JOYNER v. DURANT (2000)

 Plaintiff commenced this action against defendants, her landlords, after her daughter was diagnosed with lead poisoning.   She asserted causes of action for negligence and breach of the warranty of habitability (see, Real Property Law § 235-b).   Supreme Court erred in denying that part of defendants' motion seeking summary judgment dismissing the complaint.   Defendants met their burden of establishing that they had no actual or constructive notice of the dangerous lead paint condition, and plaintiff failed to raise a triable issue of fact (see, Boler v. Malik, 267 A.D.2d 998, 700 N.Y.S.2d 323;  Durand v. Roth Bros. Partnership Co., 265 A.D.2d 448, 449, 696 N.Y.S.2d 234;  Arnold v. Advantage Fed. Credit Union [appeal No. 2], 261 A.D.2d 939, 689 N.Y.S.2d 799).   Knowledge of chipping and peeling paint in the apartment does not constitute actual or constructive notice of a dangerous lead paint condition (see, Boler v. Malik, supra, at 998-999, 700 N.Y.S.2d 323;  Durand v. Roth Bros. Partnership Co., supra, at 449, 696 N.Y.S.2d 234;  Lanthier v. Feroleto, 237 A.D.2d 877, 877-878, 654 N.Y.S.2d 531).   Plaintiff may not rely upon any alleged breach of the warranty of habitability to recover damages for personal injuries (see, Richardson v. Simone, 275 A.D.2d 576, 712 N.Y.S.2d 672;  Stone v. Gordon, 211 A.D.2d 881, 621 N.Y.S.2d 220;  Carpenter v. Smith, 191 A.D.2d 1036, 595 N.Y.S.2d 710).   Finally, the court did not err in denying that part of defendants' motion seeking reimbursement for costs incurred in purchasing a request for judicial intervention.   We modify the order, therefore, by granting defendants' motion in part and dismissing the complaint.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: