JENKINS v. ALSTON LLC (2017)

PROCEDURAL POSTURE

Defendant Tien Nguyen moves for summary judgment dismissing plaintiff's complaint as against her. Plaintiff opposes the motion.

Oral argument was heard on June 14, 2017. The Court has also reviewed all submissions of counsel.

FACTUAL BACKGROUND

Defendant Tien Nguyen was sued by plaintiff for alleged lead-paint exposure suffered by him while visiting his aunt and cousins at defendant's rental premises located at 21 Durnan Street, Rochester, New York. While defendant never actually resided at the premises, he and his mother allege that he spent significant time there, including occasional over-night stays.

Litigation involving plaintiff's cousins and Ms. Nguyen for the cousins' exposure to lead paint at 21 Durnan Street predates the instant action. Defendant Nguyen does not dispute that she knew the young cousins were residing in her rental property.

ARGUMENT

Defendant Nguyen contests only one of the so-called “Chapman” factors (see, Chapman v. Silber, 97 NY 2nd 9 (2001) ). This factor, the fifth and final one needed to establish constructive notice of a premises lead-paint hazard to young children, requires that the landlord know a young child lived at the premises.

Defendant Nguyen's contention is that, since plaintiff concededly did not live at 21 Durnan Street, constructive notice of a lead-paint hazard cannot be ascribed to her. She cites case law purportedly supporting her claim that the fifth “Chapman” factor requires actual residence by a plaintiff during childhood to establish the final element of constructive notice, or perhaps the existence of a duty of care.

This argument by defendant Nguyen is specious. The five factors propounded in Chapman were designed to show that a landlord should have been aware of a lead-paint hazard where all said factors were present.

These factors are purely components of a notice requirement ensuring fairness in cases where a landlord, for whatever reasons, did not have actual notice or knowledge of such a hazardous condition. This Court does not believe that they were promulgated to relieve a landlord from premises liability when, although aware of residency by young children, a plaintiff who claims injury never actually resided at the premises in question.

Notice, and only notice, is the rationale behind the “Chapman” factors. Regarding causation, it must be noted that a non-resident plaintiff claiming lead-paint exposure and subsequent injury must still satisfy the heavy burden of causation. In this action, defendant Nguyen alleges that plaintiff actually resided at several rental properties, not owned by her, that were cited by public authorities for lead-paint violations.

Plaintiff may ultimately be unable to prove that his injures were caused by exposure to lead paint at 21 Durnan Street, thus precluding a recovery against Ms. Nguyen. However, causation is a factual issue necessarily reserved to the trial of this matter.

DECISION

Accordingly, it is the Decision the Court that the motion of defendant Tien Nguyen, seeking summary judgment dismissing plaintiff's complaint as against her, be, and it is hereby, DENIED, with prejudice.

This Decision shall constitute the Order of the Court.

John J. Ark, J.