HANLAN v. PARKCHESTER NORTH CONDOMINIUM INC

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

Maurice HANLAN, etc., et al., Plaintiffs-Appellants, v. PARKCHESTER NORTH CONDOMINIUM, INC., et al., Defendants-Respondents.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Cozen O'Connor, New York (Eric J. Berger of counsel), for Parkchester North Condominium, Inc., respondent. White & McSpedon, P.C., New York (Tracey Lyn Jarzombek of counsel), for Citibank, N.A., respondent.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered August 5, 2005, which granted defendant Parkchester North Condominium's motion and defendant Citibank's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendants having established, prima facie, their entitlement to summary judgment, it was incumbent on plaintiffs to come forward with evidence establishing a material issue of fact requiring a trial (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).   Plaintiffs failed to meet that burden.   Neither Citibank, the mortgagor of the condominium unit, nor Parkchester, the manager of the condominium complex, owned or controlled the premises at issue, or assumed any duty to plaintiffs, such as might serve as a predicate for liability (see Gibbs v. Port Auth. of N.Y., 17 A.D.3d 252, 794 N.Y.S.2d 320 [2005] ).   Furthermore, neither defendant had actual or constructive notice of the lead paint condition alleged to have caused injury (see Chapman v. Silber, 97 N.Y.2d 9, 734 N.Y.S.2d 541, 760 N.E.2d 329 [2001] ).

 Even assuming, arguendo, the applicability of Local Law 1 of 1982 to a condominium complex and to these defendants, the infant plaintiff did not reside in the condominium unit at issue, but instead lived in a unit distinct from that in which the lead paint condition was found.   There is no evidence that any child under seven was a resident of the subject unit (see Housing Maintenance Code [Administrative Code of City of N.Y.] former § 27-2013 [h], now § 27-2056.3, § 27-2056.18).