SINGER v. MORRIS AVENUE EQUITIES (2010)

Defendants' motion for summary judgment, pursuant to CPLR 3212, seeking to dismiss the complaint, is denied.

Infant plaintiff alleges that she was injured as a result of exposure to lead paint in apartments owned and managed by the defendants. Infant plaintiff resided in apartment 1B from her birth in September 1995 until moving into apartment 2C in December 1996. Based upon the medical records exchanged in discovery and submitted with the defendants' moving papers, the infant plaintiff had a blood lead level of 3ug/dl in blood drawn on July, 25, 1997. In November of 1999 the lead level was 1ug/dl, and in August 2000, 4ug/dl. On August 12, 2002, just weeks before her 7th birthday, plaintiff had a blood lead level of 9ug/dl¹ . The lead level spiked to 15ug/dl in November of 2002 and slowly decreased thereafter.

Defendants argue that plaintiff's complaint must be dismissed because the defendants did not have the requisite notice of the dangerous condition, i.e., deteriorated lead paint. Critical to defendants' motion is the applicability of Local Law 1 of 1982² Defendants argue that Local Law 1 is inapplicable to the facts herein and that the presumption of notice is unavailable to the plaintiff. Defendants deny actual notice and argue that plaintiff's claims based upon common law negligence must also fail.

The gravamen of defendants' argument is that the plaintiff's blood lead level did not reach 10ug/dl or greater until she was seven years of age and not covered under Local Law 1 which, according to the defendants, only applies to children six and under. Central to defendants' argument is their contention, contained in counsel's affirmation in support of the motion, that “[t]here is no evidence of any lead exposure prior to November 2002.” As noted above, this claim is simply not supported by the record as there is ample evidence that the plaintiff was exposed to lead beginning prior to July of 1997. Presumably the defendants mean that there is no evidence of a blood lead level of 10ug/dl or greater prior to November of 2002.

Defendants argue that a blood lead level of less than 10ug/dl is, as a matter of law, not actionable. Defendants cite Santiago v. New York City Board of Health, 8 AD3d 179, wherein the Appellate Division, First Department affirmed the dismissal of plaintiff's case where there was no reliable evidence that the plaintiff ever had a blood level above 3ug/dl. In Arce v. New York City Housing Authority, 265 A.D.2d 281, the Appellate Division, Second Department dismissed the complaint after trial based upon the insufficiency of plaintiff's evidence of elevated blood lead levels. Several trial courts have specifically rejected defendants' interpretation of Arce. See, Peri v. City of New York, 8 Misc.3d 369; Rhys v. Rossi, 2009 WL 2980510. In Cunningham v. Spitz, 218 A.D.2d 639, (2nd Dept 1995) the court held that a triable issue fact existed as to whether plaintiff was injured as a result of his exposure to lead, notwithstanding the fact that his blood-lead level did not fall within scientifically accepted definitions of lead poisoning. While the plaintiff does not dispute that the New York City Health Code defines lead poisoning as 10 micrograms per deciliter or higher, plaintiff argues that triable issues of fact exist as to whether the plaintiff has suffered an injury causally related to her exposure to lead paint in the defendants' apartments. There is no appellate authority which compels the court to rule that a blood lead level of 9ug/dl, which plaintiff had prior to her seventh birthday, is not actionable as a matter of law. In the absence of any such authority, that issue will be left for determination by the finder of fact.

Assuming arguendo that a plaintiff must demonstrate “lead poisoning,” as that term is defined in the Health Code to maintain a cause of action, there is still a triable issue of fact as to whether the15ug/dl of lead in plaintiff's blood in November, 2002 was a result of her exposure prior to September, 2002, her seventh birthday. In opposition to the motion plaintiff cites Guzman v. 560 Realty Co., 175 Misc.2d 969, for the proposition that the applicability of Local Law 1 is not determined based upon the child's age at the time of the blood tests but rather upon the age at the time of exposure. In Guzman, ownership of the building changed while the infant resided in the building. Initially, plaintiff named only the new owner as a party defendant but then sought leave to serve an amended complaint upon the original owner alleging a cause of action that accrued during that landlord's ownership of the building, despite the fact that the first elevated blood level was not documented until several years after the change in ownership. That case is distinguishable, in that the child was still less than seven when elevated lead levels were found. However this court agrees that it is the date of the exposure to the lead paint hazard, not the date of the testing which reveals the elevated blood lead levels, that determines the applicability of Local Law 1. It would be a matter of proof at trial whether the pre-age seven exposure caused the post-age seven blood lead levels.

Even were the court to agree with the defendants that the plaintiff was not entitled to the presumptions contained in Local Law 1, defendants have failed to establish a prima facie entitlement to judgment under the common law standard as articulated in Chapman v. Silber, 97 N.Y.2d 9. Specifically with regard to notice, in viewing the record in a light most favorable the plaintiff, there is evidence upon which the fact finder could conclude that the defendants had notice of dangerous peeling lead paint in plaintiff's apartment based upon notice of similar conditions in other apartments in the building. See, County of Oneida v. Ptak, 299 A.D.2d 938; Rodriguez v. Amigo, 244 A.D.2d 323.

Defendants also seek dismissal based upon an affidavit submitted in support of the motion from Dr. Walter Molofsky, a Board certified neurologist, who examined the plaintiff. Dr. Molofsky alleges that he found no evidence of Attention Deficit Hyperactivity Disorder or that plaintiff suffered any injury “as a consequence of the elevated blood lead levels she evidenced for a six month period at the age of seven.” The court notes that Dr. Molofsky does not claim that the plaintiff's documented blood lead levels prior to November, 2002 could not cause injury to the plaintiff. Having found no injury to the plaintiff, Dr. Molofsky does not address the question of whether the plaintiff's exposure to lead paint could have caused the injuries found by her treating physician, Dr. Sergio Sencion. In opposition to the motion plaintiff submitted an affirmation from Dr. Sencion, who has been the plaintiff's physician since birth. Based upon plaintiff's history, blood lead levels and academic record, Dr. Sencion is of the opinion that plaintiff has suffered neurological injuries stemming from the ingestion of lead paint starting from when she was brought home from the hospital after birth and continuing through his examination on October 7, 2006. The record is clear that there is a triable issue of fact as to whether the plaintiff suffered a neurologic injury and defendants have failed to offer any evidence whatsoever that any such injury was not caused by her exposure to lead paint.

FOOTNOTES

1.  While the report, submitted by the defendants, identifies the patient as Taisha Ramirez, for the purposes of the instant application, it is clear to the court that the report concerns the infant plaintiff herein.

2.  Local Law 1 of 1982 created a rebuttable presumption that in any unit in a multiple dwelling erected prior to January 1, 1960 where a child six years of age or under resides, any peeling paint contains a hazardous level of lead. Defendants argue that the applicable law to be applied is Local Law 38 of 1999, which was declared unconstitutional by the Court of Appeals in NYC Coalition to End Lead Paint Poisoning, Inc., v. Vallone, 100 N.Y.2d 337. This court cannot base its decision on an unconstitutional law. The Court of Appeals specifically recognized that, by operation of law, the invalidation of Local Law 38 revived Local Law 1.

EDGAR G. WALKER, J.