| Derr v Fleming |
| 2013 NY Slip Op 03371 [106 AD3d 1240] |
| May 9, 2013 |
| Appellate Division, Third Department |
| Randi Derr, Respondent-Appellant, v Clarence E. Fleminget al., Appellants-Respondents. |
—[*1] Athari & Associates, LLC, Utica (Mo Athari of counsel), forrespondent-appellant.
Mercure, J.P. Cross appeals from an order of the Supreme Court (O'Shea, J.), enteredJune 20, 2012 in Chemung County, which, among other things, denied plaintiff's motionfor partial summary judgment.
In 1991, when plaintiff was two years old, blood tests revealed that she had a highlead level. She was hospitalized and admitted to the lead program at the ChemungCounty Health Department (hereinafter CCHD), which performed an inspection ofplaintiff's home, an apartment in a house owned by defendants. The inspection revealedthat the house was in poor condition, cluttered and dirty, with "a great deal of pealing[sic] paint & plaster & wallpaper in th[e] home as well as on the front porch & aroundthe side of the house." Testing showed positive lead results for a number of paint samplestaken from interior and exterior areas of the apartment, and a rowboat that plaintiff'sfather was restoring in the back yard.
CCHD notified defendants, as the owners of the property, of the presence of leadpaint in the house. After defendant Clarence E. Fleming and his son completed theabatement work on the apartment by covering the existing paint with lead-free paint,CCHD inspected and approved the repairs. Nevertheless, plaintiff's medical records,which she provided through 1995, showed that she had consistently elevated lead levelseven after the abatement work was completed. Her [*2]family moved out of defendants' apartment in 2000.
Plaintiff commenced this action in 2008, and subsequently moved for partialsummary judgment, among other things. Defendants cross-moved for summary judgmentdismissing the complaint. Supreme Court denied both motions, and the parties nowcross-appeal.
We affirm. Initially, we reject the parties' arguments that Supreme Court erred indenying their respective motions for summary judgment on notice and causation.Defendants assert that plaintiff is unable to prove either notice or that any negligence ondefendants' part was a substantial factor in bringing about her alleged injuries; plaintiffcontends that she has established both constructive notice and causation. With respect tonotice, "[i]t is well settled that in order for a landlord to be held liable for injuriesresulting 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 timethat, in the exercise of reasonable care, it should have been corrected" (Juarez vWavecrest Mgt. Team, 88 NY2d 628, 646 [1996]; see Cunningham v Anderson,85 AD3d 1370, 1371 [2011], lv dismissed and denied 17 NY3d 948 [2011]).In this context, constructive notice may be demonstrated by a showing "that the landlord(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knewthat the apartment was constructed at a time before lead-based interior paint was banned,(3) was aware that paint was peeling on the premises, (4) knew of the hazards oflead-based paint to young children and (5) knew that a young child lived in theapartment" (Chapman v Silber, 97 NY2d 9, 15 [2001]; accord Robinson v Bartlett, 95AD3d 1531, 1533 [2012]).
In our view, Supreme Court properly determined that questions of fact exist withrespect to constructive notice (see Robinson v Bartlett, 95 AD3d at 1533-1534;Williamson v Ringuett, 85AD3d 1427, 1428-1429 [2011]; Cunningham v Anderson, 85 AD3d at1371-1372; Jackson vBrown, 26 AD3d 804, 805 [2006]). Defendants denied knowledge of the thirdand fourth Chapman criteria prior to notice from CCHD—that paint waspeeling on the premises and that lead paint posed a hazard to children—andFleming could not recall whether they knew a young child was living in the apartment.On appeal before us, defendants primarily challenge plaintiff's ability to establish thefourth criteria enumerated in Chapman, i.e., that defendants had prior knowledgethat lead paint was hazardous. Plaintiffs, however, presented evidence from whichknowledge that lead paint was hazardous could be inferred; specifically, althoughFleming denied ever reading lead paint warnings on any paint cans, he acknowledgedthat he owned at least 20 rental properties, and that it was his practice to clean and painteach unit between tenants. In addition, defendant Rosalyn Fleming submitted an affidavitstating that defendants painted the apartment before plaintiff's family moved into it.
In any event, CCHD informed defendants in December 1991 that peeling andchipping lead paint was present in the apartment and creating a hazardous condition toplaintiff. Defendants assert that CCHD inspected and approved their abatement work,which consisted of repainting certain areas of chipping paint on the interior and exteriorof the house, and was completed by the spring of 1992, and that their daughter thereaftervisited the unit on a regular basis to inspect for chipping paint. Defendants did not,however, hire an expert or attempt more thorough or durable methods of abatement.Moreover, it is undisputed that plaintiff's lead levels [*3]remained elevated through June 1995.[FN*]Under these circumstances, a question of fact exists regarding whether defendants'abatement work and subsequent inspections were negligently performed, leading toadditional exposure after defendants received notice from CCHD (see La Fountaine vFranzese, 282 AD2d 935, 936-938 [2001]).
Similarly, Supreme Court properly determined that issues of fact exist with respect tocausation. Plaintiff established prima facie causation through evidence that a number ofpaint samples taken by CCHD from the apartment tested positive for lead, that she hadchronically elevated lead levels while residing at the apartment beginning with the firsttime that she was tested for lead at two years of age, that her parents observed her playingin areas that tested positive for lead paint and putting her fingers in her mouth, and thather sister saw her putting paint chips in her mouth (see Juarez v Wavecrest Mgt.Team, 88 NY2d at 648; Charette v Santspree, 68 AD3d 1583, 1586 [2009];Walton v Albany Community Dev. Agency, 279 AD2d 93, 95 [2001]). Inresponse, defendants presented evidence that plaintiff was prone to touch and play withthe ashes from her mother's cigarettes, and that plaintiff's father was scraping or sandingan old rowboat in the family's backyard—where the children played—bothprior and subsequent to defendants' completion of abatement work. In addition tosamples from the residence, the paint on the boat also tested positive for lead. Whileplaintiff provided an expert affirmation from a pediatrician who was experienced intreatment of lead paint poisoning cases and concluded that it was unlikely that the boatwork could have caused plaintiff's blood lead neurotoxicity, defendants presentedaffidavits from a physician and neuropsychologist indicating that the seasonalfluctuations in plaintiff's lead levels strongly suggested that paint dust from the boat andcigarette ashes were the primary sources of exposure after abatement. Under thesecircumstances, neither party has established entitlement to summary judgment on theissue of causation (see Cunningham v Anderson, 85 AD3d at 1373-1374).
Finally, Supreme Court did not err in denying plaintiff's request to dismiss theaffirmative defenses of lack of injury and that plaintiff and her parents contributed to herinjuries, or for a protective order preventing defendants from introducing evidence of theimpact that socioeconomic and environmental factors had on plaintiff's behavioralproblems, or cognitive and academic abilities. As we recently explained, plaintiff'srequest for a "protective order" amounts to "a motion in limine preventing certainevidence from being raised at trial," and is "overbroad and would . . .prevent[ ] legitimate defenses from being pursued" (Van Wert v Randall, 100 AD3d 1079, 1082 [2012]; seeRobinson v Bartlett, 95 AD3d at 1535-1536; see also Cunningham vAnderson, 85 AD3d at 1374-1375). Regarding the affirmative defenses, to the extentthat defendants argue that plaintiff had a duty to mitigate her damages beginning at theage of four, their argument is patently absurd. Nevertheless, while that affirmativedefense should be limited, we have repeatedly held that "defendants are permitted toattempt to show that [plaintiff] later caused or exacerbated some of her injuries when shewas a teenager, through actions such as" refusing to attend school and foregoingeducational opportunities (Van Wert v Randall, 100 [*4]AD3d at 1081; see Robinson v Bartlett, 95 AD3d at1534-1535; Cunningham v Anderson, 85 AD3d at 1372). Inasmuch as plaintifffailed to demonstrate that the affirmative defenses lack merit as a matter of law, she isnot entitled to their dismissal (see Van Wert v Randall, 100 AD3d at 1081).
The parties' remaining arguments have been considered and found to be lacking inmerit.
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Plaintiff's blood leadlevel peaked at 38 micrograms per deciliter (hereinafter mcg/dcl) in December 1991, andremained in the mid-to-high 20s mcg/dcl level through July 1993, before falling back to18-23 mcg/dcl after March 1994. As we have previously noted, an elevated level is ablood lead level greater or equal to 10 mcg/dcl (see Public Health Law §1370 [6]; Robinson v Bartlett, 95 AD3d at 1532 n 1).