ALDRICH 14 v. Lorraine A. Ptak, Defendant-Appellant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Bruce ALDRICH and Trudy Aldrich, Individually and as Parents and Natural Guardians of Christopher Aldrich, Jamie Chrisman, and Brandon Aldrich, Infants Under the Age of 14 Years, Plaintiffs-Respondents, v. COUNTY OF ONEIDA, Defendant-Respondent, Lorraine A. Ptak, Defendant-Appellant.

Decided: November 15, 2002

Present GREEN, J.P., WISNER, HURLBUTT, BURNS, and GORSKI, JJ. Law Offices of Craig P. Niederpruem, Utica (Craig P. Niederpruem of Counsel), for Defendant-Appellant. O'Connell and Aronowitz, Albany (Mark G. Richter of Counsel), for Plaintiffs-Respondents. Napierski, Van Denburg & Napierski, L.L.P., Albany (John W. Van Denburgh of Counsel), for Defendant-Respondent.

Plaintiffs commenced this action against defendant County of Oneida (County) and Lorraine A. Ptak (defendant) seeking to recover damages arising from the exposure of their children to lead paint in 1993 while living in an apartment in a building owned by defendant.   In 1992 the County discovered a lead condition in the other apartment in the same building.   Defendant appeals from an order which, upon reargument, adhered to that part of its prior order granting the motion of the County seeking summary judgment dismissing the complaint against it and denied the cross motion of defendant seeking summary judgment dismissing the complaint against her.

 Supreme Court did not abuse its discretion in granting plaintiffs' motion for leave to reargue (see Melendez v. Methodist Hosp., 203 A.D.2d 435, 610 N.Y.S.2d 855;  Ebasco Constructors v. A.M.S. Constr. Co., 195 A.D.2d 439, 440, 599 N.Y.S.2d 866).   Contrary to defendant's contention, “[a] Judge on reargument need not have new material facts presented in order to grant leave to reargue” (Delcrete Corp. v. Kling, 67 A.D.2d 1099, 1099, 415 N.Y.S.2d 148).

 Furthermore, upon reargument, the court properly denied the cross motion of defendant seeking summary judgment dismissing the complaint against her.   Contrary to the contention of defendant, there is a triable issue of fact whether she had constructive notice of a lead paint condition in plaintiffs' apartment arising from her “actual notice of a lead [paint] condition in [the other] apartment in the same building” (Rodriguez v. Amigo, 244 A.D.2d 323, 324, 663 N.Y.S.2d 873;  see Batts v. Intrebor, 297 A.D.2d 692, 747 N.Y.S.2d 537;  see also Lojacono v. Schieder, 281 App.Div. 799, 119 N.Y.S.2d 495).   We reject the further contention of defendant that the court should have adhered to its prior order granting her cross motion because plaintiffs failed to establish the existence of a lead paint condition in their apartment.   Defendant failed to meet her initial burden of proof on this issue and she cannot establish her entitlement to summary judgment by pointing to alleged gaps in plaintiffs' proof (see Frank v. Price Chopper Operating Co., 275 A.D.2d 940, 941, 713 N.Y.S.2d 614).   In any event, there is circumstantial evidence that such a condition existed in the apartment while plaintiffs lived there.   Contrary to the additional contention of defendant, whether it was reasonable for her to rely upon the County's 1992 inspection to discover the full extent of the lead paint condition in her building is for a trier of fact to resolve (see Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324).   We have reviewed defendant's remaining contention and conclude that it is without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.