Osario v Balram

Osario v Balram 2009 NY Slip Op 03705 [62 AD3d 677] May 5, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 1, 2009

Jordan Osario et al., Respondents,
v
Haymraj Balram et al., Defendants, and Nations Credit Financial Services Corp., Appellant. (And Other Titles.)

—[*1] Stim & Warmuth, P.C., Farmingville, N.Y. (Paula J. Warmuth of counsel), for appellant.

Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S. R. Pagano, and Deborah P. Henkin of counsel), for respondents.

In an action, inter alia, to recover damages for personal injuries, the defendant Nations Credit Financial Services Corp., appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated December 19, 2007, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

The plaintiffs seek to recover damages as a result of injuries allegedly sustained by the infant plaintiff due to lead paint he ingested when he resided in an apartment located in a multiple-dwelling property in Brooklyn that was constructed in 1931.

Contrary to the appellant's contention, the Supreme Court properly denied its motion for summary judgment dismissing the complaint insofar as asserted against it. The appellant "failed to demonstrate its entitlement to judgment as a matter of law as it failed to establish that it was not the 'owner' of the property in question" (Roni v Rahim, 49 AD3d 851, 853 [2008]; see Administrative Code of City of NY §§ 27-2056.3, 27-2056.4).

Moreover, the appellant "offered no evidence that [it was] unaware that a child under the age of seven resided in the [apartment] leased to the infant plaintiff's family and that [it] had no actual [*2]or constructive notice of the alleged existence of peeling paint in [the apartment]" (Jolicoeur v Great Oaks Assoc., Ltd., 43 AD3d 872, 873 [2007]; see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 638 [1996]). Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.