RANDOLPH v. Dewhol Realty, Inc., third-party defendant-respondent.

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

Elias RANDOLPH, etc., et al., plaintiffs, v. Edward ST. HILL, defendant and third-party plaintiff-appellant; 834-48 Nostrand and Eastern Corporation, third-party defendant; Dewhol Realty, Inc., third-party defendant-respondent.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and GLORIA GOLDSTEIN, JJ. Carole A. Burns & Associates, Mineola, N.Y. (John P. Koester of counsel), for defendant third-party plaintiff and second third-party plaintiff-appellant. Armienti & Brooks, P.C., New York, N.Y. (Catalina T. Soriano and Peter P. Traub, Jr., of counsel), for second third-party defendant-respondent.

In a third-party action for contribution and indemnification, the defendant second third-party plaintiff appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated December 8, 1997, which, inter alia, granted the cross motion of the second third-party defendant Dewhol Realty, Inc., for summary judgment dismissing the second third-party complaint.

ORDERED that the order is affirmed, with costs.

Administrative Code of the City of New York § 27-2013(h) creates a rebuttable presumption that in any apartment in a multiple dwelling erected in the City of New York before 1960, in which a child who is six years of age or under resides, any peeling paint or similar surface-coating material comprises a hazardous lead condition (see, Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 647, 649 N.Y.S.2d 115, 672 N.E.2d 135).   In the case at bar, there was no proof that a child age six or under resided at the subject apartment.

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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