Lott-Coakley v Ann-Gur Realty Corp.

[*1] Lott-Coakley v Ann-Gur Realty Corp. 2009 NY Slip Op 50778(U) [23 Misc 3d 1114(A)] Decided on April 23, 2009 Supreme Court, Bronx County Roman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 1, 2009; it will not be published in the printed Official Reports.

Decided on April 23, 2009
Supreme Court, Bronx County

Loshema Lott-Coakley, an Infant under the Age of 14 Years, by Her Parent and Natural Guardian, Sherma Lott-Coakley and Sherima Lott-Coakley, Individually, Plaintiff(s),

against

Ann-Gur Realty Corporation and Miguel Nieves, Defendant(s).



22509/05

Nelson Roman, J.

Defendants move seeking an Order granting them summary judgment over and against plaintiffs on a host of different grounds. First, defendants seek summary judgment with respect to plaintiffs' claim that plaintiff LOSHEMA LOTT-COAKLEY (Loshema) was exposed to lead while residing within apartment No.4B of the premises herein on grounds that no evidence exists evincing that there was a lead hazard therein. Second, defendants seek summary judgment with respect to plaintiffs' claim that Loshema was exposed to lead within apartment #1F on grounds that upon notice of the lead hazard therein existing, defendants reasonably abated the same. Alternatively, defendants seek summary judgment with respect to all claims made against defendant MIGUEL NIEVES (Miguel) on grounds that Miguel as an employee of defendant ANN-GUR REALTY CORPORATION (AG) acted solely within the scope of his employment, committing no independent tortious acts. Lastly and also as alternative relief, defendants seek summary judgment with respect to plaintiffs' claims which seek punitive damages on grounds that defendants actions, even if proven, do not rise to the level required for purposes of exemplary damages. Plaintiffs do not oppose defendants motion insofar as summary judgment is sought with respect to any claims regarding apartment #4B, instead conceding that no claims are made regarding the same. With regard to the other relief sought, plaintiffs contend that questions of fact preclude summary judgment.

For the reasons that follow hereinafter, defendants' motion is hereby granted in part.

The instant action is for alleged personal injuries premised upon the negligent maintenance of a premises. Plaintiffs' complaint alleges the following. Between March 2001 and March 2004, Loshema, born October 2000, resided within premises located at 1487 Teller Avenue, Bronx, NY, said premises owned, operated, managed and maintained by defendants. Specifically, between March 2001 and August 2001, Loshema resided within apartment #4B and between August 2001 [*2]and March 2004, she resided within apartment #1F. Defendants were aware that Loshema resided within the premises herein and that there existed a lead hazard therein. Defendants failed to abate the lead hazard herein and Loshema was poisoned thereby. In failing to abate the lead hazard herein, defendants were negligent, said negligence causing injury to Loshema. Defendants failure to abate the condition herein was wanton and reckless thereby meriting the award of punitive damages. Plaintiff SHERIMA LOTT-COAKLEY (Sherima), Loshema's mother, asserts a derivative claim for loss of services.

In support of the instant motion, defendants submit a legion of records, including a lease, repair history, and medical records [FN1]. None of the records are properly certified and no foundation for the same's admission is laid. Accordingly, with the exception of any records not objected to by plaintiffs and relied upon by the same, none of the records submitted shall be considered by this Court.

Defendants submit portions of Losehma's medical records from Lincoln Medical and Mental Health Center. The same evince that blood tests performed upon Loshema on October 23, 2003 evince that her blood level was 23. The results of said tests were referred to the New York City Department of Health. Loshema's blood was tested thereafter on December 3, 2003. At that time her lead level was 15. The results of said tests were also referred to the New York City Department of Health.

Defendants submit copies of two leases evincing that Sherima, Louis and Loshema were leased apartments within 1487 Teller Avenue, Bronx, NY. Apartment #4B was leased to them beginning on March 15, 2001 and apartment #1F was leased to them beginning on August 17, 2001. Riders to the lease evinced that Loshema was a year old at the times the leases were executed.

Defendants submit records from the New York City Department of Health and Mental Hygiene which evince that on November 3, 2003, an XRF inspection of #1F yielded 12 areas containing lead paint and warranting violations. On November 12, 2003, AG was ordered to abate the lead conditions found therein as the same constituted a hazard.

Defendants submit a copy of a stipulation dated October 28, 2003 evincing that an action in Housing Court was settled and as a consequence of the same AG agreed to inspect and repair several areas within Sherima's apartment, including the bedroom ceiling, and the bedroom and kitchen windows and balances.

Defendants submit Sherima's deposition transcript, wherein she testified, in pertinent part as [*3]follows. In March 2001, Sherima, along with her husband, and daughter Loshema, moved into apartment #4B within premises located at 1487 Teller Avenue, Bronx, NY. In August of that same year, due to her husband's ailing health, Sherima, her husband and Loshema moved into apartment #1F. Sherima and her family remained tenants at the premises herein until November 2004. Loshema was born in October 2000. During the time they resided within apartment #4B, Sherima noticed no peeling paint within the apartment, made no complaints regarding the same and described the same as being in good condition. No lead paint was ever found in apartment #4B. In August 2001, the family moved into apartment #1F. Prior to moving into #1F, Sherima was shown the apartment by Miguel, the superintendent at the premises herein. The apartment needed painting but was otherwise in good condition. A lease was executed at the offices of AG, where Sherima dealt with a Larry Delgado (Larry). #1F was painted and the family moved in. Sometime in March or December 2002, Sherima began to notice peeling paint in several areas within #1F. In particular, she noted cracking and peeling in a closet, in the bathroom, in the bedroom, and in the kitchen. Sherima complained to Miguel, who forwarded the information. No repairs were made. Sherima continued to complain and the condition worsened to the point where she had to sweep peeling paint chips off the floor. In January 2003, Sherima also complained to Larry regarding the peeling and cracking paint within #1F. No repairs were made thereafter. Between February 2002 and January 2003, Sherima had observed dust on Loshema's hands. At times Loshema would put her dirty hands in her mouth. Since the inception of the peeling paint issue, Sherima continued to complain to Mike who saw the peeling paint first hand, was very cooperative in responding to the complaints made, but could not rectify the problem absent action from the owner of the premises. In December 2002, Loshema had the lead levels in her blood measured and they were found to be at 10. In October 2003, lead levels in Loshema's blood were measured and were found to be 23. In November 2003, lead levels in Loshema's blood were again measured and found to be 15. In November 2003, City officials came to #1F, in response to Loshema's elevated blood lead level and placed stamps within the apartment indicating all areas were the paint contained lead. Stamps were placed in all the areas where paint was peeling and about which Sherima had complained. Thereafter, the owner of the building hired contractors to remove the lead within the apartment. Walls were ripped out, and heaters were changed.

Defendants submit Louis Lott's (Louis) deposition transcript, wherein he testified, in pertinent part as follows. In March 2001, he along with his wife Sherima and his daughter Loshema, born October 19, 2000, moved into apartment #4B at 1487 Teller Avenue, Bronx, NY. Within #4B, the walls were cracked. Due to his ailing health, in August 2001, the family moved to apartment #1F within the premises herein. Upon moving into #1F in August, Louis noted that the apartment had been recently painted. Nevertheless, he noticed chipping paint on the radiators in both the living room and the bedroom. In January 2002, Louis noted that the paint in #1F was peeling. Specifically, the paint under the living room windows began to chip as well as the paint behind the front door. Complaints were made to Miguel the superintendent, who while unresponsive at times nevertheless conveyed the same to Larry. The paint continued to chip and in February 2002, Larry came to #1F and observed the conditions. Louis never saw Loshema eating paint chips, but beginning in November 2002, did often witness dust on her hands. Loshema habitually put her hands in her mouth. In October 2003, Louis and Sherima went to Housing Court in response to papers served upon them for refusal to pay rent. While in Court, Louis complained about the conditions in #1F [*4]attributing the same for his failure to pay rent. In October or November 2003, the City's Department of Health came to #1F and inspected the same for lead. They placed stamps throughout the apartment indicating lead in the paint. Thereafter, people were sent to fix the conditions in the apartment. The kitchen was painted and cracks in the walls were plastered and painted. Thereafter, Loshema's blood was tested for lead and she had a lead level of 23. Losehma's lead level was conveyed to Larry. The City returned to the apartment after the repairs were made, noting that there were still lead related problems in the apartment.

Defendants submit Miguel Nieves' (Miguel) deposition transcript, wherein he testified, in pertinent part, as follows. Since 1992, Miguel has continuously been the superintendent at 1487 Teller Avenue, Bronx, NY. Prior to 2005, Larry was the manager and the building was owned by Irvin Yasgar. While not having any particular recollection as to time, he recalls that Sherima, Loshema and Louis became residents at the premises herein. They initially moved into apartment #4B and several months thereafter, they moved to apartment #1F. The premises herein consisted of 34 apartments and it was customary to paint and repair all apartments prior to renting them. With regard to repairs, when tenants would request the same, if they were beyond Miguel's capabilities, he would convey the same to Larry who would assess the problem and repair the same. Besides cleaning and mopping, the only repairs that Miguel would undertake were those involving light switches, outlets, bulbs or window balances. Painting and plastering were tasks that were contracted to contractors. Both apartments #4B and #1F were painted prior to the family herein moving into them. The family herein never made any complaints regarding #4B and Miguel recalls that #1F was repaired on three occasions while the family lived therein. The first two repairs involved repair work to the ceilings and walls due to a leak from the apartment above. The last repair was lead abatement repair precipitated by complaints made to by the family regarding lead paint therein. In speaking to Larry, Miguel, who knew that lead paint presented a hazard to children, learned that lead was found within the paint in #1F. Thereafter, Larry hired contractors to abate the same.

Defendants submit Loshema's deposition transcript, which is not pertinent to the Court's decision.

In opposition to the instant motion, plaintiffs submit a legion of documents, many of which are not certified and no foundation for the same is laid [FN2]. With the exception of the documents submitted by plaintiffs, which defendants fail to object to and also submit and rely upon, none of the other documents, lacking foundation, warrant consideration.

Plaintiffs submit other evidence, such as Sherima's deposition transcript, already submitted by defendants, and discussed above, an affidavit from Sherima, wherein she reiterates the contents [*5]of her deposition testimony, and several affidavits. None of the admissible evidence submitted warrant discussion as the same is not pertinent to the Court's decision.

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). Photographs submitted in support of in opposition to a motion for summary judgment must be authenticated and be accompanied by the requisite foundation. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Wasserman v. Genovese Drug Store, Inc., 282 AD2d 447 (2nd Dept. 2001); Morales v. City of New York, 278 AD2d 293 (2nd Dept. 2000); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999); Truesdell v. Rite Aid of New York, Inc., 228 AD2d 922 (3rd Dept. 1996). Authentication, with regard to photographs, generally requires evidence that the photographs being proffered fairly and accurately represent the condition depicted by said photographs. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999). With regards to leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50 (1st Dept. 1997). [*6]

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Philips, for example, the court found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972). The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witness' testimony and that witness' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR §4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition to summary judgment be submitted in admissible form or that said evidence's if in admissible be accompanied with reasons for its inadmissibility.

[*7]When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003)

Lead Paint Liability

In this State, liability for lead paint exposure is governed by traditional notions of common law negligence for dangerous conditions upon a premises, Chapman v. Silber, 97 NY2d 9 (2001), as well as by statutory duties imposed upon the owner of a premises, such as the Administrative Code of the City of New York, Jaurez v. Wavecrest Management Team Ltd., 88 NY2d 628 (1996). Generally, much like any other dangerous condition upon land, an owner of premises is not liable for injuries caused by lead paint within premises owned by them, unless the landlord has prior notice, either actual or constructive notice of a lead condition which actually poses a hazard. Chapman v. Silber, 97 NY2d 9 (2001); Jaurez, supra; Shafqat v. Blackman, 16 AD3d 574 (2nd Dept. 2005). [*8]Accordingly, in the absence of a statute specifically related to the abatement of a lead condition, an owner of premises is liable for a lead condition therein, if said owner has notice that a lead condition exists within his premises which poses a hazard. Chapman, supra; Galicia v. Ramos, 303 AD2d 631 (2nd Dept. 2003). In Chapman, the court concluded that while there was no statutory duties imposed upon the landlord in that case, liability was nevertheless governed by common law principles of negligence. Id. The Court held that summary judgment was not warranted since the evidence demonstrated that the landlord was aware that lead hazard existed within the plaintiffs' apartment. Chapman, supra. The court defined hazard in that case as knowledge that the building was old, that the paint within the same was chipping, the dangers of lead paint to children, and that said apartment housed young children. Id.

In New York City, aside from liability under the common law discussed above, liability for lead paint hazards stems from the duties imposed upon a landlord or owner of premises by the Administrative Code [FN3] and Multiple Dwelling Law §78. Jaurez, supra. In 1982, New York City's City Council, enacted Local Law No. 1 (1982) (Local 1982), codified in the New York City Administrative Code, legislation aimed at reducing the number of children under age seven ingesting lead and being poisoned thereby. Community Preservation Corporation v. Miller, 5 Misc 3d 388 (Supreme Court, New York County 2004), aff'g, 15 AD3d 193 (1st Dept. 2004). Local 1982, also represented New York City's attempt to define an owner's obligation as it related to the abatement of lead paint conditions within their premises. Coalition to End Lead Poisoning, Inc. v. Vallone, 100 NY2d 337 (2003). Local 1982, was a lead free law, which required owners of any multiple dwellings, built prior to 1960, where children under seven years of age resided, to abate any lead conditions existing therein. Juarez, supra; Miller, supra. Abatement meant removal or covering of any lead paint existing within a particular apartment. Miller, supra. Local 1982 created a rebuttable presumption that all peeling paint within a building built prior to 1960 and wherein children under seven years resided was lead based paint. Id.; Valllone, supra; Juarez, supra. Under Local 1982, lead removal procedures where promulgated by the New York City Department of Health and Mental Hygiene (DOH), while enforcement of the abatement imposed by Local 1982, was delegated to the New York City Department of Housing Preservation and Development (HPD). Id. Under Local 1982, a lead hazard existed when a premises contained lead exceeding the statutory threshold while a child under the age of seven years resided therein. Juarez, supra; O'Neal v. New York City Housing Authority, 4 AD3d 348 (2nd Dept. 2004). On November 12, 1999, New York City's City Council passed Local Law 38, a lead safe legislation, which superceded Local 1982. With slight variation, Local Law 38 continued to create the rebuttable presumption contained in Local 1982, stating that a lead hazard, was rebuttably presumed to exist when a child under six resided within a premises built prior to 1960. New York City Administrative Code §27-2056.4(a) (1999); Vallone, supra; Miller, supra; O'Neal, supra. Local Law 38, also codified in the New York City Administrative Code, imposed less stringent lead removal standards than its predecessor, requiring only the removal of any lead from surfaces where the paint was not intact. Vallone, supra; Miller, supra. Local Law 38 also allowed for remediation procedures which were less strict than those promulgated by the DOH and allowed and granted an owner long periods of time within which to [*9]comply with abatement. Id. Local Law 38 also lowered the age of children protected from lead paint hazards. Vallone, supra. In 2003, Local Law 38, was invalidated by the Court of Appeals [FN4]. Id.; Miller, supra; O'Neal, supra. This reinstated Local Law 1982, as of July 1, 2003, Id., until 2004, when the New York City Council passed Local Law No. 1, (2004) (Local 2004), also found in the New York City Administrative Code. Miller, supra. Like Local Law 38, Local 2004 is a lead safe legislation, requiring only the removal of lead paint that is peeling or chipping as opposed to paint that is intact. Id. Similar to Local 1982, Local 2004 rebuttably presumes that in any building built prior to 1960, where a child under the age of seven resides, all paint contained therein is lead based paint even if the same is not peeling. Id. Local 2004, mandates that landlords make yearly inquiries as to whether any children under the age of seven reside within their premises and if so, to inspect the premises for the presence of lead based paint. Id. Insofar as Local Law 38 was invalidated by the Court of appeals, at least one court has taken the position that Local 38 was never in affect between 1999 and 2003, and that for that time period Local 1982 was in effect. O'Connor v. Weiss, 18 Misc 3d 1124(A) (Supreme Court, Kings County 2008).

Thus, the Administrative Code mandates that the owner of a premises, whether or not he is in possession, abate a lead paint based hazard when one exists. Id. The Administrative Code, by its terms, grants the owner of a premises a right of reentry to abate a lead condition and, as discussed above, creates a rebuttable presumption that any building erected prior to 1960 and within which the plaint is pealing, has paint with an elevated lead level. Id. The Administrative Code further states that a lead hazard exists in any premises when the lead levels within a premises exceed the allowable limit and a child under seven years of age resides therein. Id. Thus, the Administrative Code rebuttably presumes that a lead hazard, meaning elevated lead levels, exist in any apartment where the paint is peeling, when said building was built before 1960, if the same is inhabited by children under the age of seven. Id.

Despite the mandates of the Administrative Code, as with all premises liability cases, liability in New York City is premised upon actual or constructive notice of the hazardous lead paint condition. Id.; Concepcion v. Walsh, 38 AD3d 317 (1st Dept. 2007). Liability thus depends on prior notice, actual or constructive, of both a hazardous lead condition within an apartment and prior notice, actual or constructive, that a child under the age of seven resides therein. Id. However, due to the Administrative Code, in New York City, constructive notice of a lead condition is more easily proven in New York City insofar as per case law, an owner of a building who has notice that a child under seven resides within his premises, is charged with constructive notice for any hazardous lead [*10]condition found therein. Id.; Concepcion, supra; Jiminez v. City of New York, 7 AD3d 268 (1st Dept. 2004); Crespo v. A.D.A. Management, 292 AD2d 5 (1st Dept. 2002); Velez v. Stopanjac, 273 AD2d 22 (1st Dept. 2000); Woolfalk v. New York City Housing Authority, 263 AD2d 355 (1st Dept. 1999); Miller v. 135 Realty Associates, L.P., 266 AD2d 112 (1st Dept. 1999); Rivas v. 1340 Hudson Realty Corp., 234 AD2d 132 (1st Dept. 1996). Under such circumstances the Administrative Code mandates that said owner must take reasonable steps to abate the lead condition therein. Id.

The foregoing, with regard to constructive notice, ought not to be confused with the rebuttable presumption created by Local 1982 that a hazardous lead condition exists within an apartment. That presumption establishes the existence of a hazardous lead condition and is premised upon proof that the owner has notice that a child under seven resides therein, that the paint within the apartment is peeling, and that the building in question was erected prior to 1960. Concepcion, supra. Obviously, the presumption of notice established by the Administrative Code does diminish the applicability of traditional notions of common law notice. Galicia v. Ramos, 303 AD2d 631 (2nd Dept. 2003)

For purposes of notice, the mere knowledge that a building is old or that there is chipping or peeling paint therein, by themselves do not charge the owner with notice of a lead hazard within his premises. Gonzalez v. Nemetz, 276 AD2d 670 (2nd Dept. 2000). Similarly, in the First Department, notice of a lead hazard in other apartments does not confer notice of such a hazard in other apartments within the premises. Concepcion, supra, cf., Rodriguez v. Amigo, 244 AD2d 323 (2nd Dept. 1997) (Second Department held that notice of lead hazard in other apartment was sufficient to confer notice of lead hazard in another apartment.).

Evidence demonstrating an absence of lead paint within a premises coupled with evidence demonstrating a lack of notice that a child under seven resides within a premises is sufficient to establish prima facie entitlement to summary judgment by a defendant. Ibert v. Tuscan Associates, Inc., 37 AD3d 194 (1st Dept. 2007); Vega v. New York City Housing Authority, 52 AD3d 294 (1st Dept. 2008). Evidence that the building at issue was constructed after 1960 is prima facie evidence sufficient to rebut the presumption of the existence of lead paint imposed by the Administrative Code. Herrera v. Persaud, 276 AD2d 304 (1st Dept. 2000). However, evidence that defendant's superintendent had notice that a child under the age seven resided within a premises raises an issue of fact as to whether defendant owner had notice of a hazardous lead condition sufficient to preclude summary judgment. Ibert v. Tuscan Associates, Inc., 37 AD3d 194 (1st Dept. 2007). In Ibert, the court denied defendant's motion for summary judgment when the evidence demonstrated that defendant owner's superintendent had notice that a child under seven resided therein. Id. Although not specifically mentioned by the court, the issue of notice turned on the holding in Juarez, which due to the New York City Administrative Code charges an owner with notice of a hazardous lead condition when there is notice that a child under age seven resides within a premises.

An owner or landlord who establishes that he exercised due care and acted reasonably under the circumstances, shall not be liable for a lead hazard within his premises. Juarez, supra; Vega, supra; Rivas, supra.

[*11]Piercing the Corporate Veil

A corporation is a legal entity which is distinct from its managers and shareholders. Port Chester Electrical Construction Corp., v. Atlas, 40 NY2d 652 (1976). The separate personalities of the corporation, its shareholders and its managers cannot be disregarded. Id. However, the Court does have the authority to look beyond the corporate form, and hold the shareholders and managers liable; this is commonly referred to as piercing the corporate veil. Id. The Court can pierce the corporate veil to prevent fraud or to achieve equity. Id. One of the inquiries is whether the shareholder or manager uses the corporation for the transaction of personal business, having nothing to do with the corporate ends. Id. The fact that one individual exercises complete control over the corporation is not by itself sufficient to warrant piercing the corporate veil. Id. The Court can also pierce the corporate veil when an individual shareholder uses the corporation to conduct personal business in order to shield himself from liability. Perez v. One Clark Street Housing Corporation, 108 AD2d 844 (2nd Dept. 1985). The Corporate veil will generally not be pierced absent proof of fraud, illegality, or wrongdoing by the shareholder or manager. Marino v. Dwyer-Berry Construction Corp., 146 AD2d 750 (2nd Dept. 1989). The party seeking to pierce the corporate veil has the burden of establishing that there is a basis to do so. Katz v. NY Tint Taxi Corp., 213 AD2d 599 (2nd Dept. 1995). A complaint that fails to allege that a shareholder ignored, circumvented or perverted the corporate form, was fraudulent or involved in misrepresentation must fail. Perez v. One Clark Street Housing Corporation, 108 AD2d 844 (2nd Dept. 1985). The Court of Appeals has concluded that before the corporate veil can be pierced, so as to hold the shareholders, managers, owners, or employees liable for the wrongs of the corporation plaintiff must demonstrate that the defendant exercised complete dominion or control over the transaction attacked, and that such dominion or control was used to commit fraud or a wrong against the plaintiff, which resulted in plaintiff's injury. Morris v. New York State Department of Taxation, 82 NY2d 135 (1993). Proof of control is not enough. Id. Plaintiff must demonstrate an abuse of said control to perpetrate a wrong or injustice. Id.

With respect to the liability of corporate officers in their individual capacity, it is well settled that a corporate officer is not held liable for the negligence of the corporation merely by virtue of said employee's relationship to the corporation. Felder v. R and K Realty, 295 AD2d 560 (2nd Dept. 2002). A claim against a corporate officer must be dismissed absent a showing that said employee acted in anything other than his corporate capacity or absent a showing that said officer committed individual and separate tortious acts. Murtha v. Yonkers Child Care Association, Inc., 45 NY2d 913 (1978); Robbins v. Panitz, 61 NY2d 967 (1984); Espinosa v. Rand, 24 AD3d 102 (1st Dept. 2005); Rodriguez v. 1414-1422 Ogden Avenue Realty Corp., 304 AD2d 400 (1st Dept. 2003); Calip Dairies, Inc. v. Penn Station News Corporation, 262 AD2d 193 (1st Dept. 1999); American Express Travel Related Services v. North Atlantic Resources Inc., 261 AD2d 310 (1st Dept. 1999). When it is demonstrated that a corporate officer participates in the commission of the tort alleged, he is subject to liability even if he acted on behalf of the corporation. Espinosa v. Rand, 24 AD3d 102 (1st Dept. 2005); American Express Travel Related Services Company, Inc. v. North Atlantic Resources, Inc., 261 AD2d 310 (1st Dept. 1999). In Espinosa, a lead paint action, summary judgment was denied in favor of the defendant a corporate officer, when the evidence demonstrated that he had made misrepresentations to the plaintiff, said misrepresentation being potentially tortious. Id. [*12]

Additionally, it is well settled that an employee of a corporation who commits no separate tortious act and who acts solely in his capacity as employee of the corporation cannot be liable for the acts of the corporation. Mendez v. City of New York, 259 AD2d 441 (1st Dept. 1999); Urbach, Khan & Werlin, P.C. v. 250/PAS Associates, 176 AD2d 151 (1st Dept. 1991). This is because

An individual acting solely in his capacity as agent of his corporate principal, without any showing of exclusively independent control of operations, cannot be held individually liable for alleged corporate wrongdoing.

Mendez v. City of New York, 259 AD2d 441, 442 (1st Dept. 1999). In fact, absent evidence that an officer committed independent tortious acts, or that he acted in any other manner other than within the scope of his employment as a corporate officer, summary dismissal of the individual action is required. Id. In Mendez, a premises liability case, the court dismissed the action against an individual defendant employed by the managing company when the evidence demonstrated that while defendant did engaged in maintenance of the property therein, he had committed no independent tort and had acted in no other capacity other than that of employee. Id.

Punitive Damages

When the actions of an alleged tortfeasor constitute gross recklessness or intentional, wanton, or malicious conduct aimed at the public, or when actions are activated by evil or other reprehensible motives, a party is entitled to punitive damages. Boykin v. Mora, 274 AD2d 441 (2nd Dept. 2000); Nooger v. Jay-Dee Fast Delivery, 251 A,D,2d 307 (2nd Dept. 1998); Zabas v. Kard, 194 AD2d 784 (2nd Dept. 1993). Additionally, punitive damages are also appropriate when a defendant's conduct is so flagrant that it transcends mere carelessness, Id., or when it contains elements of spite or malice. Wilson v. The City of New York, 7 AD3d 266 (1st Dept. 2004). In Williams v. Halpern, 25 AD3d 467, 467 (1st Dept. 2006), the court sustained a claim for punitive damages, finding that the evidence was sufficient to "permit a jury to find that defendant's conduct demonstrated a gross indifference to patient care and a danger to the public." In Charell v. Gonzalez, 251 AD2d 72 (1st Dept. 1998), the court vacated an award for punitive damages after finding that defendant's conduct was neither grossly dishonest or indifferent to patient care, thereby establishing that had the opposite been true, the award would have stood.

Discussion

Defendants' motion seeking to dismiss plaintiffs' claims to the extent that the same are premised upon lead poisoning within apartment #4B of the premises herein is hereby granted. While plaintiffs plead that their claims arise from lead hazards within apartment #4B, in opposition the instant motion, plaintiffs concede that they do not seek to recover on any claims related to apartment #4B. Thus, this portion of defendants' motion is hereby granted.

Defendants' motion seeking summary judgment with regard to plaintiffs' claims regarding lead poisoning within apartment #1F is hereby denied. With respect to this portion of the instant motion, defendants have failed to establish prima facie entitlement to summary judgment. [*13]

The proponent of a motion for summary judgment bears the burden, through the use of admissible evidence, of proving his claim or defense thereby warranting a finding that he has established prima facie entitlement to summary judgment. The opponent of a motion for summary judgment bears the burden, also with the tender of admissible evidence, of establishing that material factual disputes with regard to the claims or defenses actually exist thereby precluding summary judgment. In the absence of any factual dispute, the proponent of a motion for summary judgment, who meets his prima facie burden, is entitled to summary judgment. Failure to establish prima facie entitlement to summary judgment warrants denial of the motion irrespective of the opposition submitted.

With respect to cases premised upon lead poisoning, in this State, liability for lead paint exposure is governed by traditional notions of common law negligence for dangerous conditions upon a premises, as well as by statutory duties imposed upon the owner of a premises, such as the Administrative Code of the City of New York. Generally, much like any other dangerous condition upon land, an owner of premises is not liable for injuries caused by lead paint within premises owned by them, unless the landlord has prior notice, either actual or constructive notice of a lead condition which actually poses a hazard. Accordingly, in the absence of a statute specifically related to the abatement of a lead condition, an owner of premises is liable for a lead condition therein, if said owner has notice that a lead condition exists within his premises which poses a hazard. In New York City, aside from liability under the common law discussed above, liability for lead paint hazards also stems from the duties imposed upon a landlord or owner of a premises by the Administrative Code and Multiple Dwelling Law §78. Specifically, liability for lead hazards within premises have been governed by Local 1982, then Local Law 38 and currently Local 2004, legislation aimed at reducing the number of children under age seven ingesting lead and being poisoned thereby. Irrespective of which Local Law applies, the pertinent point is that in New York City, under certain conditions, the Local Laws impute constructive notice of lead conditions within a dwelling and more importantly, rebuttably presume that under certain circumstances a lead hazard does in fact exist within a premises. Thus, it is well settled that in New York City, based on the Local Laws, a landlord who has notice that a child under seven [FN5] resides within his premises is charged with constructive notice of any lead hazard found therein. Additionally, in New York City, also due to the Local Laws, a lead hazard is presumed to exist within any premises where a child under seven resides, where the premises was built prior to 1960, and where the paint is peeling [FN6]. Under the Local Laws, remediation procedures are promulgated by the DOH, while enforcement of the Local Laws is delegated to the HPD. It is well settled that an owner or landlord who establishes that he exercised due care and acted reasonably under the circumstances, he shall not be liable for a lead hazard within his premises.

The ground for defendants' motion seeking outright dismissal of this action is that once they learned of the lead hazard within apartment #1F, they remediated the condition in a reasonable manner as required by law. Thus, defendants argue that they are entitled to summary judgment. The [*14]Court finds that based on the evidence submitted, defendants have failed to establish prima facie entitlement to summary judgment on the ground that their response to the instant lead hazard was reasonable.

In support of the instant motion, defendants submit a legion of documents, not all of which were in admissible form and thus only some of which were considered by this Court. Defendants submit both Sherima and Miguel's deposition transcripts. Losehema's testimony establishes the existence of a lead hazard within apartment #1F, of which defendants were aware and failed to timely abate, and which caused injury to Loshema. Sherima testified that as early as December 2002, the paint in her apartment, wherein she resided with an infant child, two years old at the time, was peeling. Complaints regarding the same were lodged, the condition was actually observed by defendants, via Miguel and Larry. Despite the same, Sherima testified that the condition was not remediated until November 2003, after Loshema was found to have elevated lead levels in her blood and after the City of New York got involved. Miguel's testimony establishes that he was aware of the dangers that lead paint posed to children. Miguel also confirms there were elevated lead levels within plaintiffs' apartment necessitating abatement. Defendants also submit records from the DOH evincing that on November 3, 2003, an XRF inspection of apartment #1F yielded 12 areas containing lead paint warranting violations. On November 12, 2003, defendants were ordered to abate the lead conditions found therein as the same constituted a hazard. Defendants submit the lease between them and the plaintiffs for apartment #1F. Said lease lists Loshema as a resident within apartment #1F, listing her age as a year old.

The Court notes, that as a preliminary matter, the foregoing version of the evidence, if credited, casts the defendants in liability under common law principles. The foregoing evidence evinces defendants through Miguel concede that they were aware of the dangers lead paint posed to children. The evidence further establishes that as early as December 2002, insofar as they received numerous complaints regarding peeling paint, defendants were on actual notice of an ultimately confirmed lead hazard within apartment #1F. Despite actual notice, defendants failed to remedy the condition until after Loshema was diagnosed with elevated lead levels almost a year later. Thus, the evidence presented casts defendants in liability under common law principles. The foregoing evidence, again, if credited, also casts defendants in liability based upon Local 1982 or Local Law 38. As discussed above, due to the Local Laws, in New York City, a landlord who has actual notice that a child under seven (Local 1982) or six (Local Law 38) resides within a premises is charged with constructive of any lead hazard found therein. In this case, assuming that Local law 38 applies, as just discussed, defendants knew that a child under the age of six resided within apartment #1F as early as August 2001. In November 2003, the DOH discovered a lead hazard within said apartment. Said lead hazard causing injury to Loshema. Thus, as per the Local Laws, defendants had constructive notice of the lead hazard discovered in 2003 as early as August 2001. For over two years, despite constructive notice of the same, defendants, as per the evidence, took no steps to abate the same, the result being Loshema's lead exposure.

Based on the foregoing, defendants would only be entitled to summary judgment, based upon the grounds asserted, upon proof that lead abatement efforts undertaken by them were reasonable. Defendants fail to establish prima facie entitlement to such relief insofar as the admissible evidence [*15]submitted fails to describe the abatement efforts undertaken with particularity, thereby precluding the Court from assessing the reasonableness of the same. Reasonableness of any abatement efforts necessarily depends on what was done, when, and if the same was done in accordance to the mandates of the DOH. Thus, defendants fail to establish prima facie entitlement to summary judgment. Having failed to establish prima facie entitlement to summary judgment on this issue, this portion of the motion is denied and the Court need not address plaintiffs' opposition papers on this issue.

Defendants' motion seeking summary judgement with respect to all claims asserted by plaintiffs against Miguel is hereby granted insofar as the evidence presented evinces that at all relevant times Miguel acted only within the scope of his employment and committed no independent tortious acts.

It is well settled that an employee of a corporation who commits no separate tortious act and who acts solely in his capacity as employee of the corporation cannot be liable for the acts of the corporation. In fact, absent evidence that an officer committed independent tortious acts, or that he acted in any other manner other than within the scope of his employment as an employee, summary dismissal of the individual action is required.

The evidence presented by defendants evinces that Miguel, superintendent employed by AG, committed no independent tortious act proximately causing the injuries claimed herein. Sherima testified that Miguel was the superintendent and that he conveyed all of her complaints to the owner of the premises herein. Miguel testified that he was the superintendent of the premises herein and beyond minor repairs and cleaning, could not perform plastering nor painting. Louis testified that Miguel was less than reliable with respect to the complaints made by him and Sherima. Based on the foregoing, it is clear that Miguel committed no independent tortious act with respect to the events herein and that he only acted within the scope of his employment as superintendent. Thus, defendants establish prima facie entitlement to summary judgment with regard to the claims asserted against Miguel.

Plaintiff's opposition raises no issues of fact sufficient to preclude summary judgment with regard to claims made against Miguel. None of the admissible evidence submitted by defendants evinces that Miguel was anything other than the superintendent of the premises herein, that he acted only within the scope of his employment, or that he committed any independent tortious acts. Any claim that Miguel was anything other than the superintendent is utterly unsupported by the admissible evidence. Thus, defendants' motion seeking summary judgment with regard to claims made against Miguel is hereby granted.

Defendants' motion seeking dismissal of any claims seeking punitive damages is hereby denied insofar as defendants fail to establish prima facie entitlement to summary judgment.

When the actions of an alleged tortfeasor constitute gross recklessness or intentional, wanton, or malicious conduct aimed at the public, or when actions are activated by evil or other reprehensible motives, a party is entitled to punitive damages. Additionally, punitive damages are also appropriate [*16]when a defendant's conduct is so flagrant that it transcends mere carelessness or when it contains elements of spite or malice.

In this case, as described above, the evidence submitted by defendants, namely Sherima's deposition testimony, evinces that they allowed a lead hazard to exist for almost two years after actual and constructive notice of the same. This hazard led to elevated blood lead levels in Loshema's blood. If credited, a jury could find that this conduct, the protracted and repeated failure to abate a known led hazard, causing injury to another person, is flagrant enough to transcend carelessness so as to warrant punitive damages. Thus, for this reason, defendants fail to establish prima facie entitlement to summary judgment on the claims for punitive damages. Having failed to establish prima facie entitlement to summary judgment on this issue, this portion of the motion is denied and the Court need not address plaintiffs' opposition papers on this issue. It is hereby

ORDERED that plaintiffs' complaint to the extent that it alleges any claims arising from plaintiffs' tenancy within apartment #4B be hereby dismissed with prejudice. It is further

ORDERED that plaintiff's complaint as against Miguel be hereby dismissed with prejudice. It is further

ORDERED that defendants serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :April 23, 2009

Bronx, New York

________________________________Nelson S. Roman, J.S.C.

Footnotes

Footnote 1:There is no requirement that the proof on a motion for summary judgment be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).

Footnote 2: The opponent of a motion for summary judgment must tender proof in admissible form. While at times evidence lacking foundation can be considered, this Court requires that submissions in opposition to summary judgment submitted in inadmissible form must be accompanied by an excuse for proffering the inadmissible evidence in admissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999).

Footnote 3:Local Law No. 1(1982), Local Law 38, and Local Law No. 1 (2004).

Footnote 4: Specifically, Local Law 38 was deemed invalid on October 11, 2000. Coalition to End Lead Poisoning, Inc. v. Vallone, 2000 WL 35489654 (Supreme Court, New York County 2000). Thereafter Local law 38 was reinstated on March 26, 2002 by Coalition to End Lead Poisoning, Inc. v. Vallone, 293 AD2d 85 (1st Dept. 2002). Thereafter Local law 38 was invalidated on July 1, 2003 by Coalition to End Lead Poisoning, Inc. v. Vallone, 100 NY2d 337 (2003). Thus, notwithstanding the holding in O'Connor v. Weiss, 18 Misc 3d 1124(A) (Supreme Court, Kings County 2008), holding that Local Law 38 was never applicable, an argument can be made that Local Law 38 was applicable from November 12, 1999 through October 11 2000 and from March 26, 2002 to July 1, 2003.

Footnote 5: Under six if analyzed under Local Law 38.

Footnote 6: Local Law 38, does not impose that paint be peeling for purposes of the rebuttable presumption.