Dutcher v Vandeloo

[*1] Dutcher v Vandeloo 2012 NY Slip Op 50210(U) Decided on February 7, 2012 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012
Supreme Court, Albany County

Dalton Dutcher, Plaintiff,

against

Robert M. Vandeloo, CHRISTINA F. VANDELOO and SUPERIOR SALES & SERVICE, INC., Defendants.



7584-08



ATHARI & ASSOCIATES, LLC

Attorneys for Plaintiff

(Mohammed J. Athari, Esq., Of Counsel)

258 Genesee Street, 6th Floor

Utica, New York 13502

HISCOCK & BARCLAY, LLP

Attorneys for Defendants Robert M. Van Deloo and

Christina F. Van Deloo

(Brian D. Casey, Esq., Of Counsel)

80 State Street

Albany, New York 12207-2830

BAILEY, KELLEHER & JOHNSON, P.C.

Attorneys for Defendant Superior Sales & Service, Inc.

(Catherine P. Ham, Esq. and Aaron E. Connor, Of Counsel)

Pine West Plaza 5, Suite 507

Washington Avenue Extension Albany, New York 12205

Michael C. Lynch, J.

From his birth until 2003, plaintiff Dalton Dutcher (hereinafter plaintiff) resided with his mother and siblings in an apartment located at 85 Grant Avenue in the City of Albany, Albany County. In July 1991, when plaintiff was 16 months old, he registered an elevated blood level of 48 micrograms/deciliter (hereinafter mcg/dl), and two blood tests completed one month later revealed lead levels of 37 mcg/dl and 32 mcg/dl, respectively.[FN1] In August 1991, the Albany County Department of Health notified the property owners, Robert and Christina Van Deloo, that a child residing at 85 Grant Avenue had tested positive for lead and, following an inspection of the building, informed the Van Deloos that lead hazards were detected both inside plaintiff's second floor apartment and in the building's common areas. Specifically, the inspection revealed loose and peeling lead paint on the woodwork in all five bedrooms, the window well of the second bedroom, woodwork in the rear hallway/stairs, and woodwork in the front hallway/stairs. Consequently, the Van Deloos were instructed to repair these areas in accordance with the County's recommendations. The Van Deloos timely completed the abatement measures to the satisfaction of the County Health Department, as confirmed by its September 1991 inspection.

In March 2009, plaintiff commenced this action against the Van Deloos and their business, Superior Sales & Service (hereinafter SS & S), seeking to recover damages for the personal injuries he allegedly sustained due to lead paint exposure. Plaintiff's theory of liability as against SS & S is arises from the allegation that SS & S employees assisted the Van Deloos in managing their rental properties. To this end, plaintiff argues that SS & S employees were routinely assigned the responsibility of performing repairs at 85 Grant Avenue.

Issue was joined, discovery has been completed and a trial day certain has been set. The parties now move for various forms of relief. More particularly, plaintiff moves for admission of various records; asks the Court to take judicial notice of certain matters; moves for partial summary judgment on the issue of liability against all defendants; dismissal of many of the affirmative defenses asserted by defendants; preclusion of testimony by defendants' experts, or, in the alternative, a Frye hearing; and sanctions against defendants' counsel. Defendants stipulated to withdraw several affirmative defenses, but opposed the balance of plaintiff's motion. At the same time, SS & S moved for summary judgment seeking dismissal of plaintiff's complaint. Plaintiff opposes SS & S's summary judgment motion. The Court's determinations with respect to defendants' motions in limine and plaintiff's cross-motion will follow in a separate Decision/Order.

DISCUSSION

I.PLAINTIFF'S MOTION SEEKING VARIOUS FORMS OF RELIEF [*2]

A.Plaintiff's Request to Admit Public Records Pursuant to CPLR 4540

Initially, plaintiff requests that the Court admit certified copies of four publications into evidence, namely, a 2002 report issued by the Centers for Disease Control and Prevention entitled "Managing Elevated Blood Lead Levels Among Young Children"; a 2005 report issued by the Centers for Disease Control and Prevention entitled "Preventing Lead Poisoning in Young Children"; a 2006 report issued by the Environmental Protection Agency entitled "Air Quality Criteria for Lead"; and a 2007 report issued by the Agency for Toxic Substances and Disease Registry entitled "Toxicological Profile for Lead" (see Blatt Aff., Exs. B-E). Defendants argue that plaintiff failed to lay a proper foundation for admission because the documents, which exceed 900 pages in length, constitute hearsay and do not have the indicia of reliability of other official records.

It is well established that public records may be self-authenticated through the introduction of certified copies (see CPLR 4540). However, in addition to the authentication requirements provided in CPLR 4540, the Court must consider whether the records are relevant to the action and if they are admissible over a hearsay objection (see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4540:1). Noticeably absent from plaintiff's submission is any argument that the four publications qualify as an exception to the hearsay rule (see CPLR 4518; 4520). Nor does plaintiff's counsel make any showing concerning the relevance of these voluminous documents to the time period at issue, the early 1990s. Further, to the extent that plaintiff's expert, Susan Blatt, relied on these publications in forming her opinion, the Court notes that plaintiff's condition is the subject of an evidentiary dispute, as reflected in the sworn testimony of defendants' experts, David Masur and Walter Molofsky. For the foregoing reasons, plaintiff's motion to admit the public records pursuant to CPLR 4540 is hereby denied, without prejudice to renewal at the time of trial.

B.Plaintiff's Request that the Court Take Judicial Notice of Certain Statutes and Regulations

Next, plaintiff asks the Court to take judicial notice of 42 USC § 4851, which is part of the Residential Lead-Based Paint Hazard Reduction Act; Real Property Law § 235-b, which provides tenants with an implied warranty of habitability; 10 NYCRR part 67 (in its earliest form); and technical reference material (CSS 731) issued by the New York State Department of Health, Bureau of Community Sanitation and Safety. When a Court takes judicial notice of law, it is determining, by an informal means, the law applicable to the case presented (see Barker and Alexander, Evidence in New York State and Federal Courts § 2:9 [2011]). In this regard, CPLR 4511(a) provides:

Every court shall take judicial notice . . . of the common law, constitutions and public statutes of the United States and of every state . . . and of the official compilation of codes, rules and regulations of the state except those that relate solely to the organization or internal management of an agency of the state and of all local laws and county acts.[FN2] [*3]

Here, defendants argue that 42 USC § 4851 and Real Property Law § 235-b are inapplicable to personal injury litigation. To this end, the Van Deloos point to Skerritt v Bach (23 AD3d 1080 [2005]), in which the Appellate Division, Fourth Department concluded that only a purchaser or lessee is within the "zone of interest" protected by the federal statute, not his/her child(ren) (id. at 1081; see 42 USC § 4852d[a][1][A-C]). Stated differently, since plaintiff was a minor at the time he resided at 85 Grant Avenue, "there is no implied private right of action on [his] part"and, therefore, 42 USC § 4851 is inapplicable under the circumstances presented (Skerritt v Bach, 23 AD3d at 1081; see Michaud v Lefferts 750, LLC, 87 AD3d 990, 993 [2011]).

Real Property Law § 235-b is equally inapplicable to this matter because the implied warranty of habitability provided therein was "not intended to provide a basis to recover damages for personal injuries" (Richardson v Simone, 275 AD2d 576, 577 [2000]; see Elkman v Southgate Owners Corp., 233 AD2d 104, 105 [1996] ["personal injuries and pain and suffering are not recoverable under Real Property Law § 235-b"]; Stone v Gordon, 211 AD2d 881, 881 [1995] ["the implied warranty of habitability provisions of Real Property Law § 235-b were not intended to create an alternative remedy to recover damages for personal injuries that are recoverable in a negligence action"]). Accordingly, the Court declines to take judicial notice of 42 USC § 4851 and Real Property Law § 235-b.

Further, defendants object to the Court taking judicial notice of 10 NYCRR part 67 and CSS 731 because plaintiff's counsel attached several versions of the regulations and guidelines to his affidavit and failed to delineate which version(s) effective at the time plaintiff was allegedly exposed to the lead paint hazard (see generally Vega v Molina, 240 AD2d 399, 400 [1997], lv denied 90 NY2d 808 [1997]). Indeed, a careful review of the items submitted by plaintiff revealed that there are at least two different versions of 10 NYCRR part 67 and CSS 731, which controlled during the time period placed at issue in the complaint. Without more, the Court cannot discern which version(s) is applicable to the issues plaintiff intends to present to the jury. Accordingly, at this juncture, the Court declines to take judicial notice of 10 NYCRR part 67 and CSS 731. Plaintiff may renew his motion at the time of trial and the Court will consider the same consistent with the requirements of CPLR 4511.

C.Plaintiff's Motion for Partial Summary Judgment

"Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Currier v Wiltrom Assocs., 250 AD2d 956, 956 [1998] [internal quotation marks and citations omitted]). To obtain summary judgment, a movant must establish his or her position "sufficiently to warrant the court as a matter of law in directing judgment" in his or her favor (Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212[b]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).The failure to make such a showing [*4]mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If, however, a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Turning to plaintiff's first cause of action, "[a] landlord's liability for injuries related to a defective condition including lead paint cannot be established without proof that the landlord had actual or constructive notice of the condition for a sufficient period of time such that the condition should have been corrected" (Cunningham v Anderson, 85 AD3d 1370, 1371 [2011], lv dismissed and denied 17 NY3d 948 [2011], quoting Juarez v Wavecrest Mgmt. Team, 88 NY2d 628, 646 [1996]) (emphasis supplied). Here, plaintiff did not present any evidence that defendants had actual knowledge that paint was chipping or peeling inside his apartment. In fact, the Van Deloos testified that, prior to receiving notice from the Albany County Department of Health in mid-August 1991, they were unaware that any of the rental properties they owned had lead-based paint hazards. Moreover, although dozens of children resided at 85 Grant Avenue from 1970 until 2003, plaintiff was the only child ever diagnosed with lead exposure. Based on this record, the Court finds that there is insufficient evidentiary proof to support plaintiff's allegation that defendants had actual knowledge of the lead-based paint condition (Williamson v Ringuett, 85 AD3d 1427, 1428 [2011]).

Constructive notice of a hazardous, lead-based paint condition may be established by proof "that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (Chapman v Silber, 97 NY2d 9, 15 [2001]; see Williamson v Ringuett, 85 AD3d at 1428). Here, defendants do not dispute that the Van Deloos purchased 85 Grant Avenue in 1970, knew that the building was constructed at or around the turn of the 20th century, were aware of the hazard that lead-based paint presented to young children, and knew that plaintiff's mother had young children with whom she resided in the apartment (see e.g. Williamson v Ringuett, 85 AD3d at 1428). Further, since the Van Deloos and SS & S employees retained a right to enter the premises to collect rent and perform necessary repairs, the only remaining issue is whether plaintiff established that defendants were aware that paint was peeling during the time he resided at 85 Grant Avenue (see e.g. Charette v Santspree, 68 AD3d 1583, 1584 [2009]).

In light of the fact that the results of plaintiff's blood tests and the Albany County Health Department records are unsworn and uncertified, the Court finds them insufficient to support the instant motion for summary judgment (see Thomas v Laustrup, 21 AD3d 688, 690 [2005]). However, plaintiff did present, among other things, examination before trial testimony offered by his mother, Kimberly Dutcher. As relevant here, Dutcher averred that the interior of 85 Grant Avenue was in poor condition throughout the entire 20-year period she resided there. Most significantly, Dutcher recalled chipped paint, cracked windows, and that the ceilings frequently fell down. According to Dutcher, before plaintiff learned to walk, he would ingest paint chips from doors or windowsills while crawling on the floor. However, there is no proof that Dutcher [*5]complained or notified the Van Deloos of these interior conditions until plaintiff registered an elevated blood lead level (see e.g. Charette v Santspree, 68 AD3d at 1584-1585; Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d 176, 181 [2002]). Moreover, since plaintiff failed to present any competent admissible evidence regarding the existence of lead hazards in common areas, his argument that constructive knowledge of the hazards posed by the front and rear hallways and stairs should be imputed to defendants cannot be addressed herein (cf. Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d at 181-183). Given the foregoing, the Court finds that plaintiff failed to sustain his initial burden of demonstrating entitlement to judgment as a matter of law. Thus, plaintiff's motion for partial summary judgment as to the first cause of action must be denied, regardless of the sufficiency of defendants' papers (see Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

In his second cause of action, plaintiff alleges that defendants negligently remediated the hazardous lead condition after they received actual notice from the Albany County Department of Health. In this regard, Dutcher testified that SS & S employees failed to scrape loose and peeling paint before repainting the affected areas with a non-lead based paint. In fact, Dutcher claimed that the surfaces were merely repainted and she further characterized the work performed as a "quickie" job. Dutcher indicated that she raised these concerns with Christina Van Deloo, who maintained that the areas had been adequately sanded. Moreover, Dutcher testified that the workers failed to seal off each room with plastic sheets, and she also recalled observing loose paint chips and dust after the work had been completed.

Remarkably, Robert Van Deloo acknowledged that no one employed by SS & S was qualified to perform lead abatement work, but that, instead of hiring an expert, either he, or an SS & S employee, undertook the task at 85 Grant Avenue. Notwithstanding the foregoing, Robert Van Deloo emphasized that the issues highlighted by the inspector were fully addressed, as evidenced by notification that the Albany County Department of Health deemed the matter resolved. Viewing the evidence in the light most favorable to defendants, the Court finds a triable issue of fact as to the reasonableness of their remediation efforts (see Rivas v Danza, 68 AD3d 743, 745 [2009]; Dixon v City of New York, 33 AD3d 840, 841 [2006]). Accordingly, plaintiff's motion for summary judgment relative to the second cause of action is hereby denied.

D.Plaintiff's Motion to Dismiss Defendants' Affirmative Defenses

With respect to dismissal of defendants' affirmative defenses, plaintiff must establish that they are without merit as a matter of law (see Cunningham v Anderson, 85 AD3d at 1372; Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2011], lv denied and dismissed 17 NY3d 847 [2011]). Since the Van Deloos have already withdrawn the affirmative defenses alleging lack of personal jurisdiction, negligence of third parties, comparative fault, assumption of the risk and statute of limitations, the Court need only be concerned with the defenses alleging the applicability of CPLR article 16 and plaintiff's failure to mitigate damages. Similarly, SS & S withdrew its affirmative defenses alleging lack of personal jurisdiction and failure to state a cause of action; SS & S's remaining affirmative defenses are as follows: statute of limitations, doctrine of laches, comparative negligence, culpable conduct of a third party, failure to mitigate, CPLR article 16, intervening or superseding cause, assumption of risk, failure to name a [*6]necessary party and failure to properly name a defendant.

" In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference'" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d at 882, quoting Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]). " If there is any doubt as to the availability of a defense, it should not be dismissed'" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d at 882, quoting Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008]). In support of the motion, plaintiff's counsel averred:

The affirmative defenses enumerated in plaintiff's notice of motion are all disingenuous and should be immediately dismissed with costs. Plaintiff has presented all the parties depositions and the defendants have no personal knowledge of any of these affirmative defenses. Defendants must now present proof that these Affirmative Defenses are viable.

(Athari Aff., ¶6) (emphasis in original).

Simply stated, plaintiff failed to demonstrate that defendants could not prevail upon the overwhelming majority of their affirmative defenses because he never advanced an argument with regard to them. For this reason, the Court finds that plaintiff did not meet his burden of establishing that the following affirmative defenses are without merit as a matter of law: CPLR article 16, statute of limitations, doctrine of laches, culpable conduct of a third party, intervening or superseding cause, failure to name a necessary party, and failure to properly name a defendant (see Family-Friendly Media, Inc. v Recorder Tel. Network, 74 AD3d 738, 739 [2010]). Nevertheless, the Court recognizes that "laches is a purely equitable defense which may not be interposed in an action at law" (Brown v Lockwood, 76 AD2d 721, 729 [1980]). Since the remedy plaintiff seeks herein is not equitable in nature, dismissal of SS & S's second affirmative defense is warranted (see Fade v Pugliani/Fade, 8 AD3d 612, 614-615 [2005]; Matter of County of Rockland v Homicki, 227 AD2d 477, 478 [1996]).

As to defendants' affirmative defense alleging a failure to mitigate his damages, plaintiff has not offered any evidence in support of dismissal, merely relying on his tender age at the time of exposure to the lead hazard present at 85 Grant Avenue. "While the law may absolve very young children of all liability for their actions as a matter of law, [the Appellate Division, Third Department has] reject[ed] plaintiff's broad assertion that individuals less than 18 years of age can never be held legally responsible for their actions through defenses such as contributory negligence or failure to mitigate damages" (Cunningham v Anderson, 85 AD3d at 1372 [internal citations omitted]). Here, plaintiff's conduct when he was a preteen and teenager, including poor school attendance, discontinuance of prescribed ADHD medication, the decision to drop out of high school in 10th grade, and failure to obtain gainful employment, may constitute a failure to mitigate damages at a time when he could be held legally responsible for his actions (see e.g. Cunningham v Anderson, 85 AD3d at 1372 ). Accordingly, the Court elects to limit, but does not dismiss, defendants' failure to mitigate damages affirmative defense by precluding it for any time during which plaintiff resided at 85 Grant Avenue (see e.g. Cunningham v Anderson, 85 AD3d at 1372).

Contrary to plaintiff's contention, SS & S's comparative negligence and assumption of the risk affirmative defenses are similarly based on his conduct; they are not based on negligent [*7]supervision on the part of plaintiff's mother, which would render the defenses improper (see Cunningham v Anderson, 66 AD3d 1207, 1208 [2009], lv denied 14 NY3d 710 [2010]; M.F. v Delaney, 37 AD3d 1103, 1105 [2007]; Christopher M. v Pyle, 34 AD3d 1286, 1287 [2006]). Accordingly, as above, the Court shall limit, but not dismiss, SS & S's affirmative defenses of comparative negligence and assumption of the risk by precluding them for any time during which plaintiff resided at 85 Grant Avenue (see e.g. Cunningham v Anderson, 85 AD3d at 1372-1373).

E.Plaintiff's Motion to Preclude the Testimony of Defendants' Experts, or, Alternatively, that the Court Conduct a Frye Hearing

Next, plaintiff seeks an order precluding defendants from presenting expert testimony regarding the issue of causation, namely the significance of social, economic and genetic factors, on the basis of speculation and surmise. "To be properly admitted, expert opinion evidence must generally be based upon facts either found in the record, personally known to the witness, derived from a professionally reliable' source or from a witness subject to cross-examination" (McAuliffe v McAuliffe, 70 AD3d 1129, 1132 [2010], quoting Brown v County of Albany, 271 AD2d 819, 820 [2000], lv denied 95 NY2d 767 [2000]). A challenge to the foundation of an expert's testimony focuses on the "specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial" (Jackson v Nutmeg Tech., Inc., 43 AD3d 599, 601 [2007]).

Moreover, where a party challenges the "credibility of the opinions of . . . [an] expert and not the reliability of novel scientific evidence presented," a Frye hearing is not required (Page v Marusich, 51 AD3d 1201, 1203 [2008]). Here, plaintiff does not meaningfully challenge the admissibility of defendants' experts opinions; rather, the thrust of his objection is on the weight and reliability they should be accorded (see e.g. Ellis v Eng, 70 AD3d 887, 892 [2010]). To illustrate, plaintiff's experts opine that his diminished cognitive and behavioral functioning is casually linked to elevated blood lead levels during childhood (see Lopez-Williams Aff., Ex. B, at p. 10; Blatt Aff., ¶12). In contrast, defendants' experts, each of whom performed an independent medical examination, opine that plaintiff's cognitive deficiencies and psychiatric disorders were caused by other factors, including the social and environmental circumstances of his upbringing, and are representative of his innate abilities (see Masur Aff., Ex. A, at p. 6-7; Molofsky Aff., Ex. A, at p. 4). Since the experts' conclusions essentially reflect an intellectual disagreement regarding the cause of plaintiff's cognitive and behavioral deficits, not the scientific methodology or technique employed in reaching those conclusions, the Court finds that neither preclusion of defendants' expert testimony, nor a Frye hearing is warranted (see Page v Marusich, 51 AD3d at 1203; see also Ellis v Eng, 70 AD3d at 892).

As to plaintiff's request for an order precluding proof of his criminal history, the Court notes that CPLR 4513 permits cross-examination concerning prior criminal convictions and the facts underlying the convictions (see Frank v McCutcheon, 29 AD3d 470, 470 [2006]; Pope v New York City Tr. Auth., 244 AD2d 263, 264 [1997]; Lancaster v Doctor's Hosp., 222 AD2d 301, 301 [1995]). Accordingly, to the extent defendants' attorneys wish to cross-examine plaintiff regarding his prior criminal convictions, including the recent conviction for attempted burglary in the third degree, they may do so as set forth in CPLR 4513.

F.Plaintiff's Motion for Sanctions Against Defendants' Counsel

Finally, plaintiff asserts that the Court should impose sanctions against defendants' counsel for supporting their arguments with "fraudulent expert testimony," as well as against the Van Deloos individually for espousing a "disingenuous defense" (Athari Reply Aff., at ¶¶14, 18-19). Notably, plaintiff's request for sanctions was improperly raised for the first time in his reply papers. However, since defendants' counsel was granted an opportunity to file a surreply in response to plaintiff's allegations of frivolous conduct, the Court will briefly address the merits of the request.

It is well established that sanctions may be awarded for taking legal actions which are completely without merit in law, are undertaken primarily to delay the resolution of the litigation, or assert false material statements of fact (see 22 NYCRR 130-1.1[c]). Put simply, that level of misconduct has not been demonstrated here. To the extent the Court determined that it is permissible for defendants to offer expert testimony regarding the issue of causation, plaintiff's first basis for sanctions in unwarranted. Further, a careful reading of the testimony contained in the Van Deloos' affidavits and deposition transcripts did not strike the Court as incredible. In any event, this matter is more appropriately left to the fact finder, who will have the opportunity to assess both the parties' testimony and their demeanor at the time of trial. For the foregoing reasons, the Court declines to impose sanctions against defendants' counsel or the Van Deloos individually.

II.SUPERIOR SALES & SERVICE'S MOTION FOR SUMMARY JUDGMENT

Initially, SS & S argues that it neither had an ownership interest in 85 Grant Avenue, nor any control over the property because the Van Deloos kept their rental properties separate from SS & S business. SS & S further argues that, irrespective of the alleged lack of ownership and control, plaintiff's first cause of action fails due to a lack of notice (actual or constructive) of any lead-based hazards at the property. Finally, SS & S claims that there is a dearth of evidence to support plaintiff's second cause of action for negligent abatement because the Albany County Health Department approved of the measures taken by the Van Deloos to remediate the hazard.

" [L]iability for an injury caused by a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property [and] [w]here none is present, a party cannot be held liable'" (Gadani v Dormitory Auth. of State of NY, 64 AD3d 1098, 1102 [2009], quoting Seymour v David W. Mapes, Inc., 22 AD3d 1012, 1013 [2005]). Inasmuch as the deed reflects that 85 Grant Avenue is owned by Robert and Christina Van Deloo, it is quite clear that SS & S does not have an ownership interest in the property (see Connor Aff., Ex M). Likewise, neither plaintiff, nor SS & S disputes that Dutcher occupied the property during the time period at issue, thereby leaving the matter of control for the Court's consideration.

To this end, SS & S offered Robert Van Deloo's testimony, which demonstrates that all rental income was deposited into a bank account separate from that of SS & S, a separate tax return was filed for each rental property, and the Albany County Department of Health's correspondence were addressed to Robert Van Deloo individually. In opposition, however, plaintiff presented proof that SS & S assisted with the management of the Van Deloo's rental [*8]properties from the mid-1980s to the late-1990s. Specifically, the record reflects that individuals employed by SS & S routinely assisted the Van Deloos with repairs and maintenance at 85 Grant Avenue, such as roof leaks, plumbing and painting, and performed the abatement work. Based on this evidence, the Court finds that plaintiff raised a triable issue of fact as to whether SS & S truly lacked control over 85 Grant Avenue.

With regard to SS & S's second argument, defendants wholly deny that they had actual or constructive notice of the lead-based paint hazard and, as noted above, there is no evidence that Dutcher complained or notified the Van Deloos about any such condition prior to the Albany County Department of Health investigation. While the evidence submitted by defendants is sufficient to establish that SS & S had no actual knowledge of the lead hazard, Robert Van Deloo's deposition testimony is exceptionally vague with respect to his observations of the paint both inside Dutcher's apartment and in common areas (see e.g. Williamson v Ringuett, 85 AD3d at 1429). In contrast, Dutcher quite specifically testified that she recalled chipped paint originating from doors and windowsills. Moreover, both Robert and Christina Van Deloo, SS & S's sole shareholders, acknowledged that, during the time Dutcher resided at 85 Grant Avenue, they would regularly enter the building to perform repairs and collect rent. Viewing the evidence in the light most favorable to plaintiff and affording him the benefit of every favorable inference, the Court finds a triable issue of fact as to whether SS & S had constructive notice of a lead-based paint hazard at 85 Grant Avenue.

Finally, irrespective of the Albany County Department of Health's approval of the measures taken by defendants to remediate the lead hazard, a question of fact remains as to the reasonableness of their efforts. As discussed above, Dutcher testified that SS & S employees failed to scrape loose and peeling paint before repainting the affected areas with a non-lead-based paint. In fact, Dutcher claimed that the surfaces were merely repainted and workers opted not to seal off each room with plastic sheets. Moreover, Robert Van Deloo acknowledged that no one employed by SS & S possessed the qualifications necessary to perform lead abatement work. Given the foregoing, SS & S's motion for summary judgment is hereby denied.

Accordingly, it is hereby ORDERED that plaintiff's motion to admit public records is hereby denied, without prejudice to renewal at the time of trial; and it is further

ORDERED that plaintiff's motion requesting that the Court take judicial notice of certain statutes and regulations is hereby denied; and it is further

ORDERED that plaintiff's motion for summary judgment is hereby denied in its entirety; and it is further

ORDERED that plaintiff's motion to dismiss defendants' affirmative defenses is denied in part, and granted in part (relative to Superior Sales & Service's laches defense); and it is further

ORDERED that plaintiff's motion to preclude defendants' expert testimony, or, in the alternative, for a Frye hearing is hereby denied; and it is further

ORDERED that plaintiff's motion for sanctions against defendants' counsel and the Van Deloos individually is hereby denied; and it is further

ORDERED that defendant Superior Sales & Service's motion for summary judgment is hereby denied in its entirety.

This represents the Decision/Order of this Court. This original Decision/Order is being [*9]mailed to the Attorneys for Defendants Robert and Christina Van Deloo. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision/Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

DATED: February 7, 2012

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Notice of Motion by Plaintiff, dated July 6, 2011; Affirmation of Mohammed J. Athari, Esq., dated July 6, 2011, with annexed exhibits; Affirmation of Susan Blatt, M.D. in Support, dated July 6, 2011, with annexed exhibits; Affidavit of Andy Lopez-Williams, Ph.D., sworn to July 6, 2011, with annexed exhibits; Memorandum of Law in Support, dated July 6, 2011;

2.Notice of Motion for Summary Judgment by Defendant Superior Sales & Service, Inc., dated July 18, 2011; Affidavit of Aaron E. Connor, Esq. in Support, sworn to July 18, 2011, with annexed exhibits; Memorandum of Law in Support, dated July 18, 2011;

3.Affidavit of Robert M. Van Deloo in Opposition to Plaintiff's Motion for Summary Judgment, sworn to July 27, 2011, with annexed exhibits; Affidavit of Christina F. Van Deloo in Opposition to Plaintiff's Motion for Summary Judgment, sworn to July 27, 2011, with annexed exhibits; Affirmation of Brian D. Casey, Esq. in Opposition to Plaintiff's Motion in Limine and Motion for Summary Judgment, dated August 11, 2011; Memorandum of Law in Opposition, dated August 11, 2011;

4.Affirmation of Mohammed J. Athari, Esq. in Opposition to Superior Sales & Service's Motion, dated August 8, 2011, with annexed exhibits;

5.Affidavit of Catherine P. Ham, Esq. in Opposition, dated August 10, 2011; Affirmation of Walter J. Molofsky, M.D., dated August 8, 2010, with annexed exhibit; Affidavit of David Masur, Ph.D., sworn to August 10, 2011, with annexed exhibit; Memorandum of Law in Opposition, dated August 10, 2011; [*10]

6.Reply Affirmation of Mohammed J. Athari, Esq. in Further Support and in Opposition to Superior Sales & Service's Motion, dated August 15, 2011, with annexed exhibit;

7.Affirmation of Brian D. Casey, Esq. in Opposition, Reply and Surreply (with leave of the Court), dated September 8, 2011, with annexed exhibits;

8.Reply Affidavit of Catherine P. Ham Esq. in Further Support of Superior Sales & Service's Motion, sworn to September 9, 2011, with annexed exhibit; and

8.Final Reply Affirmation of Mohammed J. Athari, Esq. in Further Support, dated September 16, 2011 Footnotes

Footnote 1: An elevated lead level is "a blood lead level greater than or equal to [10 mcg/dl] of whole blood" (Public Health Law § 1370(6); see also 10 NYCRR 67-1.1[e]).

Footnote 2: In his papers, plaintiff erroneously cited CPLR 4513 — Competency of a Person Convicted of Crime — as the basis for his judicial notice request. The Court shall overlook this error and consider the relief sought by plaintiff under the proper provision, CPLR 4511 — Judicial Notice of Law.