Opinion
No. 194 SSM 24.
Decided September 9, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered October 23, 2007. The Appellate Division affirmed an order of the Supreme Court, Bronx County (Paul A. Victor, J.; 8 Misc 3d 369), which had granted a motion by defendant LSL Services for summary judgment, to the extent of dismissing claims on behalf of plaintiff Jose Peri, granted the motion by defendant City of New York for partial summary judgment to the extent of dismissing all claims except those relating to plaintiffs' second period of occupancy in its building, and granted plaintiffs' cross motion to the extent of deeming later notices of claim against the City timely served. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
Plaintiffs commenced this action seeking damages for injuries sustained when the infant plaintiffs allegedly ingested lead paint while living in a city-owned building.
The Appellate Division majority concluded that whether the City had notice of an infant resident was a triable issue of fact which precluded summary judgment; that uncontroverted affidavits by plaintiff mother and her sister, the tenant of record, created issues of fact as to whether the City had notice that a child under seven resided in the city-owned building; that the affidavits indicated that the building superintendent saw the child at the sister's apartment and that he recognized the sister; and that the City failed to show that the affidavits contradicted plaintiff mother's deposition testimony.
Peri v City of New York, 44 AD3d 526, affirmed.
Michael A. Cardozo, Corporation Counsel, New York City ( Karen M. Griffin of counsel), for appellant.
Fitzgerald Fitzgerald, P.C., Yonkers ( John M. Daly of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative for the reasons stated in the memorandum at the Appellate Division ( 44 AD3d 526 [1st Dept 2007]).