HANNAH v. LANPHER LLC (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment and order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated with respect to plaintiff Kayona Hannah.

Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedly caused by childhood exposure to lead paint in an apartment owned or managed by defendants. Defendants moved for summary judgment dismissing the complaint with respect to Kayona Hannah (plaintiff). Supreme Court granted the motion, and plaintiff appeals. We reverse, deny the motion, and reinstate the complaint with respect to plaintiff.

We agree with plaintiff that the court erred in granting the motion. “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]). Here, defendants met their initial burden by submitting plaintiff's own deposition testimony together with her medical and school records, which demonstrate an absence of cognitive deficits or mental health issues causally connected to lead exposure (see generally Hamilton v. Miller, 23 N.Y.3d 592, 602–603, 992 N.Y.S.2d 190, 15 N.E.3d 1199 [2014]; Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980], rearg. denied 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010 [1980]). Plaintiff, however, raised triable issues of fact by submitting the report of an expert who diagnosed her with a major neurocognitive disorder due to lead toxicity and who concluded, based on scientific data and plaintiff's medical history, that plaintiff's cognitive deficits were most likely caused by childhood lead exposure (cf. Adrian T. v. Millshan Realty Co., LLC, 147 A.D.3d 473, 474–475, 47 N.Y.S.3d 20 [1st Dept. 2017]; Veloz v. Refika Realty Co., 38 A.D.3d 299, 300, 831 N.Y.S.2d 399 [1st Dept. 2007], lv denied 9 N.Y.3d 817, 851 N.Y.S.2d 127, 881 N.E.2d 223 [2008]).

Finally, we further agree with plaintiff that defendants failed to meet their initial burden insofar as they sought summary judgment on the ground that the action with respect to plaintiff is time-barred (see Larkin v. Rochester Hous. Auth., 81 A.D.3d 1354, 1355, 916 N.Y.S.2d 694 [4th Dept. 2011]; see also CPLR 214–c [2] ).