CORDERO CORDERO v. POSCHMANN (2000)

In an action to recover damages for personal injuries, etc., the defendant Walter Poschmann appeals from an order of the Supreme Court, Kings County (Shaw, J.), dated April 7, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Walter Poschmann, and the action against the remaining defendant is severed.

The plaintiffs contend that the infant plaintiffs Yulixa Cordero and Yarika Cordero suffered from lead poisoning as a result of exposure to lead paint in their apartment in a two-family house, located at 369 Troutman Street in Brooklyn, that was rented from the appellant, Walter Poschmann.

It was incumbent upon the plaintiffs, in opposition to the appellant's prima facie showing of entitlement to summary judgment, to lay bare their proof as to the appellant's actual or constructive notice of the lead paint hazard (see, Andrade v. Wong, 251 A.D.2d 609, 675 N.Y.S.2d 112;  Brown v. Marathon Realty, 170 A.D.2d 426, 565 N.Y.S.2d 219;  see also, Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 649 N.Y.S.2d 115, 672 N.E.2d 135).   The plaintiffs failed to meet this burden.

Although the appellant had notice that paint was peeling or flaking from surfaces within the premises, notice “of chipping and peeling paint is not the equivalent of notice of a dangerous lead paint condition” (Durand v. Roth Bros. Partnership Co., 265 A.D.2d 448, 449, 696 N.Y.S.2d 234;  see also, Roberts v. Pius, 267 A.D.2d 292, 699 N.Y.S.2d 880;  Smith v. Saget, 258 A.D.2d 641, 685 N.Y.S.2d 793;  Hines v. RAP Realty Corp., 258 A.D.2d 440, 684 N.Y.S.2d 594;  Andrade v. Wong, 251 A.D.2d 609, 675 N.Y.S.2d 112;   Busto v. Tamucci, 251 A.D.2d 441, 674 N.Y.S.2d 406).   Furthermore, the appellant promptly remedied the hazardous condition when first notified that the paint contained lead (see, Brown v. Marathon Realty, supra).   Accordingly, summary judgment should have been granted to the appellant.

MEMORANDUM BY THE COURT.