BOLER v. MALIK

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

Nancy BOLER, Individually and as Parent and Natural Guardian of Daryl Turner, Plaintiff-Respondent, v. Inder S. MALIK and Paramjeet K. Malik, Defendants-Appellants.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Kathleen A. Burr, Buffalo, for defendants-appellants. Richard J. Lippes, Buffalo, for plaintiff-respondent.

Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint.   Defendants met their initial burden, and “plaintiff failed to raise a triable issue of fact whether defendant[s], as plaintiff's landlord[s], had actual or constructive notice of the dangerous lead paint condition for a sufficient period of time to have remedied it” (Arnold v. Advantage Fed. Credit Union [appeal No. 2], 261 A.D.2d 939, 689 N.Y.S.2d 799).   We reject plaintiff's contention that actual or constructive notice of the dangerous lead condition may be imputed to defendants because defendants were aware of chipping and peeling paint;  defendants are both real estate brokers and landlords of other properties;  defendant Paramjeet K. Malik is a registered nurse;  and, before purchasing the subject property, she received mortgage documents for another property that referred to Federal lead based paint regulations (see, Smith v. Saget, 258 A.D.2d 641, 641-642, 685 N.Y.S.2d 793;  Leeper v. Brady & Burgess Mgt. Corp., 254 A.D.2d 695, 678 N.Y.S.2d 551;  Andrade v. Wong, 251 A.D.2d 609, 609-610, 675 N.Y.S.2d 112;  Lanthier v. Feroleto, 237 A.D.2d 877, 877-878, 654 N.Y.S.2d 531).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: