Opinion
11822/2003.
Decided February 7, 2008.
In June, 2003, the instant action sounding in personal injury and medical malpractice, was commenced by service of a complaint. The allegations in the complaint arose from the infant plaintiffs' exposure to lead in their apartment owned by defendants Robert Danza and Steven Fleissig [Danza Fleissig], and eventually sold to defendant Cruciata Sons, LLC [Cruciata], and the medical treatment rendered by defendants Dr. Arthur Buonaspina, Zvi Eckstein, M.D., and Staten Island University Hospital [SIUH].
Rivas v. Danza Fleissig (Motion Nos. 003)
The infant plaintiffs, Christopher and Nicholas Rivas were born on September 3, 1999, and resided at 244 Gordon Street, Staten Island, New York. In or around March, 2002, the plaintiff's moved to 55 Laurel Street, Staten Island, New York [hereinafter "the subject premises"]. It is undisputed that the subject premises was a two-family home, half of which was rented by plaintiffs. At the time, the subject premises was owned by defendants Danza and Fleissig. On or about June 23, 2002, the subject premises was sold to defendant Cruciata. The plaintiffs admit that the subject premises was in good condition except for paint peeling off of the radiators and base boards in the bedrooms.
The infant plaintiffs were first tested for lead poisoning at age one, on or about September 13, 2000, and the results were 3ug/dl, or negative for lead poisoning. The next test the infants received for lead poisoning was after they moved into the subject premises, on or about July 25, 2002. The test indicated that both Christopher and Nicholas were lead poisoned with blood lead levels at 22 ug/dl, and 10 ug/dl, respectively. As a result, the New York State Department of Health [DOH] performed an inspection of the subject premises and determined that lead levels in the home were hazardous and issued an Order to Abate Nuisance on August 1, 2002. The abatement was performed and DOH issued a clearance letter to defendants Cruciata in or around June, 2003. Subsequently, in January 2004, the infant plaintiff Christopher Rivas still retained elevated blood lead levels, while Nicholas Rivas' lead levels have diminished.
The United States Center for Disease Control and Prevention, along with the New York City Health Code and the New York City Public Health Law have declared that children's blood lead levels equal to or above 10 ug/dL constitute lead poisoning ( see 10 NYCRR 67-1.1; Pub. Health Law § 1370[6]).
Generally, "to impose liability on a landlord for a lead paint condition, a plaintiff must establish that the landlord had actual or constructive notice of and a reasonable opportunity to remedy the hazardous condition" ( Chapman v Silber, 97 NY2d 9, 22; Patterson v. Brennan, 292 AD2d 582, 583 [2nd Dept. 2002]; Alonso v. Coutinho Enter. Inc., 35 AD3d 641, 641 [2nd Dept. 2006]). Where the residence is a single family premises, constructive notice can only be charged after the plaintiff has demonstrated that the landlord "(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" ( Chapman v Silber, 97 NY2d 9, 22).
Here, defendant Danza and Fleissig have established their prima facie entitlement to summary judgment as a matter of law ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In opposition, however, plaintiffs have presented evidence sufficient to create a triable issue of fact. The plaintiffs have presented evidence that defendants Danza and Fleissig retained a right of entry and duty to make repairs, as provided in the lease agreement between the two parties and that defendants knew the premises was constructed before lead-based paint was banned, pursuant to the purchase contract and certificate of occupancy. In addition, there are numerous questions of fact regarding whether the defendants Danza and Fleissig knew of or should have known of the peeling paint in the apartment and/or that children were living in the subject premises ( Chapman v. Silber, 97 NY2d 9). The DOH report issued after infant plaintiff's were diagnosed as lead poisoned, notes that while the apartment was in generally good condition, the window casings/radiators were not. As a result, questions of fact exist regarding whether defendant Danza and Fleissig can be charged with constructive notice of the lead based paint in the apartment and thus summary judgment is denied.
The lease agreement states that the "[l]andlord may at reasonable times, enter the Apartment to examine, to make repairs or alterations".
Rivas v. Cruciata (Motion No. 005)
With regard to defendant Cruciata's motion to for summary judgment; defendant Cruciata has established prima facie entitlement to summary judgment ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Defendant Cruciata has established that it took title from co-defendant Danza and Fleissig on or about June 24, 2002, and received the Notice to Abate, from the DOH, approximately thirty-four (34) days thereafter. During that time period, defendant Cruciata has established that, inter alia, they were not aware of any peeling paint on the premises, or that the infant plaintiff's resided at the subject premises.
In opposition, the plaintiffs have failed to raise a triable issue of fact regarding whether plaintiff knew or should have known of the chipping/peeling paint and had a sufficient time to remedy the issue ( Batista v. Mohabir, 291 AD2d 365, 365 [2nd Dept., 2002]). In fact, the only evidence that plaintiff offered to prove defendant's actual or constructive notice of the peeling paint is the DOH Notice to Abate received 34 days after defendant Cruciata took possession of the premises and after infant plaintiff's were diagnosed with lead poisoning. The plaintiff presented no evidence whatsoever that any complaints were made to defendant Cruciata regarding peeling paint prior to the infant plaintiffs being diagnosed with lead poisoning. In addition, the plaintiff has not presented any evidence that would constitute notice to defendant Cruciata. Furthermore, defendant, after receiving the Notice to Abate promptly began the abatement process and, by law, is entitled to a "reasonable time" to remedy the situation ( id. ). As such, the plaintiff has failed to raise an issue of fact regarding whether defendant Cruciata has actual or constructive notice of the lead paint, with a sufficient time to remedy ( id. ; Chapman v. Silber , 97 NY2d 9 [2001]; Shafqat v. Blackman , 16 AD3d 574 , 574 [2nd Dept., 2005]). Rivas v. Dr. Buonaspina, Dr. Eckstein and SIUH (Motion No. 004) The Court initially notes that the defendants Drs. Buonaspina, Eckstein and SIUH are only moving for summary judgment against infant plaintiff Nicholas Rivas on the ground that he did not sustain any injury as a result of the alleged medical malpractice. As previously indicated, the twin infant plaintiffs were born on September 3, 1999, at SIUH. The defendants Drs. Buonaspina and Eckstein were infant plaintiff's treating pediatricians. On or about March 15, 2000, defendant Buonaspina recommended that Nicholas be evaluated for an Early Intervention Program and was thereafter examined by a physical therapist and special education specialist, both of whom opined that Nicholas' cognitive and motor skills were "normal" and early intervention was unnecessary. In or around September of 2000, both children's lead levels were tested and resulted in minimal lead levels, i.e., less that 3 ug/dl in each child. In March 2002, the plaintiff's moved into the subject premises and soon thereafter, in or around July 2002, Nicholas presented elevated lead levels of 10 ug/dl. The plaintiff's thereafter commenced this action alleging, inter alia , that defendants Drs. Buonaspina, Eckstein and SIUH failed to timely diagnose the infant's lead poisoning and failed to adequately warn/advise/counsel plaintiff Nicole Austin on the dangers, signs/symptoms of lead poisoning in her children. The defendants Drs. Buonaspina, Eckstein and SIUH established their prima facie entitlement to summary judgment by adducing expert opinion that they did not deviate from good and accepted medical practice in their treatment of the infant plaintiff Nicholas Rivas ( see Alvarez v. Prospect Hosp. , 68 NY2d 320, 325 [1986]). Defendant's expert, Dr. Yitzchak Frank, opined that infant plaintiff, Nicholas Rivas, suffers from no "neurological deficit" after an examination where he displayed "no spinal or cardiovascular abnormalities" along with good cognitive ability. As such, the defendants Drs. Buonaspina, Eckstein and SIUH did not deviate from accepted medical practice in their treatment of infant plaintiff Nicholas Rivas and established their prima facie entitlement to summary judgment dismissing the complaint as against them. In opposition, the affidavit of plaintiff's medical experts, Drs. Douglas Savino and Theodore I. Lidsky, raise a triable issue of fact. Plaintiff's expert Dr. Savino opined that the defendants deviated from accepted medical practice by, inter alia , failing to give infant plaintiff Nicholas Rivas a Risk Assessment before the his second birthday. Specifically, that had defendant Drs. Buonaspina or Eckstein given Nicholas a risk assessment before that date, they would have revealed that Nicholas was a high risk candidate and continued testing every six months, as well as provided counseling to his mother on the prevention of lead poisoning. Further, Dr. Savino, along with Dr. Lidsky, opined that Nicholas Rivas sustained injury as a result of defendants Buonaspina, Eckstein and SIUH's alleged malpractice. Particularly, that infant plaintiff Nicholas Rivas suffers from focal deficits in the areas of memory function, concept formation, visuospatial memory and cognitive flexibility. As a result, it is well settled that contradictory medical expert opinions creates a triable issue of fact for the jury and precludes the granting of summary judgment ( Graham v. Mitchell , 37 AD3d 408 , 409 [2nd Dept., 2007]; Barbuto v. Winthrop Univ. Med. Ctr , 305 AD2d 623, 624 [2nd Dept., 2003]; Shields v. Baktidy , 11 AD3d 671, 672 [2nd Dept., 2004]). Rivas v. Danza and Fleissig (Motion 006) The cross motion brought by defendants Danza and Fleissig, on or around November 27, 2007, serves to join defendants Drs. Buonaspina, Eckstein and SIUH's motion for summary judgment on the ground that infant plaintiff Nicholas Rivas did not sustain any injury related to the lead poisoning. In connection with the aforementioned analysis of Drs. Buonaspina, Eckstein and SIUH's motion, the defendants Danza and Fleissig's cross motion is also denied. As a result of triable issue of fact and credibility issues resulting from the parties divergent experts, summary judgment is inappropriate ( Graham v. Mitchell , 37 AD3d 408 , 409 [2nd Dept., 2007]; Barbuto v. Winthrop Univ. Med. Ctr , 305 AD2d 623, 624 [2nd Dept., 2003]; Shields v. Baktidy , 11 AD3d 671 , 672 [2nd Dept., 2004] Accordingly, it is,
ORDERED that the defendants Robert Danza and Steven Fleissig's motion and cross-motion, for summary judgment against plaintiffs is denied, and it is further,
ORDERED that the defendants Cruciata Sons, LLC's motion for summary judgment dismissing the complaint is granted, and it is further
ORDERED that the defendants Dr. Arthur Buonaspina, Dr. Zvi Eckstein and Staten Island University Hospital's motion for summary judgment against plaintiffs is also denied. THIS IS THE DECISION AND ORDER OF THE COURT.