Jocelyn C. v Soundview Apts. Realty, LLC

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Jocelyn C. v Soundview Apts. Realty, LLC 2017 NY Slip Op 07388 Decided on October 24, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2017
Friedman, J.P., Richter, Andrias, Gische, Moulton, JJ.
4764 350615/09

[*1]Jocelyn C., et al., Plaintiffs-Respondents,

v

Soundview Apartments Realty, LLC, Defendant-Appellant, Ward 101 LLC, Defendant.



Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains (Tara C. Fappiano of counsel), for appellant.

Law Office of Neil R. Finkston, Great Neck (Neil R. Finkston of counsel), for respondents.



Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 22, 2016, which, insofar as appealed from, in this action for personal injuries suffered as a result of exposure to lead-based paint, denied the motion of defendant landlord Soundview Apartment Realty, LLC (Soundview) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The court correctly determined that Soundview failed to establish its entitlement to judgment as a matter of law. The record demonstrates that the subject building was constructed before 1960; that Soundview knew that a child younger than six resided in the apartment; and that Soundview had actual notice of a positive lead test in 2006 that it failed to remediate and that resulted in a February 2009 letter alerting it to the fact that the lead condition had not been addressed (see e.g. Rivera v Neighborhood Partnership Hous. Dev. Fund Co. Inc., 116 AD3d 633 [1st Dept 2014]; Rivas v Danza, 68 AD3d 743 [2d Dept 2009]). The conclusion of Soundview's expert that the positive lead paint test was too remote in time to establish proximate cause was insufficient to eliminate any issue of fact. The further conclusion of Soundview's expert that the positive lead paint test was unreliable is disputed by, at the very least, the existence of a 2006 HPD violation.

We have considered Soundview's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 24, 2017

CLERK