| Robinson v Bartlett |
| 2012 NY Slip Op 03916 [95 AD3d 1531] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—Milan Robinson, an Infant, by Vonda Chapman, HisParent and Guardian, Appellant, v Michael Bartlett et al.,Respondents. |
—[*1] Flink Smith, L.L.C., Albany (Edward B. Flink of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Giardino, J.), entered June 27,2011 in Schenectady County, which, among other things, partially denied plaintiff's motion forpartial summary judgment.
In December 1993, plaintiff's mother, while pregnant with him, moved into an apartmentowned and managed by defendants in the City of Schenectady, Schenectady County. Somemonths after plaintiff was born and while living with his mother in this apartment, tests wereperformed that indicated that he had elevated levels of lead in his blood.[FN1] As a result of [*2]these findings, the Schenectady County PublicHealth Services Environmental Health Unit inspected the apartment and found the presence oflead-based paint in the bedroom and the living room and, by letter dated April 10, 1996, directeddefendants to immediately commence abatement proceedings to remove it from the premises.Thereafter, plaintiff and his family moved from the apartment.
In April 2009, when plaintiff was 15 years old, he commenced this action seeking damagesfor neurological and neurobehavioral injuries he claims to have sustained as a result of beingexposed to lead-based paint while he lived in the apartment. After discovery was complete and anote of issue was filed, plaintiff moved for summary judgment on the issue of defendants' legalresponsibility for these injuries and for the dismissal of four affirmative defenses raised inresponse to the allegations set forth in the complaint. Plaintiff also requested that Supreme Courttake judicial notice of certain legislative findings, statutes and regulations, as well as the FederalLead-Based Paint Enforcement Bench Book and reports regarding lead paint exposure issued bythe New York State Department of Health (hereinafter DOH) and the Centers for DiseaseControl (hereinafter CDC). In addition, plaintiff sought to preclude defendants' experts fromtestifying regarding their contention that socioeconomic factors—and not exposure tolead-based paint—caused plaintiff's developmental and behavioral deficiencies or, in thealternative, that a Frye hearing be held to determine whether the testimony of theseexperts was admissible. Although Supreme Court found that defendants were on notice that alead-based paint was present in the apartment while plaintiff lived there, it denied that part ofplaintiff's motion seeking summary judgment on the issue of whether defendants were liable forthe damages he allegedly sustained while living in the apartment, finding that factual issuesexisted as to whether plaintiff's exposure to lead-based paint caused his injuries. The court alsofound that a question of fact existed as to whether plaintiff had "engaged in behaviors thatthwarted mitigation of his damages," and denied his motion for summary judgment dismissingthat affirmative defense. Finally, the court refused to take judicial notice of materials submittedby plaintiff from the DOH and CDC, and denied his motion to preclude defendants' experts fromtestifying, as well as his request for a Frye hearing. Plaintiff now appeals.
Initially, defendants argue in their submissions to this Court that Supreme Court's decision togrant plaintiff summary judgment on the issue of notice is not supported by the credible evidencein the record. In that regard, it "is well settled that in order for a landlord to be held liable forinjuries resulting from a defective condition upon the premises, the plaintiff must establish thatthe landlord had actual or constructive notice of the condition for such a period of time that, inthe exercise of reasonable care, it should have been corrected" (Juarez v Wavecrest Mgt.Team, 88 NY2d 628, 646 [1996]). Constructive notice of a hazardous, lead-based paintcondition may be established by proof "that the landlord (1) retained a right of entry to thepremises and assumed a duty to make repairs, (2) knew that the apartment was constructed at atime before lead-based interior paint was banned, (3) was aware that paint was peeling on thepremises, (4) knew of the hazards of lead-based paint to young children and (5) knew that ayoung child lived in the apartment" (Chapman v Silber, 97 NY2d 9, 15 [2001]; see Williamson v Ringuett, 85 AD3d1427, 1428 [2011]; Charette vSantspree, 68 AD3d 1583, 1584 [2009]; Wynn v T.R.I.P. RedevelopmentAssoc., 296 AD2d 176, 180 [2002]). Here, Supreme Court found, based on evidence thatplaintiff presented, that defendants knew of the dangers that lead-based paint posed to youngchildren, that the building was constructed prior to 1978 and that defendants retained the rightduring the relevant time period to enter the premises to perform necessary repairs. In addition,plaintiff's mother testified that defendants knew she was pregnant when she moved into theapartment and ignored her complaints about paint dust and chips on the [*3]windows and floors in the apartment.
Defendants do not admit, but do not deny, that plaintiff's mother complained to them aboutthe condition of the apartment and acknowledged that they were aware of the hazards thatlead-based paint posed for a young child. They admit that they may have known that plaintiff'smother was pregnant when she moved into the apartment, but do not recall performing anyrepairs or renovations on the apartment while she resided there. Finally, defendants do not recall,but again do not deny, receiving a letter from the Schenectady County Public Health Servicesindicating that lead-based paint had been used in the apartment and directing them to remove it.While defendants claim that plaintiff's testimony is not credible, they have failed to submit anycompetent evidence that contradicts her essential contentions on this issue. More importantly, thenotification from the Schenectady County Public Health Services, which they do not denyreceiving, clearly put them on notice of this condition and did so at a time when plaintiff stillresided on the premises. As such, Supreme Court properly found that defendants had notice thatlead-based paint was on the walls and windows of plaintiff's apartment and of the danger it posedto plaintiff while he lived there.
On the issue of liability, we agree with Supreme Court that a question of fact exists as towhether plaintiff's exposure to lead-based paint while he lived in the apartment caused hisinjuries. In that regard, plaintiff submitted an affidavit from a licensed clinical psychologist whoexamined him and administered a number of tests. This expert diagnosed plaintiff with a maladyof cognitive and developmental disorders, including attention deficit hyperactivity disorder(hereinafter ADHD), and concluded that he had a "poor prognosis of remediation of his cognitivedeficits." The expert concluded that "[o]f all known and relevant factors, [plaintiff's] chronicallyand significantly elevated blood lead levels are the most likely" cause of these disorders, and heclaimed that elevated blood levels during childhood "have been well-documented as a significantcausal factor in the development of serious and chronic developmental and cognitiveimpairments." In support of this conclusion, plaintiff's expert relied on "government endorsedscientific literature, including . . . the 2005 CDC statement relating to effects of leadpoisoning; and . . . the 2007 [profile of the Agency for Toxic Substance and DiseaseRegistry] relating to the toxicology of lead."
Plaintiff also submitted an affidavit from a board-certified pediatrician, who reviewedrelevant medical records and reports and concluded that "lead poisoning causes neuropathy anddamage to the brain" and noted the lack of any established link of socioeconomic and geneticfactors as causing the neurological affects that can be caused by exposure to lead paint. Theseopinions provided a scientific as well as a medical basis for the conclusion that plaintiff'sexposure to lead paint while he lived in defendants' apartment caused his injuries (see Juarezv Wavecrest Mgt. Team, 88 NY2d at 648; Wynn v T.R.I.P. Redevelopment Assoc.,296 AD2d at 184-185).
Defendants do not contend that plaintiff does not suffer from these cognitive deficits anddevelopmental disabilities, but argue that they were caused not by lead paint, but bysocioeconomic factors attendant to his family life. In that regard, they submitted affidavits fromtwo neuropsychologists—one who specialized in pediatric neurology—whoexamined plaintiff and reviewed relevant medical records. One expert found that plaintiffdemonstrated "average intellectual and cognitive capability, in the context of a language-basedlearning disorder." He pointed to familial, hereditary or idiopathic causes of such learningdisorders that he argues were "unrelated to his history of mildly elevated lead levels," and claimsthat plaintiff's behavioral [*4]difficulties were caused by hisexposure to "chronic environmental stress" and were the end product of "a long history ofmarked family turmoil." Defendants' other neuropsychologist found that plaintiff "had verymodest lead exposure which would not be expected to have any clinical [detrimental] affect onhis behavior, cognitive or academic abilities," and noted the CDC's claim that "efforts to identifya 'neurobehavioral signature' of children with [elevated blood lead levels] have generally beenunsuccessful." These opinions are not, as plaintiff claims, based entirely on speculation orconjecture, but in part, are supported by relevant scientific literature, some of which was reliedupon by plaintiff's own experts in the formulation of their opinions regarding the cause of hisinjuries (see generally Cunningham vAnderson, 85 AD3d 1370, 1371 [2011], lv dismissed and denied 17 NY3d 948[2011]; Bygrave v New York City Hous.Auth., 65 AD3d 842, 844-845 [2009]). As a result, this evidence served to create anissue of fact as to whether plaintiff's cognitive and behavioral difficulties were caused by hisexposure to lead-based paint while he lived in this apartment, and plaintiff's motion for partialsummary judgment finding defendants liable for his injuries was therefore properly denied(see Walton v Albany Community Dev. Agency, 279 AD2d 93, 95-96 [2001]).
As for that part of plaintiff's motion seeking dismissal of defendants' affirmative defenseregarding mitigation of damages, defendants allege that plaintiff, while a teenager, "at a timewhen [he] could be held legally responsible for his actions" (Cunningham v Anderson, 85AD3d at 1372; see Dutcher v Vandeloo, 34 Misc 3d 1223[A], 2012 NY Slip Op50210[U], *6 [2012]), failed to "follow up with recommended medical treatment" and "availhimself of all methods of treatment, counseling, intervention and other educational basedservices and generally accepted methods of treat[ment]." In that regard, plaintiff admits usingmarihuana since he was in seventh grade and acknowledges not complying with all of histreatment regimens or taking his medication as prescribed. Such evidence does provide a factualbasis for defendants' claim that plaintiff has not made a reasonable effort to mitigate the damageshe may have sustained as a result of his exposure to lead paint, and plaintiff's motion seekingdismissal of this affirmative defense was appropriately denied.
Plaintiff also moved to preclude defendants' experts from testifying or, in the alternative, fora Frye hearing to determine the admissibility of their testimony.[FN2] In that regard, we note that "[t]he admissibility and scope of [expert] testimony is addressed tothe trial court's sound discretion and will not be disturbed on appeal absent an abuse of thatdiscretion or an error of law" (Jackson vNutmeg Tech., Inc., 43 AD3d 599, 600-601 [2007]). Here, Supreme Court found, aspreviously noted, that defendants' experts relied in part on the same scientific literature employedby plaintiff's experts in formulating their final opinion regarding the impact that exposure to leadpaint had on plaintiff. Also, in denying plaintiff's request for a Frye hearing, the courtspecifically stated that defendants' experts would only be allowed to testify if a proper [*5]foundation were established for the admission of their testimony attrial (see Jackson v Nutmeg Tech., Inc., 43 AD3d at 600-601).
Finally, plaintiff challenges Supreme Court's refusal to take judicial notice of certaingovernmental materials that focused on lead paint—and its effects on individuals exposedto it. Supreme Court found that these materials were not "legally or scientifically current," and itsdetermination that they were not entitled to conclusive effect did not constitute an abuse ofdiscretion (see Sleasman v Sherwood, 212 AD2d 868, 870 [1995]).
Peters, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: An elevated lead level is "ablood lead level greater than or equal to [10] micrograms . . . per deciliter [mcg/dcl]of whole blood" (Public Health Law § 1370 [6]; see 10 NYCRR 67-1.1 [e]). InOctober and November 1995, plaintiff's blood lead level measured 11 mcg/dcl. By March 1996,plaintiff's blood lead level had spiked to 16 mcg/dcl but, thereafter, decreased to nine mcg/dcl,then to six mcg/dcl and ultimately to three mcg/dcl.
Footnote 2: Although an order determiningthe admissibility of evidence is generally not appealable, Supreme Court concluded that thisexpert testimony served to create an issue of fact as to what caused plaintiff's injuries and reliedupon its admissibility to deny plaintiff's motion for partial summary judgment. Given the crucialrole this testimony played in that determination, plaintiff can, at this juncture, argue on appealthat the court erred in finding that it was admissible (see CPLR 5701; Jackson v Nutmeg Tech., Inc., 43AD3d 599, 600 n [2007]).