Opinion
Index No. 305654/2011
02-15-2017
A. L an Infant by his Mother and Natural Guardian, HELENA CHARLES, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Defendant.
Present: Hon. Larry S. Schachner Justice, Supreme Court
Motion by defendant NYCHA for summary judgment dismissing the complaint is decided as follows:
In this action it is alleged that the infant plaintiff ingested lead paint while residing in defendant's building as the result of defendant's negligence in maintaining the premises. In moving for summary judgment defendant alleges that no lead based paint was found in the subject apartment. Based upon the papers submitted including the pleadings and sworn testimony the court is constrained to grant the motion to dismiss.
The record before the court indicates that a violation was never issued by the Department of Health or any other City agency, for peeling lead paint in the subject premises. Expert testing also did not find any actionable levels of lead in the apartment. Plaintiff mistakenly claims that the subject building was constructed prior to 1960, and thus is entitled to the presumption that any alleged peeling paint contains lead. However, the documentation provided by defendant in the form of the Certificate of Occupancy indicates that construction was completed in 1961. While there may have been peeling paint in the subject apartment during the relevant time period there is no credible proof that the paint contained lead and plaintiff cannot utilize the presumption. Counsel's speculation and Ms. Charles' conflicting testimony fail to raise an issue of fact.
Accordingly, New York City Housing Authority's motion for summary judgment is granted.
This constitutes the decision and order of the court. Dated: February 15, 2017
/s/ _________
LARRY S. SCHACHNER, J.S.C.