| Charette v Santspree |
| 2009 NY Slip Op 10013 [68 AD3d 1583] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Tracey Charette, as Parent and Guardian of Amber Charette, anInfant, Respondent, v Raymond Santspree et al., Appellants, et al., Defendant. (And aThird-Party Action.) |
—[*1] O'Connell & Aronowitz, Albany (Mark G. Richter of counsel), for respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Williams, J.), entered July 11,2008 in Saratoga County, which denied a motion made by defendants Raymond Santspree andDiane Santspree for summary judgment dismissing the complaint against them.
In September 1996, plaintiff gave birth to her second child (hereinafter the child) whileresiding in a second floor apartment in a building located at 112 Main Street in the City ofCohoes, Albany County that was owned by defendants Raymond Santspree and Diane Santspree(hereinafter collectively referred to as defendants). In May 1998—some four months afterdefendants sold the building to defendant Joseph Marra—tests performed on the childestablished that she had elevated levels of lead in her blood. Plaintiff subsequently commencedthis action against defendants and Marra on behalf of her child, alleging that, while residing inthe building, the child had been poisoned because of her exposure to lead-based paint as well asdust contaminated with lead and, as a result, has been seriously injured. Defendants moved forsummary judgment dismissing the complaint against them, arguing that no evidence has beensubmitted that they had actual or constructive notice of such a condition being present on the[*2]premises or that the child was exposed to any form of leadcontamination while they owned the building. Supreme Court denied defendants' motion and thisappeal ensued. As factual questions abound on both of these issues, defendants' motion wasproperly denied and we affirm.
In Chapman v Silber (97 NY2d 9 [2001]), the Court of Appeals held that, in theabsence of proof that an out-of-possession landlord had actual notice of the existence of ahazardous condition caused by a lead-based paint being used on the landlord's premises, aplaintiff can establish that the landlord had constructive notice of that condition by showing "thatthe landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2)knew that 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 of lead-based paintto young children and (5) knew that a young child lived in the apartment" (id. at 15;see Matter of Robinson v Scafidi, 23 AD3d 827, 828 [2005], lv denied 6 NY3d710 [2006]; Haggray v Malek, 21 AD3d 683, 684-685 [2005]; Wynn v T.R.I.P.Redevelopment Assoc., 296 AD2d 176, 179 [2002]). Plaintiff does not argue that defendantshad actual notice, but does contend that a question of fact exists as to whether they hadconstructive notice that such a condition existed on the premises.
Here, there is no dispute that when they purchased the building in 1981, defendants knewthat it was at least 50 years old and that a lead-based paint could have been previously used onthe premises. Defendants concede that they were aware of the hazard that lead-based paint posedto small children and knew that plaintiff had young children residing in her apartment. Giventhat defendants, throughout their period of ownership, retained the right to enter the premises tomake necessary repairs, all that remains to be decided in connection with their motion forsummary judgment is whether evidence has been presented establishing that they had knowledgethat paint was chipping and peeling at the time that plaintiff resided in her apartment (seeChapman v Silber, 97 NY2d at 15; Wynn v T.R.I.P. Redevelopment Assoc., 296AD2d at 179-180).
Initially, we note our agreement with defendants that any claim made by plaintiff that herchild was exposed to a hazardous condition caused by lead paint inside her second floorapartment—as opposed to the common areas of the entire building—must failbecause plaintiff has not presented any evidence as required that defendants had actualknowledge that paint was chipping or peeling inside her apartment (see Chapman vSilber, 97 NY2d at 15; Jackson v Brown, 26 AD3d 804, 805 [2006]; Matter ofRobinson v Scafidi, 23 AD3d at 828; Haggray v Malek, 21 AD3d at 684; Wynnv T.R.I.P. Redevelopment Assoc., 296 AD2d at 179-180). Defendants denied ever havingsuch knowledge and plaintiff admits never complaining or notifying them about any suchcondition existing inside her apartment (see Matter of Robinson v Scafidi, 23 AD3d at828).
However, plaintiff is not required to show that defendants had actual knowledge that paintwas chipping and peeling if her claim is based on a lead paint hazard existing in common areasof the building (see Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d at 179-180). Inthat circumstance, a landlord's knowledge of the existence of such a hazardous condition incommon areas of a building can be established by constructive knowledge if, among otherthings, the landlord had the right to enter the premises to make necessary repairs. Since suchright would give the landlord regular and unrestricted access to common areas of the building, alandlord's knowledge that paint is chipping and peeling in those areas of the premises can beinferred from proof that, during the time the landlord owned the building, such a condition did,in [*3]fact, exist (see Wynn v T.R.I.P. RedevelopmentAssoc., 296 AD2d at 182).
While defendants deny ever seeing paint chipping or peeling anywhere in the buildingduring the 17 years that they owned the premises, or ever being notified that such a conditionexisted, plaintiff has testified to observing paint chips and dust throughout the front hallway aswell as the front and rear stairways of the building. She testified that this condition existedduring the entire time that she resided in the building and that these areas of the building wereopen and accessible to anyone who entered upon the premises. In addition, the Albany CountyDepartment of Health conducted an inspection of the entire building shortly after it learned ofthe results of the child's blood test and specifically noted the presence of chipping and peelingpaint in common areas of the premises. Also, Diane Santspree admitted that, during the time sheand her husband owned the building—and while plaintiff was a tenant—she wouldenter the building each month to collect rent from her six tenants. Therefore, we are of the viewthat plaintiff has presented competent evidence that raises a factual issue as to whetherdefendants had notice—either actual or constructive—that paint was chipping andpeeling in those areas of their building and that, as a result, a hazardous condition created bylead-based paint existed on the premises.
Finally, defendants contend that plaintiff failed to make any evidentiary showing that herchild's exposure to a lead-based paint hazard occurred while they owned the premises and priorto the building being sold to Marra. Defendants argue that because they did not own the buildingwhen the blood samples were taken from the child that first detected the elevated levels of leadin her blood, they cannot be held liable for any claim for injury as the result of the child'sexposure to a lead-based paint. However, as previously noted, plaintiff testified that she observedpaint chipping and peeling from the walls in the common areas of the building not long after shetook possession of the second floor apartment and that these conditions continued to existthroughout her tenancy. No evidence has been presented to suggest that the condition of thisproperty and, in particular, the common areas of the building, changed or were altered after thebuilding had been sold to Marra. Equally important, plaintiff testified that before the blood testswere performed on her child and while defendants owned the premises, she observed the childcrawling throughout the building and, in particular, in the hallways immediately outside of herapartment.[FN*]While plaintiff acknowledges during this period never seeing her child ingesting paint chips, shedid recall that the child engaged in frequent hand-to-mouth behavior and often put "paint chipsinto her mouth on numerous occasions during our tenancy." As a result, there is a question offact as to whether the child was exposed to a lead paint hazard while defendants held title to thebuilding and were in possession of the premises (see Haggray v Malek, 21 AD3d at 684;Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d at 184).
Defendants' remaining contentions have been reviewed and found to be lacking in merit.
Mercure, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: We cannot conclude, asdefendants urge, that simply because plaintiff failed to introduce evidence of earlier blood testsperformed on the child that it necessarily follows that such tests did not result in elevatedfindings of lead.