| Kydd v Daarta Realty Corp. |
| 2009 NY Slip Op 02563 [60 AD3d 997] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Christopher Kydd, Respondent, v Daarta Realty Corp. etal., Appellants, et al., Defendants. |
—[*1] Martin L. Ginsberg, P.C., Kew Gardens, N.Y. (Susan R. Nudelman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Daarta Realty Corp. andAbraham Lasker appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Hinds-Radix, J.), dated July 10, 2008, as denied that branch of theirmotion which was for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellants' motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Abraham Lasker, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
The Supreme Court properly denied that branch of the appellants' motion which was forsummary judgment dismissing the complaint insofar as asserted against the defendant DaartaRealty Corp. (hereinafter Daarta). In support of its claim that it was entitled to summaryjudgment because the infant plaintiff had suffered no cognitive, behavioral, or physical injuriesas a result of his exposure to lead, Daarta relied upon the expert affidavit of a neuropsychologistwho concluded that the child was suffering from a pervasive developmental disorder consistentwith autism unrelated to his exposure to lead. Although the neuropsychologist's affidavitindicated that he had reviewed records relating to the infant plaintiff's medical history in forminghis opinion, he failed to identify any of these records. Thus, there was no evidentiary foundationfor his conclusion that the infant [*2]plaintiff's "pervasivedevelopmental delay (autism) developed long prior to his history of elevated lead levels." Theneuropsychologist also failed to discuss the levels of lead in the infant plaintiff's blood, or toexplain why the levels of lead the child was exposed to could not have caused and/orexacerbated his alleged delay and cognitive deficits. Furthermore, the neuropsychologist'saffidavit did not indicate the training and experience he had in diagnosing lead-poisoninginjuries in children. Under these circumstances, the neuropsychologist's conclusory opinion thatthe infant plaintiff's developmental disorder was not in any way related to his history of elevatedblood lead levels was insufficient to make a prima facie showing of Daarta's entitlement tojudgment as a matter of law (see Baez v Sugrue, 300 AD2d 519, 520-521 [2002];Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d 176, 184 [2002]; Walton vAlbany Community Dev. Agency, 279 AD2d 93 [2001]; see also Juarez v WavecrestMgt. Team, 88 NY2d 628 [1996]).
However, the court should have granted that branch of the motion which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant Abraham Lasker. Asa general rule, liability for a dangerous or defective condition on real property must bepredicated upon ownership, occupancy, control, or special use of that property (see Gover vMastic Beach Prop. Owners Assn., 57 AD3d 729 [2008]; Dugue v 1818 Newkirk Mgt.Corp., 301 AD2d 561 [2003]). Where none of these factors are present, a party cannot beheld liable for injuries caused by a dangerous or a defective condition (see Gover v MasticBeach Prop. Owners Assn., 57 AD3d 729 [2008]; Dugue v 1818 Newkirk Mgt.Corp., 301 AD2d 561 [2003]). Lasker made a prima facie showing of his entitlement tojudgment as a matter of law by submitting his deposition testimony establishing that he did notbecome managing agent of the subject apartment building until March 2001, after the infantplaintiff was exposed to lead-based paint. In opposition, the plaintiffs failed to submit anyevidence to raise a triable issue of fact as to whether Lasker exercised any control over thepremises at the time the infant plaintiff was exposed to lead. Mastro, J.P., Covello, Eng andLeventhal, JJ., concur.