to lead was a competent producing cause of Russell Jr.'s lead poisoning and resulting injury and resulted in the cognitive deficits identified in the separate evaluation conducted by Dr. Lidsky. Dr. Rosen opines that Russell Jr. sustained a loss of IQ points as a consequence of lead intoxication, that he suffered toxic injuries to his red blood cells and other hemo-related proteins throughout every organ in his body, including the brain, commencing no later than 7-10 days of his residence in the apartment and until the lead hazard was completely abated, and that such consequent impairment is permanent and irreversible.
Affirmation of Dr. Lidsky
Dr. Theodore I. Lidsky, Ph.D, is a licensed psychologist and the Director of the Center for Trace Element Studies and Environmental Neurotoxicology at the state-run Institute for Basic Research in Developmental Disabilities, which studies the effects of trace elements (and particularly heavy metals such as lead) on the human brain. He is also an adjunct professor in the Department of Neurology at the Thomas Jefferson School of Medicine. In his affirmed report, Dr. Lidsky, who examined and evaluated the infant plaintiff on August 19, 2004, indicates that neuropsychological and neurofunctional testing of Russell Jr. revealed specific impairments affecting expressive language (naming), fine motor functioning, visuospatial construction, visual attention, verbal memory, visuospatial memory and verbal concept formation, all of which are known sequelae of early childhood exposure to lead and which are indicative of "pediatric brain injury". Given the absence of other factors which could explain his deficiencies, Dr. Lidsky opines that brain damage from lead poisoning caused Russell Jr.'s neuropsychological impairments.
Plaintiffs contend that they have demonstrated, prima facie, their entitlement to judgment. They argue that they have demonstrated that (1) the premises were an actual or de facto multiple dwelling; (2) Weiss was fully aware of the presence in the apartment of children under the age of seven years; and (3) the existence of the lead hazard as demonstrated by DOH's records following its inspection and Weiss' failure to challenge said findings, as well as by the presumption created under Local Law 1 of 1982. Accordingly, plaintiffs contend that Weiss had constructive notice of the lead hazard, and aver that upon shifting of the burden, defendant fails to put forth any evidence that she took any reasonable and diligent steps to avoid the lead hazard. Defendant's opposition
Local Law 1 of 1982 (NYC Administrative Code former § 27-2013[h][2]) creates a presumption that peeling paint in a pre-1960 multiple dwelling occupied by a child under the age of seven years contains illegal levels of lead.
In opposition, Weiss avers, by way of her own affidavit, that 1342 Gates Avenue is a 2-family building and that she lived in the subject premises from the time that her mother bought the building in 1938 until 1965, when her family moved to Long Island. She states that her mother then rented the apartments in the premises and that in 1986, Weiss inherited the premises and continued to rent the apartments.
Weiss alleges that in the summer of 1999, she inspected the second floor apartment in preparation for renting it. She states that the paint was in good condition and that there was no peeling paint on any of the walls, moldings, doors, doorways, windows or window sills at the time of her inspection. She further states that from August of 1999, when she rented the apartment to the O'Connor family, to September 28, 2000, she received no complaints regarding any peeling paint conditions or paint dust or powder from them, and that she never observed any such conditions upon visiting the apartment on several occasions between 1999 and September of 2000.
Finally, Weiss avers that in November of 1999, she suffered a massive stroke which affected her ability to speak and function independently. Her representations in this regard are supported by an affirmation provided by her personal physician, Dr. Melvin Klein. Referring to O'Connor's deposition testimony, defendant points out that although he testified that the infant plaintiff did not suffer from any abnormal conditions at birth, O'Connor conceded that he and his wife were charged with neglect and that the infant plaintiff was removed from their custody when he was two weeks old, and that Russell Jr. was not returned to their custody until November or December of 1999, some 2½ years later. In addition, defendant refers to the testimony of Ms. O'Connor, who stated that: she suffered from complications during her pregnancy with Russell Jr.; that his birth was induced on an emergency basis; that he was ill at birth and placed in the neonatal intensive care unit where he received antibiotics and underwent a spinal tap; that after losing custody, Ms. O'Connor's mother filed a petition to obtain permanent custody of Russell Jr., claiming that his parents were neglectful and abused alcohol and cocaine; and that the infant plaintiff, after leaving his grandparents' care, experienced distress and adjustment problems.
Further referring to Ms. O'Connor's deposition testimony, defendants note that in September of 2002, the family moved to 500 Washington Avenue in Brooklyn, but were evicted in the summer of 2004, and that they were homeless, living in various shelters, between then and May of 2006. According to Ms. O'Connor, Russell Jr.'s sibling Brandon Younger experiences academic and behavioral difficulties and attends a self-contained special education program where he receives speech and language services.
Although Brandon (DOB 3/31/98) lived for a time at the subject premises, he never had elevated blood lead levels.
Defendant further cites the results of neurological examinations conducted of the infant plaintiff by Dr. William B. Head on December 23, 2003, and Dr. Thomas Boland on February 24, 2004.
Affirmation of Dr. Head
Dr. William Head is board-certified in the fields of neurology and psychiatry. In his affirmation dated April 26, 2007, Dr. Head states that on December 23, 2003, he conducted a neurological examination of Russell Jr., and interviewed O'Connor. He then prepared a report containing the results of his examination.
Dr. Head reports that Russell Jr. had a completely normal examination, during which time he was attentive, easily directed, and in no way hyperactive. According to Dr. Head, he displayed neither objective signs or symptoms of a brain injury, nor of any neurological condition or disorder, and, in the opinion of Dr. Head, "the mildly transiently elevated lead levels Russell O'Connor, Jr. experienced did not result in any neurological condition or disability."
Commenting on the deposition testimony of Ms. O'Connor, Dr. Head opines that Russell Jr. has experienced many stresses in his life, any one of which could be responsible for his reported problems. He suggests that hyperactivity, while not noted in his examination but raised in Ms. O'Connor's deposition testimony, is associated with drug withdrawal and certain post-natal infections. Citing the family history as reported by Ms. O'Connor, he opines that there is strong basis for believing that the learning issues, behavioral problems and attentional difficulties Russell Jr. is reported to experience are hereditary. He further opines, within a reasonable degree of medical certainty, that the history she provides establishes alternate etiologies that account for the deficits purportedly found by Dr. Lidsky at the time of his assessment in 2004, and disputes plaintiffs' reliance on the affirmations of Drs. Rosen and Lidsky, since they fail to address or consider the confounding factors as testified to by Ms. O'Connor.
Affidavit of Dr. Boland
Dr. Thomas Boland is a licensed psychologist in the State of New York, is a clinical Assistant Professor of Psychiatry and Behavioral Sciences at New York Medical College, and states that he has extensive experience and training in the field of pediatric neuropsychology and has evaluated several hundred children who have been exposed to lead-based paint.
Dr. Boland states that he performed a psychological evaluation of the infant plaintiff on February 23, 2004, when Russell Jr. was 6 years, 9 months of age. He further states that in conjunction therewith, interviewed O'Connor, reviewed the transcript of Ms. O'Connor's deposition testimony, as well as the affidavit of Dr. Lidsky and the affirmation of Dr. Rosen. In his affirmed report dated February 25, 2004, Dr. Boland states that his impression of Russell Jr. was that of a friendly, polite and well-related boy. There was no difficulty in understanding his speech, attention and focus was generally adequate. He was, however, noticed to be somewhat distractable, and although his level of frustration tolerance was adequate, he complained of being tired for the last test and was unable to complete it. On intellectual testing, he performed in the average to low average range; he displayed average perceptual motor skills on the Beery Buktenica Test of Visual Motor Integration, as well as on tests reflecting perceptual reasoning and constructional skills. Dr. Boland further reports that Russell Jr. performance on tests of working memory and attention was a low average level; that he scored at an average level in testing for language skills, and below average for his age on tests of basic academic skills.
Based upon his review of the aforementioned documents, it is Dr. Boland's opinion, as stated in his affirmation of April 26, 2007, that O'Connor had been less than truthful and forthcoming in providing an accurate medical, familial and social history for the infant plaintiff. He opines that in light of Ms. O'Connor's testimony, it is clear that infant plaintiff has sustained multiple significant developmental risks, any one of which could be independently responsible for the deficits of which he is purported to suffer. He notes that the history as related by her was not shared with Dr. Rosen or Dr. Lidsky, and states that "virtually every peer-reviewed study purported to examine the relationship between cognitive and intellectual functioning and lead levels have cited these variables as critical information that must be obtained and analyzed before it can be determined whether in fact a particular lead level has had a deleterious effect on a child's cognitive performance" (citing Ruff and Bijur [1989]; Hebben [2001]; Ris, et al, [2004]). He cites Hebben's finding that confounding factors such as genetic influence, parenting, and a child's psychological state have in many studies accounted for over 50% of a child's cognitive ability, whereas lead accounted for 1 to 2 % of a child's cognitive performance, and, citing authority, further notes the impact of child abuse and/or neglect, as well as family instability, on school performance and behavioral development. Thus, like Dr. Head, Dr. Boland opines, within a reasonable degree of psychological certainty, that the affirmation of Dr. Rosen and the affidavit of Dr. Lidsky cannot support the instant motion for summary judgment, since they do not address or consider the confounding factors testified to by Ms. O'Connor at her deposition, and he states his further belief that the infant plaintiff has endured multiple significant stressors, any one of which could be independently responsible for the deficits he is reported to suffer from. In opposition to plaintiffs' motion, defendant contends that Local Law 1 had no application during the time of the O'Connor family's tenancy, arguing that it was repealed in 1999 by Local Law 38, codified in Administrative Code § 27-2056.1 et seq. According to defendant, Local Law 38 replaced the policy of total elimination of lead paint as codified in Local Law 1 with a policy premised upon the concepts of monitoring and containment, narrowing the definition of a lead paint hazard from all existing lead based paint to "peeling lead based paint," and changed the owner's obligation from one of total elimination to one of visual inspection and containment. However, the Court of Appeals, in NYCCELP v Valone, 100 NY2d 337 (2003), found that the New York City Council's failure to comply with state and local environmental protection laws rendered Local Law 38 null and void. Nevertheless, defendant argues that NYCCELP v Vallone should not be given retroactive effect so as to render Local Law 1 applicable to lead poisoning cases that arose after November 12, 1999 and prior to June 30, 2003, including the case at bar.
Defendant further contends that questions of fact exist which bar plaintiffs' right to judgment. She argues that her testimony establishes that the subject premises was used as a two-family building prior to 1965, thus removing it, by definition, from the ambit of the statute's applicability. Alternatively, she contends that an issue of fact exists as to whether she knew that a lead paint hazard existed, based upon her sworn representation that she conducted a visual inspection of the premises prior to renting it to the O'Connor family, and the lack of any peeling paint condition or complaints regarding same. She further contends that the affirmation of Dr. Head and the affidavit of Dr. Boland raise an issue of fact as to causation, based upon: (1) Dr. Head's finding no evidence that the infant plaintiff sustained any neurological injury; (2) the independent conclusions of both experts that the infant plaintiff has endured multiple significant stressors, any one of which could be independently responsible for the cognitive, attentional and behavioral deficits that he is reported to demonstrate; and (3) Dr. Rosen's and Dr. Lidsky's failure to address critical issues surrounding Russell Jr.'s birth and family life. Plaintiffs' reply
In reply, plaintiffs challenge defendant's arguments regarding the applicability of Local Law 1 of 1982, citing language in NYCCELP v. Vallone to support their contention that it is, in fact, applicable. Plaintiffs dispute defendant's argument that the subject premises was not a multiple dwelling by referring to documentary evidence specifically, a real estate listing form prepared by Yvonne Noble, Weiss's real estate broker, identifying three separate income-producing apartments therein as of 1999. They thus argue that Weiss's representation that she never saw peeling paint or dust is insufficient to escape liability under the statute.
Plaintiffs assail defendant's expert submissions as insufficient to raise a factual issue as to liability, arguing that neither denies that Russell Jr. was, in fact, lead poisoned. They further argue that causation has been established because he has suffered an actionable injury, and characterize the expert's findings as speculative.
DISCUSSION
The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Garnham Han Real Estate Brokers v Oppenheimer, 148 AD2d 493; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion ( Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966). In addressing plaintiffs' motion, the court, as a threshold matter, rejects defendant's arguments that Local Law 1 of 1982 is not applicable. Although Local Law 1 of 1982 was in effect until November 12, 1999, when Local Law 38 was passed, the Court of Appeals unambiguously declared Local Law 38 null and void, and reinstated Local Law 1 of 1982 ( New York City Coalition to End Lead Poisoning, Inc. v Vallone, 100 NY2d 337; see O'Neal v New York City Housing Authority, 4 AD3d 348; Community Preservation Corp. v Miller ,5 Misc 3d 388; Morales ex rel. Hiraldo v 711 Topsey Corp., 12 Misc 3d 1172(A) [2003]). In response, the City Counsel drafted and passed Local Law 1 of 2004 ( see Community Preservation Corp., 5 Misc 3d at 390). Although the latter statute is silent on the question of whether its provisions are applicable to the period during which time those of Local Law 38 would have been in effect, time-specific language found in its notification provisions militates against a finding that its terms were to be applied retroactively (Administrative Code § 27-2056.4[e][4]). Accordingly, the court finds that the statute then in effect was Administrative Code of the City of New York § 27-2013 (h)(1) (Local Law 1 of 1982), which required an owner of a multiple dwelling to remove or cover paint containing specified hazardous levels of lead in any apartment in which a child of six years of age or under resides, and created a rebuttable presumption that all peeling paint in pre-1960 buildings where a child six or younger resided was lead-based paint ( see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646; Community Preservation Corp., 5 Misc 3d at 390).
In Local Law 38, the City Council removed the requirement that intact lead paint be removed from surfaces.
However, Local Law No. 1 does not impose a standard of absolute liability "under which '[n]o excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability'" ( Juarez, 88 NY2d at 643]). Rather, Local Law 1 imposes a standard of reasonableness, under which a landlord could show that the "hazard existed despite his diligent and reasonable efforts to prevent it" ( id).
Under the foregoing standard, plaintiffs have made a prima facie demonstration of entitlement to judgment as a matter of law. In this regard, in view of plaintiffs' showing, through: (1) Ms. O'Connor's testimony; (2) the testimony of Yvonne Noble; and (3) a document, prepared for the purpose of sale of the subject premises, representing that all three units were rented and generating income as set forth therein, the court finds that the premises was, in fact, a multiple dwelling (Multiple Dwelling Law § 4 [defining a "multiple dwelling", as "a dwelling which is . . . occupied as the residence or home of three or more families living independently of each other"]; see A Real Good Plumber, Inc v Kelleher, 191 Misc 2d 94 [App Term 2002]) and rejects defendant's disingenuous representation that 1342 Gates Avenue's use as a two-family house precludes the applicability of the statute. In addition, the record is unrefuted that a hazardous lead condition existed at various times, as set forth both in Ms. O'Connor's affidavit and in the DOH records, raising the presumption that lead-based paint was present, and that demonstrating, prima facie, that Weiss had constructive notice of the lead hazard under Juarez but undertook no effective program to remediate the condition( see Baptiste v New York City Housing Authority, 177 Misc 2d 51). Finally, plaintiffs have established, through the affirmation of Dr. Rosen and the affidavit of Dr. Lidsky, injury and causation. The burden thus shifts to defendant to raise by evidentiary proof in admissible form, a triable issue of fact ( see O'Neal, 4 AD3d at 349; Brito v Schechter, 269 AD2d 345, 346).
In Juarez, the Court of Appeals found that where a landlord retains the right to enter its leased premises, it may then be charged with constructive notice of a hazardous defect upon those premises.
Defendant has, through the evidentiary submissions of Dr. Head and Dr. Boland, raised such issue of fact. After thoroughly reviewing Russell Jr.'s history and conducting examinations, each expert concludes, independently, to a reasonable degree of scientific or medical certainty, that the infant plaintiff has endured multiple significant stressors, any one of which could be independently responsible for the cognitive, attentional and behavioral deficits that he is reported to demonstrate. By contrast, as pointed out by defendant, Dr. Rosen, while opining that Russell Jr.'s cognitive impairments could not be attributed to any alternate or contributing etiology, did not personally take a history during the course of his examination of infant plaintiff, but, rather, simply relied upon other sources. Dr. Lidsky relied upon the sharply- disputed contents of an interview with O'Connor in reaching his conclusions which ruled out any other factor which might have contributed to Russell Jr.'s deficits, failed to comment on the significance of the first two years of his life in foster care as a result of allegations of neglect and drug use, failed to weigh any effect on Russell Jr.'s development that might have resulted from the extended period of homelessness, and was silent on the academic history of Brandon Younger, who attended a self-contained special education program. There is thus a question of fact as to whether the alleged injury to infant plaintiff was solely the result of exposure to toxic levels of lead in the subject premises, mandating denial of plaintiffs' motion ( cf. Juarez, 88 NY2d at 648 [Court found speculative assertions of defendant's counsel and medical expert, who attributed deficiencies found in infant plaintiff to bilingual background and parents' educational level, not competent to defeat plaintiffs' motion for summary judgment]).
The foregoing constitutes the decision and order of the court.