SMITH v. SAGET

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

Nahshawn SMITH, etc., et al., respondents, v. Nicholas SAGET, et al., appellants.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and GLORIA GOLDSTEIN, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., New York, N.Y. (H. Michael O'Brien, Richard E. Lerner, and Eileen Campbell of counsel), for appellants. Schneider, Kleinick, Weitz, Damashek & Shoot, New York, N.Y. (Brian J. Shoot and James M. Lane of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated January 9, 1998, as denied that branch of their motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was for summary judgment is granted, and the complaint is dismissed.

The plaintiffs commenced this action against the defendants alleging that the infant plaintiff Nahshawn Smith suffered injuries due to lead poisoning as a result of exposure to lead-based paint in premises leased from the defendants.

In opposition to the defendants' prima facie showing of entitlement to summary judgment dismissing the complaint, the plaintiffs failed to raise a triable issue of fact that the defendants had actual or constructive notice of a lead-based paint hazard in the demised premises for a period of time sufficient to have remedied it (see, Andrade v. Wong, 251 A.D.2d 609, 675 N.Y.S.2d 112;   Brown v. Marathon Realty, 170 A.D.2d 426, 565 N.Y.S.2d 219).   The plaintiffs' allegation that the defendants were told about peeling and chipping paint within the demised premises, and the fact that, at the time, there were newspaper articles on the general dangers of lead-based paint was insufficient to establish that the defendants had actual or constructive notice that the subject premises contained a lead-based paint hazard (see, Andrade v. Wong, supra;  Lanthier v. Feroleto, 237 A.D.2d 877, 654 N.Y.S.2d 531;  Brown v. Marathon Realty, supra).

MEMORANDUM BY THE COURT.

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