Ortiz v Joremi Enters., Inc.

[*1] Ortiz v Joremi Enters., Inc. 2009 NY Slip Op 50454(U) [22 Misc 3d 1135(A)] Decided on March 13, 2009 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through April 6, 2009; it will not be published in the printed Official Reports.

Decided on March 13, 2009
Supreme Court, Bronx County

Maryann Ortiz, By her Father and Natural Guardian, RAYMOND ORTIZ, Plaintiff,

against

Joremi Enterprises, Inc., and LANGSAM PROPERTY SERVICES CORP., Defendants.



16711/2005

George D. Salerno, J.

Plaintiff moves for summary judgment on the issue of liability in this action to recover damages for alleged lead paint poisoning sustained by MARYANN ORTIZ, who resided at premises owned by Defendant, LANGSAM PROPERTY SERVICES CORP., and managed by Defendant JOREMI ENTERPRISES, INC., located at 227 East Mosholu Parkway North, Apt. 6K, Bronx, NY.

It is well-established that the following are:"the standards to establish liability for lead paint in a New York building, to wit: (1) the building was constructed prior to 1960; (2) the landlord had actual and/or constructive notice of the presence of a child of six years of age or under; (3) that the defendants failed to take reasonable measures to alleviate lead contamination upon which it had notice; and (4) the lead paint condition complained of was the proximate cause of the claimed poisoning."

Melo-Perez v. 602 W. 146th St. Assoc.,11 Misc 3d 1089A, 2006 NY Slip. Op. 50781U, 2 (NY Sup. Ct. 2006). Juarez by Juarez v. Wavecrest Mgmt. Team, 88 NY2d 628 (1996).

Where "triable issues exist regarding defendant's constructive notice of the hazard, the reasonableness of abatement efforts or causation," summary judgment will be denied. Juarez, supra, 88 NY2d at 638.

NOTICE: "It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected (see, e.g., Piacquadio v Recine Realty Corp., 84 NY2d 967, 969; Worth Distribs. v Latham, 59 NY2d at 238, supra; see also, [*2]Putnam v Stout, 38 NY2d at 612, supra)."

Juarez, supra, 88 NY2d at 646.

As far as constructive notice, in the seminal Juarez case, the Court of Appeals held that: "Local Law 1 ... establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition (see, Administrative Code § 27-2013 [h] [2])[FN1]. ... the right of entry conferred by Local Law 1 gives a landlord constructive notice of any lead paint hazard within an apartment that the landlord knows is occupied by a child of the specified age." Juarez, supra, 88 NY2d at 647.

In the case at bar, it is not strenuously disputed that the building where Plaintiff resided was constructed prior to 1960 [FN2], or that a child 6 years or under resided in the apartment.[FN3] Plaintiff, MARYANN ORTIZ, born September 1995, alleges that she resided at the subject premises until sometime in 2006.[FN4]

However, assuming that Defendants "had the requisite notice of the residency of the infant and a lead paint hazard exists in the apartment [FN5], the [*3]landlord's liability then turns on the reasonableness of its efforts to remedy the lead condition (Juarez, 88 NY2d at 644). In addition, the plaintiff must demonstrate that the child's lead poisoning is connected to the dangerous lead paint condition in the subject apartment (id. at 648)." [emphasis added] Barker v. 155 E. 51st St., LLC, 18 Misc 3d 1110A, 2007 NY Slip. Op. 52486U, 7 (NY Sup. Ct. 2007).

"Breach of a landlord's general statutory duty to maintain leased premises in a safe condition, moreover, does not impose liability without fault, but requires a showing of those elements comprising common-law negligence." Juarez, supra, 88 NY2d at 646. It is axiomatic that, "in order to set forth a prima facie case of negligence, plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty and an injury suffered by the plaintiff which was proximately caused by the breach. Derdiarian v. Felix Construction Corp., 51 NY2d 308 (1980); Murray v. NYCHA, 269 AD2d 288 (1st Dept. 2000)." [emphasis added] In re Miguel Ramirez, 2003 NY Slip. Op. 50950U, 6-7 (NY Sup. Ct. Apr. 1, 2003).

REASONABLENESS STANDARD:

The Court of Appeals, in Juarez, clearly flatly rejected the: "plaintiffs' argument that violation of Local Law 1 results in absolute liability, under which "[n]o excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability" (Prosser and Keeton, Torts § 36, at 227 [5th ed]). ...While Local Law 1 is unquestionably intended to protect a definite class of persons from a particular hazard they are incapable of avoiding themselves, examination of the Administrative Code provisions at issue does not reveal an intent to impose liability without regard to fault (see, Trimarco v Klein, 56 NY2d 98, 108; Van Gaasbeck v Webatuck Cent. School Dist., 21 NY2d 239, 244). Indeed, Local Law 1 does not itself create an additional standard of care. Rather, Local Law 1 defines a particular hazardous conditionthe presence [*4]of specified levels of lead-based paint in an apartment occupied by a child six years of age or underto which a landlord's general duty to repair applies. That is, Local Law 1 simply obligates landlords to remedy a specific dangerous defect. ...

Consequently, we agree with the Appellate Division that Local Law 1 imposes "a standard of reasonableness" that allows a landlord to "persuade the fact finder that the existence of a lead paint hazard existed despite his diligent and reasonable efforts to prevent it" (212 AD2d 38, 48) ([some] emphasis in original). Local Law 1 places a duty on landlords to abate a lead hazard. Where, however, a landlord establishes that it exercised due care, it will not be held liable. To avoid liability, a landlord must prove that, even though it violated Local Law 1, it was acting reasonably under the circumstances. That liability turns on the reasonableness of a landlord's efforts to ameliorate or prevent a dangerous lead condition is supported by the regulatory scheme. ... It has long been the rule in this State that a regulation of an administrative agency is merely some evidence to be considered on the question of a defendant's negligence (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522; Major v Waverly & Ogden, 7 NY2d 332, 336; Schumer v Caplin, 241 NY 346). It follows, then, that the adequacy of a landlord's efforts to discharge its duty to remedy a hazardous lead condition is to be governed by a standard of reasonableness. ... our conclusion [is] that the particular Administrative Code provision before us incorporates a standard of reasonableness." [emphasis added]

Juarez, supra, 88 NY2d at 646.

Consequently, in the case at bar, under the "standard of reasonableness", Defendants should be allowed to present to the fact-finder, at trial, their evidence that they made reasonable efforts to prevent a lead-paint hazard. By her testimony, Defendant's property manager, Ms. Linda Hernandez, employed continuously since October 1996, demonstrates that Defendants performed their duties to maintain the subject premises.[FN6] Prior to the subject apartment being occupied by the Ortiz family, in about March 1995, a painting contractor scraped [*5]and plastered the vacant apartment.[FN7] Mr. Ortiz admitted that his entire apartment would be given a full paint job about every three years; admitting that: "whenever [he] complained, they [Defendants] looked at the problem and they come, they make proper arrangements". (Ortiz EBT, p. 15, 17).

In January 1997, within a day or two of receiving a complaint from the Plaintiff's household, Ms. Linda Hernandez personally inspected the premises, and issued a work order for the contractor to correct the problems, namely to: "repair the cracks on the ...wall and repair peeling paint on the windowsills, and ... to plaster and paint the apartment completely. They were due for a three-year cycle."[FN8] This work was promptly completed on January 24, 1997, within 2 or 3 days of when the work order was issued. (Defendants' EBT by Linda Hernandez, p. 13-17, 21-23, 28-29). Plaintiff Ortiz acknowledge that, upon his notifying Ms. Linda Hernandez of his complaints, she personally investigated, and hired contractors, who corrected the conditions by plastering and painting. (Ortiz EBT, p. 10-13).After "quite sometime passed", in 1999, Mr. Ortiz noticed changes and complained to Ms. Hernandez; who again promptly inspected, and made the "proper arrangements" to have a contractor scrape, plaster, and paint the apartment. (Defendants' EBT by Hernandez, p. 21, 27. Ortiz EBT, p. 13-15).In 2004, after a three-year cycle paint job on the apartment, Defendants ordered a comprehensive dust-swipe testing, which showed only one positive area by the living room windowsill [FN9]; and the painting contractor was instructed to correct this condition. (Defendants' EBT by Hernandez, p. 33-42). Plaintiff Mr. Ortiz acknowledged that the Defendants' contractor removed and replaced the subject windowsill in the living room area. (Ortiz EBT, p. 16, 18).

In a recent case having similarities to the case at bar, the First Department, [*6]citing Juarez, reiterated the principal that: "a landlord may prove that even if it violated Local Law No. 1, it will not be liable for damages sustained as a result of that violation if it exercised due care and acted reasonably under the circumstances ... A landlord's code-imposed liability, therefore, may be relieved ...by such efforts on its part." Rivas v. 1340 Hudson Realty Corp., 234 AD2d 132, 136 (1st Dept. 1996). In Rivas, however, "unlike Juarez, where the landlord did not contest the presence of a lead hazard or allege that it had made lead abatement efforts, the defendant ...presented evidence regarding its efforts to renovate the premises generally; its efforts to abate the lead hazard in [the subject] apartment 62 specifically; and prior efforts (by the 7A Administrator or the previous owner) to address the lead paint problem identified elsewhere in the building"; and the Court held that the jury should have been allowed to consider such evidence to determine if the defendant acted reasonably under the circumstances. Rivas, supra, 234 AD2d at 136.

Likewise, in the case at bar, Defendants regularly painted, scraped, and plastered; personally inspected Plaintiff's complaints, and made "proper arrangements" to correct every problem; and even initiated tests for the presence of lead. Consequently, triable issues of fact exists as to whether the Defendants took reasonable efforts to prevent a dangerous lead-paint condition. O'Neal v. NY City Hous. Auth., 4 AD3d 348, 349 (2d Dept. 2004).

In another very recent case, the First Department dismissed plaintiff's complaint, stating that: "even assuming defendant had notice of plaintiffs' residency and the hazardous condition identified by the Department of Health, it exercised due care by abating such hazardous condition within the mandated compliance period." Matter of Vega v. New York City Hous. Auth., 52 AD3d 294 (1st Dept. June 2008).

The Miller case, cited by Plaintiff to support her position, is distinguishable since there the Court found that "defendants' cursory inspections of the apartment, which did not include any tests for the presence of lead, and their belated and inadequate attempts to abate the lead-based paint condition did not meet the standard of reasonableness." Miller v. 135 Realty Assocs., L.P., 266 AD2d 112, 113 (1st Dept. 1999)." Miller is also distinguishable, since the Court held that: "the lead-based paint condition was established as the proximate cause of the injuries suffered by the infant plaintiff." Miller, supra, 266 AD2d at 113.

PROXIMATE CAUSE:

In the case at bar, Plaintiff failed to make a proper showing that this child's [*7]present health problems were caused by exposure to any lead conditions in the subject apartment. See Juarez, supra, 88 NY2d at 646-8. See Barker, supra, 18 Misc 3d 1110A. See Derdiarian, supra, 51 NY2d 308; Murray, supra. See In re Miguel Ramirez, supra, 2003 NY Slip. Op. 50950U.

The Court of Appeals clearly held as follows: "We conclude that, even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and claimed injury such as a gap in treatment, an intervening medical problem or a preexisting condition summary dismissal of the complaint may be appropriate." Pommells v. Perez, 4 NY3d 566, 572 (2005).

In attempting to address causation, Plaintiff herein merely submits the evaluation of an expert psychologist who saw MARYANN ORTIZ "in June 2006", when she was ten years old but he does not state if he saw MARYANN ORTIZ on more than one isolated occasion. (See Affidavit of Louis Zimmer, Ph.D., dated August 3, 2007).

Significantly, Zimmer provided no psychological, or medical, treatment. Further, Zimmer does not describe the "neuropsychological" tests that he performed, and it is not known whether such tests were objective or subjective.

As far as the blood-test results, Zimmer conveys that they refer to the period of time when MARYANN ORTIZ was age two and three which was about eight (8) years prior to his meeting with her. Without reference to the facility where they were taken, Zimmer vaguely relates that two tests showed lead-levels of 16 mcg/dl, and one test showed a lead-level of 18 mcg/dl. [FN10] However, a copy of those same tests was not provided to the Court; and, moreover, no certified copy of laboratory reports were provided to substantiate Plaintiff's claims of an elevated blood lead-level.[FN11] Furthermore, Zimmer's recount is not consistent with the [*8]correspondence from the City of New York which states that no intervention by the City of New York was necessary because MARYANN ORTIZ's blood lead-level did not equal, or exceed, 15 micrograms per deciliter. (See Correspondence by the City of New York, Dept. of Health, dated Feb. 8, 2005, at Plaintiff's own Exhibit "F"). Plaintiff fails to present an Affidavit, or certified medical records, from the doctors who ordered the subject blood tests or who treated MARYANN ORTIZ contemporaneously therewith and does not explain the failure to do so.

Zimmer does not specify, exactly, which medical records he reviewed, or explain how he who is not a medical doctor would be qualified to interpret them or give an opinion that other factors in MARYANN ORTIZ's "medical" history could not cause the conditions that he diagnosed. In a cursory fashion, Zimmer mentions records from Lincoln Medical Center and Sound View Throgs Neck Community Medical Center, where the child was treated with "counseling and medication", but he does not state the dates when the child received treatment. Moreover, Zimmer does not explain what treatment the child received, or the purported diagnosis or prognosis given by her treating doctors. Although Zimmer states that the child's medications include Metadate and Straterra, he does not discuss the other medications she takes, or their side effects.

Regarding her medical treatment, Plaintiff without explanation fails to provide an Affidavit from MARYANN ORTIZ's treating doctors, or certified medical records, to evidence what treatment the child received, for which ailments, and when.

Mr. Ortiz acknowledged that MARYANN ORTIZ has chronic asthma, and is treated at an asthma clinic. As a result of asthma attacks, the child was hospitalized and almost died once, he states: "I almost lost her". (Ortiz EBT, p. 27-28). It is noted that Plaintiff's submission includes a handwritten "medical intake form" where "asthma" is the only ailment listed under "illnesses". (See Plaintiff's Exhibit "F"). Inexplicably, Zimmer fails to address MARYANN ORTIZ's asthma.

Given the paucity of medical proof, as well as the number of years, and intervening factors, between the alleged lead exposure and the time when the child was examined by the expert psychologist, there remain questions of fact as to whether MARYANN ORTIZ's present claimed deficits were caused by the alleged [*9]minimal (and unsubstantiated) lead exposure as an infant or by other intervening medical conditions, problems, and medications such as asthma, resulting hypoxia, and the corticosteroids and plethora of other medications prescribed to treat her various ailments.[FN12]

Managing Agent:

As to the managing agent, Defendant, JOREMI ENTERPRISE, INC., it is also noted that Plaintiff fails to sustain its burden to show that JOREMI had exclusive control of the operations of the building. A "managing agent of the building in which [a] plaintiff [is] injured ... could be subject to liability for nonfeasance only if it were in complete and exclusive control of the management and operation of the building." Ioannidou v. Kingswood Management Corp., 203 AD2d 248, 249 (2d Dept. 1994). Keo v. Kimball Brooklands Corp., 189 AD2d 679 (1st Dept. 1993).

As the proponent of the motion for summary judgment, Plaintiff was required to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. Plaintiff's failure to do so herein requires denial of the motion, regardless of the sufficiency of the opposing papers.[FN13]

Under the circumstances, and based upon the deficient papers submitted herein, Plaintiff's motion is denied. This constitutes the decision and order of this Court. [*10]

Dated: March 13, 2009

_____________________________

George D. Salerno, JSC Footnotes

Footnote 1: The history of "Local Law 1" (formerly Administrative Code 27-2013[h]) included that it was adopted by the NY City Council in 1982. The City Counsel replaced it, in 1999, with "Local Law 38", which was less stringent. In 2003, the Court of Appeals vacated "Local Law 38" and effectively reinstated "Local Law 1", now set forth in Administrative Code 27-2056, et seq. See NY City Coalition to End Lead Poisoning v. Vellone, 100 NY2d 337 (2003).

Footnote 2: (Defendants' EBT by Hernandez, p. 8).

Footnote 3: Plaintiff, MARYANN ORTIZ, herself, was not yet born, in April 1995, at the time of the commencement of her mother's tenancy in the subject apartment. However, in the application for tenancy, made in December 1994, two of her siblings, who were under age six, were listed as persons who would be occupying the apartment. (Plaintiff's Exhibit "B"). Defendant's building manager did not recall the exact ages of the children. (Defendants' EBT by Hernandez, p. 10-11).

Footnote 4: The date in 2006 when Plaintiff moved out is not known. (See Aff by Plaintiff's Counsel David Holzberg, p. 5).

Footnote 5: NYC Administrative Code § 27-2056.5 provides that: "in any multiple dwelling erected prior to January 1, 1960, it shall be presumed that the paint or other similar surface-coating material in any dwelling unit where a child of applicable age resides or in the common areas is lead-based paint. The presumption established by this section may be rebutted by the owner."

Footnote 6: Ms. Linda Hernandez testified, for example, that she, regularly, inspected the building: performing "walk-throughs" and examining interior areas. Also, professionals such as architects and roofers were employed to make inspections. (Defendants' EBT by Linda Hernandez, p. 5, 23, 32).

Footnote 7: (Defendants' EBT by Linda Hernandez, p.45-47).

Footnote 8: Also, "brick pointing was done on the building", to prevent moisture from leaking into the apartment. (Defendants' EBT, by Hernandez, p. 23-24, 31-32).

Footnote 9: (See Report by a private company, Lead Investigation Inc., at Plaintiff's Exhibit "D"). This test was voluntarily obtained by Defendants themselves. It is not disputed that there was no testing or intervention done by the City of New York because the child's blood lead level did not equal, or exceed, 15 micrograms per deciliter. (See Correspondence by the City of NY, Dept. of Health, dated Feb. 8, 2005, at Plaintiff's Exhibit "F").

Footnote 10: (See Affidavit of Louis Zimmer, Ph.d., dated August 3, 2007).

Footnote 11: Plaintiff merely provides some uncertified and unsworn loose papers: One page purports to be a blood test from Lincoln Medical Center, dated May 1998, with a result of "14" "ug/dl"; and one purports to be from Montefiore Medical Center, dated December 1998, with a result of "15" "ug/dl". Another, dated September 1997, ostensibly shows a result of "16", but this is especially unreliable since it does not even have a heading indicating what facility it comes from. Another mysterious page from an unknown facility seems to list some blood-drawn dates, but there is no explanation as to what the information on this document is supposed to mean and this Court should not be left to guess. (See Plaintiff's Exhibit "F").

Footnote 12: This is discussed by Defendants' experts, and is not addressed or disputed by Plaintiff. To treat her asthma, MARYANN ORTIZ takes potent medications such as: Zyrtec, Flovent, Singulair, Albuterol, Prednisone, and corticosteroids (See Reports by Carmen Inoa Vazquez, Psychologist, dated March 27, 2007; and Walter Molofsy, M.D., dated June 22, 2007, annexed to Defendants' Opposition as Exhibits "A" and "B").

Footnote 13: See Zuckerman v. New York, 49 NY2d 557 (1980); Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851 (1985); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957).