| Harden v Tynatishon |
| 2008 NY Slip Op 02111 [49 AD3d 604] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Gerald Harden, Respondent, v William Tynatishon,Appellant. |
—[*1] Lucchese & D'Ammora, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac] of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Orange County (Owen, J.), dated March 14, 2007, which denied his motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The infant plaintiff was diagnosed with lead poisoning in early 2002 when he and his familywere tenants in a house owned by the defendant. The Orange County Department of Health(hereinafter the DOH) inspected the premises on June 6, 2002, and, by notice dated June 12,2002, informed the defendant that there were "conditions conducive to lead poisoning" at thehouse. The plaintiff's family members subsequently repainted the house.
The plaintiff commenced this action against the defendant to recover damages as a result ofhis exposure to lead paint during the period from 2000 to 2004. The defendant moved forsummary judgment dismissing the complaint on the grounds that he lacked constructive notice ofany dangerous lead-paint condition prior to receiving the DOH notice, and that any lead-paintcondition had been remedied by the tenants before he received that notice. The Supreme Courtdenied the defendant's motion for summary judgment. We affirm.
"[A]bsent controlling legislation, a triable issue of fact is raised when a plaintiff shows that[*2]the landlord (1) retained a right of entry to the premises andassumed a duty to make repairs, (2) knew that the apartment was constructed at a time beforelead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4)knew of the hazards of lead-based paint to young children and (5) knew that a young child livedin the apartment" (Chapman v Silber, 97 NY2d 9, 15 [2001]).
On his motion for summary judgment, the defendant failed to meet his prima facie burden ofestablishing that he lacked constructive notice of a hazardous lead condition at the premises (see Molina v Belasquez, 1 AD3d489 [2003]). Moreover, the defendant failed to demonstrate the absence of triable issues offact, since the deposition testimony of the tenants and of the defendant, submitted on the motion,presented questions of fact as to whether, inter alia, the defendant retained a right of re-entry andassumed a duty to make repairs at the property, and whether he was aware of the presence ofchildren and of the dangers of lead paint (see Molina v Belasquez, 1 AD3d 489 [2003]; Vidal vRodriquez, 301 AD2d 517 [2003]).
In addition, the evidence presented by the defendant failed to demonstrate that he tookreasonable precautionary measures to remedy the hazardous lead condition after he receivedactual notice thereof from the DOH, or that the plaintiff did not sustain any additional injuriesafter the defendant received notice of this condition (see Griffin v Tautel, 301 AD2d 499[2003]; Bellony v Siegel, 288 AD2d 411 [2001]). Thus, the Supreme Court properlydenied the defendant's motion for summary judgment dismissing the complaint. Lifson, J.P.,Ritter, Florio and Carni, JJ., concur.