Morales v 711 Topsey Corp.
Annotate this CaseDecided on June 26, 2006
Supreme Court, Bronx County
Erika Morales, an infant by her mother Yoselyn Hiraldo and Yoselyn Hiraldo, individually, Plaintiffs,
against
711 Topsey Corp., Defendant.
25535/00
Plaintiff's counsel: Martin R. Munitz, Esq.
Defendant's counsel: Edward Kim, Esq. of Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C.
Alexander W. Hunter, J.
Upon the foregoing papers, the motion by defendant for summary judgment, is denied.
The cause of action arises out of personal injuries alleged to have been sustained by the plaintiffs as a result of exposure to lead paint at the premises owned by the defendant at 711 Fairmount Place, apartment 4A, Bronx, New York.
Plaintiff Hiraldo is alleged to have moved into the aforesaid apartment on February 10, 1998. She became pregnant with infant plaintiff Morales in January of 2000. The infant plaintiff was born on October 23, 2000. Plaintiff Hiraldo moved out of the aforementioned apartment on September 29, 2000, prior to the birth of the infant plaintiff. On September 28, 2000, plaintiff Hiraldo was found to have a venous lead level of 32 mcg/dL. The infant plaintiff was born with a blood lead concentration level of 25 mcg/dL. Plaintiffs then filed a cause of action against defendant landlord.
Defendant asserts that it cannot be found liable for lead paint violations because there is no evidence that such a hazardous condition existed in the subject apartment. Defendant refers to an inspection conducted by the New York City Department of Health on October 12, 2000, wherein it was determined that there were no elevated lead levels within the apartment. (Defendant's Exhibit E). Defendant also refers to a second inspection of the subject apartment performed by Environmental Management Solutions on November 14, 2000, wherein it concluded that there were no lead levels on any painted surfaces in excess of New York City Department of Health regulatory standards. (Defendant's Exhibit F). Finally, defendant refers to records of violations of the City's Housing Maintenance Code and the state's Multiple Dwelling [*2]Law maintained by the New York Department of Housing Preservation & Development. A search of said records, which go back as far as 1978, indicates that there have never been violations for elevated lead levels in the subject apartment. Accordingly, defendant contends that summary judgment should be granted in its favor with respect to liability.
Defendant further asserts that even if a lead paint condition existed in the subject apartment, it did not have actual or constructive notice that a child under the age of seven resided in the subject apartment and thus summary judgment should be granted in its favor.
Plaintiffs, in opposition, contend that lead-based paint was present in the subject apartment and that the findings of the Department of Health should be disregarded because defendant did not provide any of the underlying data either by laboratory analysis or by x-ray fluorescence (XRF) testing. Plaintiffs contend that without those records, the Department of Health's findings are meaningless. Plaintiffs also assert that defendant had constructive notice that a child under the age of seven resided in plaintiff Hiraldo's apartment and further that courts in New York recognize a cause of action for exposure to lead in utero.
Defendant's contention that no lead-based paint was present in the subject apartment assumes that the level must be 1.0 milligrams of lead per square centimeter or greater to be actionable whereas plaintiffs' contention that there was lead-based paint present in the apartment assumes that the lead level must be 0.7 milligrams of lead per square centimeter or greater.
In support of their position, plaintiffs submit the affidavit of Marc Rutstein, President of Environmental Consulting & Management Services, who on November 14, 2000, was the vice-president of Environmental Management Solutions of New York, Inc. In his affidavit, Mr. Rutstein asserts that on November 14, 2000, he inspected the subject apartment to determine whether lead paint was present. At the time, he relied on Local Law 38 of the City of New York, New York City Code section 27-2056.1(3), which defined "lead-based paint" as "paint or other similar surface coating material containing 1.0 milligram [sic] of lead per square centimeter (mg/cm ) or greater, as determined...by an x-ray fluorescence (XRF) analyzer." (Plaintiff's Exhibit 4, para. 4-6). In his affidavit he asserts that upon his inspection, he determined that there was no lead paint in the subject apartment since there was "no paint or other similar surface coating material containing 1.0 milligram [sic] of lead per square centimeter (mg/cm ) or greater..." (Plaintiff's Exhibit 4, para. 8).
The affidavit of Mr. Rutstein further states that based upon the Court of Appeals case of New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 NY2d 337 (2003) which "revived" Local Law 1 of 1982, New York City Code section 27-2013(h), and declared Local Law 38 null and void, there was one surface area in the subject apartment containing lead-based paint. (Plaintiff's Exhibit 4, para. 9-11). Local Law 1 of 1982 defines "lead-based paint" to mean "paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter." (Plaintiff's Exhibit 4, para. 10). The surface area referred to by Mr. Rutstein was the entry door casing which had a level of 1.31 plus or minus 0.38 of milligrams of [*3]lead per square centimeter. (Plaintiff's Exhibit 4, para. 11). Mr. Rutstein states that as a result of the "revival" of Local Law 1 of 1982, "test site 11" shows "...an XRF reading of 1.31 plus or minus 0.38. With the correction, there is an XRF reading of 0.93 milligrams of lead per square centimeter which is greater than the 0.7 milligrams of lead per square centimeter as required by section 27-2013(h)." (Plaintiff's Exhibit 4, para. 12).
Plaintiffs' reliance on New York City Coalition to End Lead Poisoning v. Vallone, Id., in support of their contention that there was lead-based paint present in the apartment, is misplaced. That case declared Local Law 38 null and void for failure to comply with the State Environmental Quality Review Act (SEQRA) and reinstated Local Law 1 of 1982. However, Local Law 1 of 2004, the Childhood Lead Poisoning Prevention Act was then enacted. See, Community Preservation Corp. v. Miller, 5 Misc 3d 388 (Sup. Ct., NY County, 2004).
Local Law 1 of 2004, New York City Code section 27-2056.1 through 27-2056.18, defines "lead-based paint" as, "paint or other similar surface coating material containing 1.0 milligrams of lead per square centimeter or greater, as determined by laboratory analysis, or by an x-ray fluorescence analyzer...If laboratory analysis is used to determine lead content, results shall be reported in milligrams of lead per square centimeter. Where the surface area of a paint chip sample cannot be accurately measured or if an accurately measured paint chip sample cannot be removed, a laboratory analysis may be reported in percent by weight. In such case, lead-based paint shall mean any paint or other similar surface-coating material containing containing more than 0.5% of metallic lead..." NYC Code §27-2056.2 (7). "
However, Local Law 1 of 2004 is irrelevant to the present cause of action. The relevant period of time in this cause of action is February 10, 1998 to September 29, 2000, the period during which plaintiff Hiraldo resided in the apartment. Because Local Law 1 of 1982 was in effect until November 12, 1999, when Local Law 38 was passed, there is an issue of fact as to defendant's liability. An XRF test indicated that there was at least one area in the apartment where lead-based paint was present. Exhibit E, submitted by defendant, which was the report by the New York City Department of Health, did indicate that there was no lead paint present in the apartment. However, the report makes no mention of whether that determination was made as a result of a laboratory analysis or x-ray fluorescence analyzer.
Defendant further contends that the landlord did not have actual or constructive notice that a child under the age of seven resided in the subject apartment. Assuming, arguendo, that a lead paint condition existed, this court finds that there is a material issue of fact as to whether there was constructive notice to the landlord that a child under the age of seven resided in the apartment. At the time plaintiff Hiraldo moved into the subject apartment, she resided with her other child, then a newborn, named Diana Hiraldo (not the infant plaintiff named in this cause of action). Plaintiffs' Exhibit 7, a letter from the landlord indicates that it knew there was a child, Diana Hiraldo, residing in the aforementioned apartment. Moreover, plaintiffs attached a portion of plaintiff Hiraldo's application to reside in the aforesaid apartment which indicated that she was nine months pregnant. [*4]
Accordingly, defendant's motion for summary judgment is denied.
Movant is directed to serve a copy of this order with notice of entry upon all parties within 30 days of the date of the entry of this order and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated June 26, 2006
J.S.C.
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