Melo-Perez v 602 W. 146th St. Assoc.

[*1] Melo-Perez v 602 W. 146th St. Assoc. 2006 NY Slip Op 50781(U) [11 Misc 3d 1089(A)] Decided on February 24, 2006 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 24, 2006
Supreme Court, New York County

Genesis Melo-Perez, an infant by her mother and natural guardian, CELIA PEREZ, and CELIA PEREZ Individually, Plaintiffs,

against

602 West 146th Street Associates and STELLAR MANAGEMENT, Defendants.



101629-02

Carol Edmead, J.

Plaintiffs, Genesis Melo-Perez, an infant by her mother and natural guardian, Celia Perez (the "infant plaintiff") and Celia Perez, Individually ("Celia") (collectively "plaintiffs"), move for an order pursuant to CPLR 3212, granting summary judgment in favor of plaintiffs on the issue of liability with respect to the claims of the plaintiffs against the defendants 602 West 146th Street Associates ("602") and Stellar Management ("Stellar"), on the ground that no triable issue of fact exists with respect to the defendants' negligence.

This case concerns the allegation that the infant plaintiff contracted lead poisoning during the Summer of 2001, while she was a resident at 602 West 146th Street, No.33 (the "subject premises" or the "subject apartment").

Plaintiffs argue that the infant plaintiff was born December 6, 1996 and was a healthy child and had regular check ups throughout her life. In February, 1999, plaintiffs moved to the subject apartment. Celia indicated on the rental application that the infant plaintiff would be a resident, and the window guard questionnaire indicated that a "child 10 years of age or younger" lived in the subject apartment. Further, when the infant plaintiff was between the ages of two and three, she interacted with the building's superintendent, numerous times when he visited the subject apartment on business related to his employment with the defendants.

Plaintiffs point out that the medical reports for the infant plaintiff from August 3, 2001 note that the infant plaintiff sucks her thumb. Said reports further indicate that a blood test conducted in June, 2001 revealed a blood-lead level of 5 micrograms per deciliter. A follow up test conducted in September, 2001 revealed that the minor plaintiff's blood-lead level had risen to 42 mcg/dl. An ensuing inspection conducted by the Department of Health uncovered fifteen (15) lead hazard violations in the subject apartment, with particularly high levels of lead on all of the door and window frames.

On September 27, 2001, 602 was ordered to abate the lead paint hazard at the subject [*2]apartment. An October 9, 2001 re-inspection revealed that 602 had failed to comply with the abatement order. On November 26, 2001, after a formal order, nine failed inspections, and two warning notices, an administrative tribunal of the Department of Health found 602 in violation of their order to abate the lead paint hazard at 602.

Plaintiffs assert that the minor plaintiff's poor appetite and inattention continuously worsened while she lived in the subject apartment, and her mother observed her putting paint chips in her mouth several times. On October 31, 2001, the minor plaintiff's lead level was retested and revealed that her blood-lead count was still above 40.

On November 9, 2001, the infant plaintiff was admitted to Lincoln Medical and Mental Health Center for therapy with the instruction that she "can't go home unless [she] has a safe environment." Because the defendants continued to disregard the abatement order, the infant plaintiff was unable to return home. On November 19, 2001, the infant plaintiff was transferred from the Lincoln Medical and Mental Health Center to a local safe house until other arrangements could be made. In March, 2002 the minor plaintiff and her family permanently vacated the subject premises.

The infant plaintiff continues to suffer adverse affects caused by her lead exposure in the Summer of 2001.

In opposition, defendants argue that questions of fact exist as to plaintiffs' ability to satisfy the standards to establish liability for lead paint in a New York building, to wit: (1) the building was constructed prior to 1960; (2) the landlord had actual and/or constructive notice of the presence of a child of six years of age or under; (3) that the defendants failed to take reasonable measures to alleviate lead contamination upon which it had notice; and (4) the lead paint condition complained of was the proximate cause of the claimed poisoning.

Defendants argue that Celia's deposition contradicts her position in this motion raising a question of fact. Contrary to the representations contained within the moving papers, there is no testimony within the record to establish that the infant plaintiff was at any time, seen putting paint chips in her mouth at the subject premises. Further, there is no evidence in the record or within the deposition testimony of the defendant, of any prior knowledge of lead paint violations or exposure with the subject apartment. Nor is there any testimony that the conditions within the subject apartment or the behavior of the infant plaintiff changed during this brief interval of the infant plaintiff's testing for lead levels. And, plaintiffs acknowledge that the infant plaintiff traveled to Santo Domingo prior to her diagnosis, which could be a basis for her elevated lead paint level.

Further, there is no evidence that the defendants had prior actual or constructive notice of the lead paint condition within the subject premises, nor a reasonable opportunity to remediate it prior to the infant plaintiff's diagnosis of statistically-significant elevated blood lead levels.

As of an inspection November 28, 2001, abatement work was proceeding within the subject apartment. On December 3, 2001, abatement workers were also present and plastic coverings were observed on the floors where abatement was ongoing. On December 5, 2001, all violations were noted to be complied with.

Finally, the examination of the infant plaintiff by Dr. Thomas Boland, Ph.D. indicated that the infant plaintiff's current level of overall cognitive functioning is in the average range.

In reply, plaintiffs argue that defendants do not deny (1) that the building was built before 1960; and (2) that defendants had notice that the unit in question was occupied by children under [*3]the age of seven years.

Plaintiffs further argue that case law does not require that the infant plaintiff establish that she was seen ingesting paint chips. Further, it matters not whether the landlord had actual notice of the condition as "the right of entry confirmed 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." The only defense to the statutory presumption of constructive notice is that the landlord made a reasonable effort to abate the condition but was unable to do so. The responsibility to abate, however, commences when a landlord learns that a child under seven years old occupies the premises, not when the injury occurs or the City sends a notice of violation.

As to proximate cause, the medical records from Lincoln Medical and Health Center dated November 9, 2001 show that the infant plaintiff's lead paint level on June 29, 2001 was merely 5 milligrams per milliliter, whereas on October 30, 2001, it was 40 milligrams per milliliter. An additional record of Lincoln Medical and Health Center contains a note on June 27, 2001, which states the child is "now back in U.S." These records clearly indicate that the infant plaintiff's exposure to lead took place sometime between June 29, 2001, when the lead level was 5 milligrams and October 30, 2001, as the lead level increased eight times to 40 milligrams. If the infant plaintiff were exposed in Santo Domingo, a highly inflated lead level would have been recorded on the June 29, 2001 blood test. Thus, defendants' argument that the infant plaintiff may have been exposed to lead paint on a previous trip to Santo Domingo is unfounded, sheer speculation, unsupported by the uncontroverted medical evidence.

Analysis

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]). It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212 [b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172 [1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show [*4]facts sufficient to require a trial of any issue of fact (CPLR §3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Defendant "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]).

Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co, 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Fried v Bower & Gardner, 46 NY2d 765, 767, 413 NYS2d 650 [1978]; Platzman v American Totalisator Co., 45 NY2d 910, 912, 411 NYS2d 230 [1978]; Mallad Const. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290, 344 NYS2d 925 [1973]; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347, 668 NYS2d 157 [1st Dept 1998]).

Although a motion for summary judgment may be denied if the facts essential to establish opposition "may exist but cannot then be stated" (CPLR 3212[f]), " [m]ere hope that somehow the plaintiffs will uncover evidence that will prove their case, provides no basis . . . for postponing a decision on a summary judgment motion" (Fulton v Allstate Ins. Co., NYLJ Jan. 18, 2005 p 26 col 3, citing Jones v Surrey Coop. Apts., Inc., 263 AD2d 33, 38 [1999], quoting Kennerly v Campbell Chain Co., 133 AD2d 669 [1987]).

Lead Paint

The owner of a multiple dwelling is required to remove or cover lead paint (Local Law No. 1 [1982] of City of New York § 1; codified as Administrative Code of City of NY § 27-2056.1 et seq. [formerly § 27-2013(h) ] ). The law includes a rebuttable presumption that peeling paint in a multiple dwelling erected prior to January 1, 1960 contains a hazardous concentration of lead (Administrative Code § 27-2056.5 [formerly 27-2013(h)(2) ] ) and provides that the condition constitutes an immediately hazardous (class C) violation of the Housing Maintenance Code (Administrative Code § 27-2056.6 [formerly 27- 2013(h)(3) ] ). In order to establish the liability of a landlord under Local Law 1, which 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 six years of age or younger resides, a plaintiff must demonstrate that the landlord had actual or constructive notice of the existence of a hazardous lead paint condition and that a child six years of age or under was living in one of its apartments (see Juarez v Wavecrest Mgt. Team Ltd., 88 NY2d 628, 647, 649 NYS2d 115, 672 NE2d 135 [1996]; O'Neal v New York City Hous. Auth., 4 AD3d 348, 349, 771 NYS2d 548 [2004]). In any multiple dwelling erected prior to January 1, 1960, where a child or children under six years of age resides and paint is peeling, it is presumed that the paint in the apartment is lead-based paint (see former Administrative Code § 27-2013(h)(2) and current Administrative [*5]Code § 27- 2056.5[a]; Juarez, 88 NY2d at 642, 649 NYS2d 115, 672 NE2d 135). Since Local Law 1 confers upon the landlord the right to enter dwelling units occupied by such children to inspect for and repair a lead paint defect, a landlord will be charged with constructive notice of any lead paint hazard within an apartment that he or she knows is occupied by a child of the specified age (Juarez, 88 NY2d at 647, 649 NYS2d 115, 672 NE2d 135; Jiminez v City of New York, 7 AD3d 268, 269, 775 NYS2d 530 [2004]; Woolfalk v New York City Hous. Auth., 263 AD2d 355, 355-356, 692 NYS2d 386 [1999]; Rivas v 1340 Hudson Realty Corp., 234 AD2d 132, 135-136, 650 NYS2d 732 [1996] ). The plaintiffs herein are entitled to summary judgment on the issue of liability on their cause of action to recover damages for personal injuries resulting from the infant plaintiff's ingestion of lead paint. Plaintiffs have satisfied all four of the elements necessary to warrant the granting of summary judgment on the issue of liability. It is uncontested that the subject premises were built before 1960. The defendants had actual and constructive notice that a child under the age of seven resided in the subject apartment. Further, the plaintiffs met their burden of establishing that the infant plaintiff suffered from lead poisoning as a consequence of her ingestion of lead-based paint at the subject premises. The argument of the defendants that the infant plaintiff might have been exposed to lead hazard in Santo Domingo is insufficient to raise an issue of fact as to the source of the lead found in the infant plaintiff's system (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718; Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 649 NYS2d 115, 672 NE2d 135; cf. Bellony v Siegel, 288 AD2d 411, 412, 732 NYS2d 647; Gonzalez v Cheng, 287 AD2d 595, 596, 731 NYS2d 887, lv. denied 97 NY2d 613).Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion of Plaintiffs, Genesis Melo-Perez, an infant by her mother and natural guardian, Celia Perez and Celia Perez, Individually, for an order pursuant to CPLR 3212, granting summary judgment in favor of plaintiffs on the issue of liability with respect to the claims of the plaintiffs against the defendants 602 West 146th Street Associates and Stellar Management, on the ground that no triable issue of fact exists with respect to the defendants' negligence, is granted. It is further

ORDERED that counsel for plaintiffs shall file a Note of Issue on or before March 6, 2006 and report to Part 40, 60 Centre Street, Room 242 at 9:30 a.m. for trial on damages on March 27, 2006. It is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry within twenty days of entry, on counsel for defendants.

This constitutes the decision and order of this court.

Dated:February 24, 2006___________________________

Carol R. Edmead, J.S.C. [*6]