Opinion
9077/2007
11-15-2011
Kevin Daniel Martinez by his father and natural guardian PABLO MARTINEZ and PABLO MARTINEZ individually, Plaintiffs, v. Levana Levy, Defendant.
For the Plaintiffs: Monaco & Monaco, LLP, Frank A. Delle Donne, Esq. For the Defendants: Bivona & Cohen, P.C., by Andrew Sapon, Esq.
For the Plaintiffs: Monaco & Monaco, LLP, Frank A. Delle Donne, Esq.
For the Defendants: Bivona & Cohen, P.C., by Andrew Sapon, Esq.
Charles J. Markey, J.
The following papers numbered 1 to 10 read on this motion by the defendant to dismiss the complaint, pursuant to CPLR 3212.
Notice of Motion - Affidavits - Exhibits........................................1-4
Answering Affidavits - Exhibits.....................................................5-7
Reply Affidavits..............................................................................8-10
The plaintiffs, in this negligence action, seek damages for lead poisoning suffered by his infant son, plaintiff Kevin Daniel Martinez, while the two resided at 1160 Neilson Street, Far Rockaway, in Queens County, New York ("the premises"). The premises are owned by defendant. Plaintiffs resided in the first floor apartment of the premises from the birth of plaintiff Kevin Daniel Martinez (also referred to as "the infant plaintiff") until April, 2006, when an Abatement Order was issued by the City of New York Commissioner of Health for lead contamination in the apartment. Defendant moves for summary judgment, pursuant to CPLR 3212, to dismiss the complaint on the ground that she had no notice of the alleged dangerous condition. Plaintiffs oppose the motion.
The infant plaintiff was born on April 18, 2004, and resided in a first floor apartment in the premises at issue from birth until April, 2006. Plaintiff Pablo Martinez rented the first floor apartment on November 1, 2002, and resided there until April, 2006, when he left because of the Abatement Order issued by the City of New York Commissioner of Health.
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 to defendant. While defendant claims that the premises is a one-family unit, it was being occupied as a multi-family unit, with tenants in the basement, first floor, and second floor apartments. Deposition testimony and affidavits from the various tenants indicate that the paint in the apartments was visibly peeling off the walls and that the landlord would enter the apartments monthly to collect rent and make repairs. There is also evidence that the defendant knew that there were children in the first floor apartment.
Local Law 1 requires the owner of a multiple dwelling to "remove or cover" paint containing specified hazardous levels of lead in any apartment in which a child under the age of seven years resides (Administrative Code of City of NY § 27-2013 [h] [former section], now codified in §§ 27-2056.3 & 27-2056.18 ; see, Juarez v Wavecrest Mgt. Team, Ltd., 88 NY2d 628 [1996]). In the seminal Juarez case, the Court of Appeals held that: "Local Law 1 . . . establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition (see, Administrative Code § 27—2013[h][2])." (Juarez v Wavecrest Mgt. Team, Ltd., 88 NY2d at 647).
The history of "Local Law 1" (formerly Administrative Code 27—2013[h]) included that it was adopted by the New York City Council in 1982. The City Counsel replaced it in 1999, with "Local Law 38," which was less stringent. In 2003, the Court of Appeals vacated "Local Law 38" and effectively reinstated "Local Law 1," now set forth in Administrative Code 27—2056, et seq. (see, New York City Coalition to End Lead Poisoning, Inc. v Vallone, 100 NY2d 337 [2003]).
It is well settled that a landlord who has notice of a child underseven years old living in one of its apartments is a landlord who has notice of any hazardous lead condition in that apartment causing injury to that child. The Court of Appeals, in Juarez v Wavecrest Mgt. Team (88 NY2d 628), stated so repeatedly, in the following quoted excerpts from that opinion:
"Under the statutory scheme, a landlord who has such notice [of a child under seven living in one of its apartments] is chargeable with notice of any hazardous lead condition in that unit." (88 NY2d at 638).
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"We conclude that liability does not attach under Local Law 1 unless a landlord has actual or constructive notice that a child under seven resides in the apartment, but that landlords with such knowledge may be charged with notice of dangerous lead conditions within their buildings." (88 NY2d at 640).
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"[T]he right of entry conferred by Local Law 1 gives a landlord constructive notice of any lead paint hazard within an apartment that the landlord knows is occupied by a child of the specified age." (88 NY2d at 647).
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"If ... [the landlord] had knowledge that a child under seven resided in the apartment, it may be charged with notice of the lead hazard prior to receipt of the Order [to Abate Nuisance]." (88 NY2d at 648).
Although the decision in Juarez v Wavecrest Mgt. Team (88 NY2d 628) twice alludes to the statutory presumption of a hazardous lead condition raised by peeling paint in an apartment occupied by a child under seven yearsin a building erected before 1960 (id. at 642 & 647), it accepts that the landlord did not have actual notice of the peeling paint in the apartment (id. at 638-639), and nowhere expressly says whether the building was erected before or after 1960. Any implication in the decision that that building was erected prior to 1960 does not change the thrust of the above quoted statements.
Here, on the foregoing papers, there is no dispute that the landlord knew that a child under seven was living in the apartment; the record amply supports a finding that the apartment had a hazardous level of lead paint and that the child suffered lead paint injuries; and, as in Juarez (88 NY2d at 645), there is no dispute that the child sustained his injuries before the landlord had taken any steps to abate the hazard. Furthermore, the lease plainly states that the landlord may at reasonable times, enter the apartment to examine, make repairs or alterations and to show it to possible buyers, lenders or tenants. Photographs of the apartment depict, inter alia, peeling paint on the walls. Affidavits from plaintiffs and the other two tenants indicate that defendant would enter the various apartments two to three times per month to collect rent and view the apartments. Based on the above, defendant failed to meet her prima facie burden of establishing that she lacked constructive notice of a hazardous lead condition at the premises (see, Blackwell v Mikevin Mgt. III, LLC, ___ AD3d____, 931 NYS2d 116 [2nd Dept. 2011]; Brown v Smith, 85 AD3d 1648 [4th Dept. 2011]; Shafi v Motta, 73 AD3d 729 [2nd Dept. 2010]; Rivas v Danza, 68 AD3d 743 [2nd Dept. 2009]; Harden v Tynatishon, 49 AD3d 604 [2nd Dept. 2008]; Molina v Belasquez, 1 AD3d 489 [2nd Dept. 2003]; Vidal v Rodriquez, 301AD2d 517 [2003]).
Accordingly, the motion to dismiss is denied.
The foregoing constitutes the decision, opinion, and order of the Court.
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J.S.C.