BROWN v. PAUL

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

Juanita Timika BROWN, etc., et al., Appellants, v. Anthony PAUL, Respondent, et al., Defendant.

Decided: January 22, 2002

MYRIAM J. ALTMAN, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, and HOWARD MILLER, JJ. Mark E. Weinberger, P.C., Great Neck, N.Y. (Larry Bonchonsky and Marc J. Musman of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Gregory S. Katz and Meredith Drucker of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated August 9, 2000, which granted the motion of the defendant Anthony Paul for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the respondent.

 The infant plaintiff allegedly suffered lead poisoning as a result of exposure to lead paint in her apartment in a building owned by the respondent.   To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition (see, Chapman v. Silber, 97 N.Y.2d 9, 734 N.Y.S.2d 541, 760 N.E.2d 329;  Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 649 N.Y.S.2d 115, 672 N.E.2d 135;  Bellony v. Siegel, 288 A.D.2d 411, 732 N.Y.S.2d 647 [2d Dept., 2001] ).   The respondent correctly contends that he cannot be charged with constructive notice of the alleged lead-paint condition pursuant to the Administrative Code of the City of New York, since the building is not a multiple dwelling (see, Juarez v. Wavecrest Mgt. Team, supra).   However, even in the absence of any applicable legislation, the plaintiffs raised a triable issue of fact as to whether the respondent had constructive notice under the circumstances of this case (see, Chapman v. Silber, supra).   Therefore, the respondent's motion for summary judgment dismissing the complaint insofar as asserted against him should have been denied.

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