Opinion
35004/06.
Decided June 10, 2008.
The plaintiffs are represented by the law firm of Martin L. Ginsberg, P.C., by Martin L. Ginsberg, Esq., of counsel, the defendant the New York City Housing Authority is represented by the law firm of Herzfeld Rubin, P.C. by Herbert Lazar, Esq., of counsel.
Infant plaintiff Damiek Williams and his mother Krystal Williams ("Williams") allege in the complaint that the infant was exposed to lead paint while residing at 1443 McBride Street, Far Rockaway, Queens. Plaintiff sued the City of New York ("the City") and the New York City Housing Authority ("NYCHA") asserting that they were negligent in administering Section 8 of the United States Act of 1937, 42 U.S.C. 1437f ("Section 8") housing program because the infant was placed in a residence with lead and had a significant rise in his lead blood level causing medical problems.
NYCHA now moves for summary judgment for an order dismissing the complaint as the NYCHA did not own the premises and that it's only involvement in the case relates to it's status as a "public housing agency" under Section 8. The City of New York does not oppose the motion. Plaintiffs oppose arguing that the NYCHA was negligent in transferring them into the property which was subsequently found to contain lead. Plaintiffs maintain that the NYCHA breached a warranty of habitability, negligently inflicted emotional distress, is liable for loss of services, violated the "multiple dwelling law" Local Law 1, and other ordinances, rules, regulations and statutes.
The function of the NYCHA in its capacity as a public housing agency is that it administers the Section 8 program and acts as a conduit of federal housing funds. The NYCHA does not select a residence for families; however, it issues vouchers for those eligible who give the voucher to landlords who are eligible and can accept them as tenants. The families that are eligible for Section 8 vouchers find an apartment on their own. Once the family has chosen a residence the NYCHA authority conducts an inspection of the dwellings to make sure they meet the "housing quality standards" set by the federal government ( 24 C.F.R. 982.305 [a][2], 982.405[a]). If the unit passes inspection, the NYCHA will issue the federal funds to pay a portion of the rent directly to the landlord. Once the family is a tenant, the NYCHA will conduct periodic inspections of the apartment to ensure that the apartment continues to meet housing quality standards.
A review of the procedural history of the case is instructive. The Williams family had participated in the Section 8 program since 1999. The infant plaintiff was born on July 9, 2003. At that time, the family resided at 22 Monaco Street, Brooklyn. On March 8, 2004, the family requested a transfer from that address and on April 19, 2004, a housing voucher was issued advising the prospective landlord that the family was approved for Section 8 subsidies. With the help of a real estate agent, the Williams located an apartment at 1443 Mc Bride St., Far Rockway, Queens, NY On May 2, 2004, the private landlord, Michele Moncrieffe, executed a Housing Assistance Payment contract ("HAP contract) between herself and NYCHA. The HAP contract contains a "tenancy addendum" which states that the owner must maintain the unit according to housing quality standards. As part of the HAP contract, Williams, the landlord and the real estate agent executed a Disclosure of Lead-Based Paint and/or Lead-Based Paint Hazards. Prior to the Williams moving into the premises on May 21, 2004, the unit was inspected by the NYCHA. The report showed that there were no problems discovered in the apartment with notations that the exterior surfaces on the outside and inside rooms were free of cracking and peeling loose paint. The report was signed by the landlord and Williams. On September 22, 2005, a phone call was made by Williams to the NYCHA to inform the authority that her child was hospitalized for lead poisoning and that the Department of Health had told her to vacate the premises. A transfer form was sent to the infants mother who thereafter filed a written complaint. The New York City Health Department found violations concerning lead in the Williams apartment in a report on September 27, 2005, and a violation was issued by the Health Department along with a notice to abate.
The Court of Appeals in Pelaez v Seide , 2 NY3d 186 addressed the situation in which a municipality can be held liable in the context of children poisoned by lead. Stating that where a special relationship is shown between a plaintiff and a municipality, the government is under a duty to exercise reasonable care towards a plaintiff. The Court stated that a special relationship can be formed when;
As we noted in Lauer v City of New York ( 95 NY2d 95, 99 [2000]), "[a] public employee's discretionary acts — meaning conduct involving the exercise of reasoned judgment — may not result in the municipality's liability even when the conduct is negligent." To impose liability, there must be a duty that runs from the municipality to the plaintiff. We have recognized a narrow class of cases in which a duty is born of a special relationship between the plaintiff and the governmental entity. When such a relationship is shown — and it is plaintiff's burden to establish it — the government is under a duty to exercise reasonable care toward the plaintiff (see **6 Garrett v Holiday Inns, 58 NY2d 253, 261 [1983]). A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation.
Though a special relationship can be formed in three ways, the Court of Appeals in Pelaez when analyzing the first prong of the test to see if a special duty exists stated that one should be implied when,
(1) the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) recognition of a private right of action would promote the legislative purpose of the governing statute; and (3) to do so would be consistent with the legislative scheme (see Sheehy v Big Flats Community Day, 73 NY2d 629, 633 [1989]).
and the Court further stated that for:
the lead poisoning prevention act, we conclude that a private right of action is not available under the statute. Therefore plaintiffs may not assert a special relationship based on a claimed violation of statutory duty."
In this case, the Court finds that the defendant NYCHA by documentary evidence and an affidavit of the Manager of Customer Service of the NYCHA, which outlines the history of the case, has established that the agency was acting within the scope of its statutory duties and did not reach beyond that duty. Therefore, the NYCHA has met the burden of showing entitlement to summary judgement as a matter of law. ( Wingrad v New York Univ. Med. Center, 64 NY2d 851.)
The Court then looks to plaintiff who has submitted only an attorney's affirmation which does not supply any evidence for the Court to consider concerning whether a special relationship beyond the statutory duty arose. ( Zuckerman v City of New York, 49 NY2d 559.)
In light of the forgoing, the assertion by the defendant NYCHA that the complaint must be dismissed for failure to comply with the requirements of serving a notice of claim do not need to be considered.
Accordingly, the Court grants the motion for summary judgment and directs the Clerk of the Court to enter judgment dismissing the complaint against defendant NYCHA with prejudice.
The foregoing constitutes the decision and order of the Court.