Moye v Giambra

Moye v Giambra 2015 NY Slip Op 01100 Decided on February 6, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 6, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND DEJOSEPH, JJ.
1363 CA 14-00842

[*1]TAKISHA MOYE, PLAINTIFF-APPELLANT,

v

JOEL A. GIAMBRA AND MICHELLE M. GIAMBRA, DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered February 10, 2014 in a personal injury action. The order, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.

ATHARI & ASSOCIATES, LLC, NEW HARTFORD (MO ATHARI OF COUNSEL), FOR PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, BUFFALO (RYAN C. MAHONEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained as a result of her exposure to lead paint as a child in an apartment in which she resided. The complaint alleges two causes of action against defendants, the landlords of the subject property, i.e., negligent ownership and maintenance of the premises, and negligent abatement of the lead paint hazards. Plaintiff moved for, inter alia, partial summary judgment on the "issues of liability (notice, negligence and substantial factor)," and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court properly granted the cross motion. "In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so" (Spain v Holl, 115 AD3d 1368, 1369; see Pagan v Rafter, 107 AD3d 1505, 1506; see generally Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646). We agree with defendants that they met their burden on the cross motion with respect to the cause of action for negligent ownership and maintenance of the premises by establishing that they did not have actual or constructive notice of the hazardous lead paint condition, and plaintiff failed to raise a triable issue of fact (see Spain, 115 AD3d at 1369; see generally Chapman v Silber, 97 NY2d 9, 15). We further agree with defendants that they met their burden with respect to the negligent abatement cause of action by establishing that they abated the lead paint hazard in a reasonable manner, and plaintiff failed to raise a triable issue of fact (cf. Pagan, 107 AD3d at 1506-1507).

In view of our determination, we do not address plaintiff's remaining contentions.

Entered: February 6, 2015

Frances E. Cafarell

Clerk of the Court