Peri v City of New York

Peri v City of New York 2005 NY Slip Op 25137 [8 Misc 3d 369] March 28, 2005 Victor, J. Supreme Court, Bronx County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 27, 2005

[*1] Victor Peri and Others, Infants, by Their Mother and Natural Guardian, Eribel Peri, et al., Plaintiffs,
v
City of New York et al., Defendants.

Supreme Court, Bronx County, March 28, 2005

APPEARANCES OF COUNSEL

Michael A. Cardozo, Corporation Counsel (Christopher J. Murdoch of counsel), for City of New York, defendant. Henry Simon, White Plains (Linda Trummer-Napolitano of counsel), for LSL Services, Inc., defendant. Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for plaintiffs.

OPINION OF THE COURT

Paul A. Victor, J. Relief Sought

In this complex lead paint case brought on behalf of three infant plaintiffs, defendant LSL Services, Inc. and defendant City of New York each move for summary judgment pursuant to CPLR 3212 dismissing the complaint. Plaintiffs cross-move for an order deeming six notices of claim previously served on the City to be timely nunc pro tunc.

The motions and cross motion are consolidated for disposition and decided as follows. An Unsettled Issue?

One of the issues presented herein appears to be quite controversial and is apparently novel. Is a lead paint claim actionable when the reported blood lead level (i.e., 6 |gmg/dL) is less than what is considered by the Centers for Disease Control (CDC) to be the threshold for "normal"? According to the CDC, a child must have a blood level of 10 |gmg/dL or more to be considered eligible for monitoring. The issue is unsettled, especially in the context of the circumstances now presented. Facts and Legal Arguments of Parties

This action was commenced on behalf of three infants who allegedly sustained lead poisoning at three separate residences—1530 Bryant Avenue, owned by defendant City; 51 West 119th, owned by defaulting defendant Annie Nebblett; and 2730 Decatur Avenue, owned by defendant LSL.

According to the plaintiffs, in 1987, Eribel Peri, the plaintiffs' mother, emigrated from Honduras and moved into her sister's one-bedroom apartment, owned by defendant City, at 1530 Bryant Avenue, Bronx, New York.

While living at the City apartment, Eribel had her first son, Victor Peri, on January 20, 1988 at Lincoln Hospital. During this time, Victor received several lead screenings during routine medical checkups and during WIC program checkups at Lincoln Hospital. He was never diagnosed with an elevated blood lead level while living at the City apartment. Harvey Arzu was born March 18, 1989 at Lincoln Hospital, and lived at the City building for the first two years of his life. During that time he also received regular medical checkups at Lincoln Hospital. Harvey was never diagnosed with medical problems of any kind and, although it is unclear as to whether he was screened for lead, there is no indication in the record that he had any elevated blood lead levels or any symptoms consistent with lead exposure.

Eribel Peri remained at the City apartment until May 1991. On or about May 5, 1991, she moved with her two children to a one-bedroom apartment at 51 West 119th Street, New York, New York, [*2]owned by defendant Nebblett and managed by a court-appointed 7A Administrator. On October 8, 1991, Victor was diagnosed with an elevated blood lead level of 26 (or 43) |gmg/dL.[FN1] Because of Victor's elevated blood lead diagnosis, the Department of Housing (DOH) inspected the Nebblett premises on October 17, 1991. Peeling paint was found, along with 22 lead violations. On October 24, the Department of Housing issued an order to abate to the 7A Administrator.

In 1992, plaintiffs moved to 2730 Decatur Avenue owned by defendant LSL. While living at the LSL apartment, Harvey Arzu (and/or someone known as "Horug Arzo") was diagnosed with an elevated blood lead level of 18 |gmg/dL on July 14, 1993.[FN2] On September 14, 1993, Environmental Management Systems, Inc. inspected the LSL apartment for the presence of lead. The report shows that there was lead present, and that children were living in the apartment at the time of the inspection. During this period Victor's blood level was reduced to 6 |gmg/dL as determined by a test conducted on September 2, 1992. Eribel Peri returned to the City apartment with her three children in October 1993 and resided there until December 1995. The blood levels of the three children for all four periods of occupancy are summarized on the following time-line chart as follows: Time-Line Chart

1987 to May 1991—(1530 Bryant Avenue [defendant City])

(1) Victor Peri (born Jan. 20, 1988)

Medical exams on January 25, 1989 and June 12, 1989 and during 1990 atLincoln

Hospital for Victor Peri indicate no lead poisoning.

(2) Harvey Arzu (born Mar. 18, 1989)

Regular medical checkups and no abnormal lead levels noted.

May 1991 to April 1992—(51 West 119th Street [defendant Nebblett])

(1) Victor Peri

Lead level 26 or 43 |gmg/dL on October 8, 1991, 24 |gmg/dL on October 24, 1991,

and lead level 13 |gmg/dL on February 25, 1992

(2) Harvey Arzu

Regular medical checkups and no abnormal lead levels noted.

April 1992 to October 1993—(2730 Decatur [defendant LSL])

(1) Victor Peri

Lead level 6 |gmg/dL on September 2, 1992

(2) Harvey Arzu and/or "Horug Arzo" [*3]

Lead level 18 |gmg/dL on July 14, 1993[FN3]

(3) Jose Peri (born July 7, 1992)

Zinc protoporphyrin level (zpp)