| Shafi v Motta |
| 2010 NY Slip Op 03895 [73 AD3d 729] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Nomaan Shafi and Another, Infants, by Their Parents and NaturalGuardians, Nasira Naheed et al., Respondents, v Joseph Motta, Administrator C.T.A. ofthe Estate of Frances Ventura, Deceased, et al., Appellants. |
—[*1] Mark J. Rayo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.),dated March 24, 2009, as denied their motion for summary judgment dismissing the complaintinsofar as asserted on behalf of the infant plaintiff Nomaan Shafi and as asserts derivative claimsarising from injuries to the infant plaintiff Nomaan Shafi.
Ordered that the order is affirmed insofar as appealed from, with costs.
The City of New York requires that the owner of a multiple dwelling remove or cover paintcontaining specified hazardous levels of lead in any apartment in which a child six years of ageor younger resides (see Administrative Code of City of NY former § 27-2013 [h][as added by Local Law No. 1 (1982) of the City of New York], now §§ 27-2056.3,27-2056.18 [hereinafter Local Law 1]; Juarez v Wavecrest Mgt. Team, 88 NY2d 628,641-642 [1996]; O'Neal v New YorkCity Hous. Auth., 4 AD3d 348 [2004]). Violation of Local Law 1, however, does notresult in absolute liability for injuries caused by exposure to lead (see Juarez v WavecrestMgt. Team, 88 NY2d at 643). Rather, a plaintiff must establish that the landlord had actualor constructive notice of the condition for a period of time such that, in the exercise ofreasonable care, the condition should have been remedied (see Juarez v Wavecrest Mgt.Team, 88 NY2d at 646). Nevertheless, Local Law 1 imputes to a landlord constructivenotice of a hazardous condition in certain circumstances where the landlord has actual notice thata child under the age of six resides in the unit (see Juarez v Wavecrest Mgt. Team, 88NY2d at 647; Chadwick v Sabin, 304 AD2d 603, 603-604 [2003]).
On their motion for summary judgment, the defendants had the burden of establishing, byproof in admissible form, their prima facie entitlement to judgment as a matter of law(see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 561 [1980];Myers v Ferrara, 56 AD3d 78,83 [2008]). This burden may be satisfied only by the defendant's affirmative demonstration ofthe merit of the defense, rather than merely by reliance on gaps in the plaintiffs' case (see DeFalco v BJ's Wholesale Club,Inc., 38 AD3d 824, 825 [2007]; Cox v Huntington Quadrangle No. 1 Co., 35 AD3d 523, 524[2006]; Pearson v Parkside Ltd. Liab.Co., 27 AD3d 539 [2006]; Mondello v DiStefano, 16 AD3d 637, 638 [2005]). Here, thedefendants submitted [*2]hospital laboratory reports and recordsof the New York City Department of Health and Mental Hygiene. As the Supreme Courtconcluded, however, because these documents were neither certified nor authenticated, and thuswere not in admissible form, they could not be considered on the motion (see CPLR4518 [c]; Banfield v New York City Tr.Auth., 36 AD3d 732 [2007]; Baez v Sugrue, 300 AD2d 519, 520 [2002]; cf. Whitfield v City of New York, 48AD3d 798, 799 [2008]). Moreover, the affirmation of the defendants' attorney submittedwith very brief excerpts of deposition testimony was insufficient to establish the defendants'entitlement to judgment as a matter of law (see Irving v Great Atl. & Pac. Tea Co., 269AD2d 358, 359 [2000]; Cicolello v Limb, 216 AD2d 434 [1995]). Inasmuch as thedefendants failed to carry their burden, denial of the motion was required without regard to thesufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Molina v Belasquez, 1 AD3d 489 [2003]).
The defendants' remaining contention is not properly before this Court, as it was raised forthe first time on appeal. Prudenti, P.J., Fisher, Roman and Sgroi, JJ., concur.