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|  | Appeal in a Lead Poisoning Case | |  | |
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Case Results Disclaimer
F&F# 93696A
LEAD POISONING-NOTICE OF HAZARD ON
PART OF LANDLORDS
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| Court: | Appellate Division, Second Department
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| Cite: | 2002 N.Y. Slip Op. 02638, 739 N.Y.S.2d 450
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| Summary: | In this lead poisoning case, Fitzgerald & Fitzgerald, P.C., persuaded the Appellate Division, Second Department, that plaintiffs presented issues of fact whether the defendant landlords had notice of the lead paint hazard. Because the case arose in Nassau County, the special constructive notice rules applicable to New York City that are highly advantageous to plaintiffs, Juarez v. Wavecrest Management Team, 88 N.Y.2d 628, 672 N.E.2d 135, 649 N.Y.S.2d 115 (1996), did not apply.
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| Facts: | Infant apartment resident and infant's mother sued landlords to recover damages for personal injuries allegedly caused by exposure to lead paint in the apartment. Plaintiffs sued defendant landlords based on the latter's negligence.
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| Holdings of the Courts Below: | The Supreme Court, Westchester County, Cowhey, J., denied the plaintiffs' motion for summary judgment on the issue of liability and granted the defendants' cross motion for summary judgment dismissing the complaint. Plaintiffs appealed.
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| Discussion: | The Appellate Division, Second Department reinstated the plaintiffs' complaint, holding that genuine issues of material fact existed as to whether landlords knew or should have known that paint was peeling in the apartment.
Specifically, the Appellate Division stated: "Recently, the Court of Appeals held that, absent controlling legislation, a plaintiff-tenant in a lead-paint poisoning case raises a triable issue of fact as to common-law negligence sufficient to defeat a motion for summary judgment by a defendant-landlord by offering evidence that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children, and (5) knew that a young child lived in the apartment. Here, the defendants (1) retained the right of entry to the subject apartment, and, in fact entered the apartment to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) knew of the hazards of lead-based paint to young children, and (4) knew that a young child lived in the apartment. As to the remaining requirement, the plaintiffs raised a triable issue of fact that the defendants knew or should have known that paint was peeling in the apartment. Accordingly, the defendants' cross motion for summary judgment dismissing the complaint should have been denied." [cites omitted]
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