| Cunningham v Anderson |
| 2011 NY Slip Op 04800 [85 AD3d 1370] |
| June 9, 2011 |
| Appellate Division, Third Department |
| Mykelti Cunningham, an Infant, by His Guardian, Utopia R.Rogers, Appellant, v John K. Anderson, Respondent. |
—[*1] Goldberg & Segalla, L.L.P., Albany (William J. Greagan of counsel), forrespondent.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Connolly, J.), entered April 9,2010 in Albany County, which, among other things, partially denied plaintiff's cross motion for,among other things, partial summary judgment, (2) from a judgment of said court, entered June10, 2010 in Albany County, upon a verdict rendered in favor of defendant, and (3) from that partof an order of said court, entered November 30, 2010 in Albany County, which denied plaintiff'smotion for, among other things, a new trial.
Defendant owned a building and rented an apartment in it to plaintiff's family from 1990,before plaintiff's birth, until 1994, when plaintiff was just over two years old. In June 1993,plaintiff had elevated blood lead levels, which changed over time but generally continued to beelevated until after his family moved out of defendant's building. Plaintiff has since beendiagnosed with attention deficit hyperactivity disorder (hereinafter ADHD), oppositional defiantdisorder, a cognitive disorder and learning disabilities. Plaintiff commenced this action in 2008,alleging that defendant was negligent by failing to inspect and remove lead paint from thebuilding, thereby causing injuries to plaintiff.
Defendant made a motion not relevant to this appeal, prompting plaintiff to cross move [*2]for, among other things, partial summary judgment on the issue ofliability and to dismiss two of defendant's affirmative defenses. Supreme Court largely denied thecross motion, but the court did limit the defense of failure to mitigate damages. Plaintiff appealsfrom that order.[FN1]
After trial, the jury found that defendant received notice of the lead hazard and actednegligently, but that his negligence was not a substantial factor in causing plaintiff's injuries.Plaintiff moved to set aside the verdict and for a new trial due to alleged misconduct. SupremeCourt, among other things, denied plaintiff's motions. Plaintiff appeals from the judgmentrendered upon the jury's verdict and from that part of the order which denied his posttrial motion.
Questions of fact precluded Supreme Court from granting that part of plaintiff's cross motionseeking partial summary judgment on the issue of liability. A landlord's liability for injuriesrelated to a defective condition including lead paint cannot be established without proof that thelandlord had actual or constructive notice of the condition for a sufficient period of time such thatthe condition should have been corrected (see Juarez v Wavecrest Mgt. Team, 88 NY2d628, 646 [1996]). In lead paint cases, notice can be established by proof "that the landlord (1)retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that theapartment was constructed at a time before lead-based interior paint was banned, (3) was awarethat paint was peeling on the premises, (4) knew of the hazards of lead-based paint to youngchildren and (5) knew that a young child lived in the apartment" (Chapman v Silber, 97NY2d 9, 15 [2001]). Children ages six months to six years are most at risk for lead poisoning(see 10 NYCRR 67-1.2; Matter of New York City Coalition to End Lead Poisoning vVallone, 100 NY2d 337, 342-343 [2003]). In his deposition testimony and affidavit,defendant asserted that he was aware of plaintiff's siblings who were over 10 years old, but thathe was not aware that any younger children resided in the apartment. Regardless of whether theother factors for notice were established, this assertion created a question of fact as to whetherdefendant was on notice of the need to correct any lead paint problems in the apartment.Accordingly, Supreme Court correctly denied plaintiff's application for partial summaryjudgment.
Supreme Court properly denied that part of plaintiff's cross motion seeking to dismiss twoaffirmative defenses. Plaintiff bore the burden of establishing that the affirmative defenses werewithout merit as a matter of law (seeGalasso, Langione & Botter, LLP v Liotti, 81 AD3d 880, 882 [2011]). Here, the courtcorrectly limited the defense of failure to mitigate damages by precluding it for any time whileplaintiff lived in the apartment, as he was too young to be responsible for his conduct at that time(see M.F. v Delaney, 37 AD3d1103, 1104-1105 [2007]; Cardona v County of Albany, 188 Misc 2d 440, 445-446[2001]). While the law may absolve very young children of all liability for their actions as amatter of law (see M.F. v Delaney, 37 AD3d at 1104-1105), we reject plaintiff's broadassertion that individuals less than 18 years of [*3]age can neverbe held legally responsible for their actions through defenses such as contributory negligence orfailure to mitigate damages (see Blitstein v Capital Dist. Transp. Auth., 81 AD2d 981[1981]; Finn v New York State Dept. of Mental Hygiene, 49 AD2d 995, 995 [1975];Quinn v County of Sullivan, 48 AD2d 965, 965 [1975]). Plaintiff's conduct when he wasa preteen and teenager, including discontinuing prescribed medication and failing to attendschool, may have constituted a failure to mitigate damages at a time when plaintiff could be heldlegally responsible for his actions. Thus, the court correctly limited that defense, rather thandismissing it entirely. The contributory negligence defense was similarly based on plaintiff'sconduct; it was not based on his parents' negligent supervision of him, which would haverendered the defense improper (seeCunningham v Anderson, 66 AD3d 1207, 1208 [2009], lv denied 14 NY3d 710[2010]; Christopher M. v Pyle, 34AD3d 1286, 1287 [2006]). As plaintiff failed to establish the inapplicability of the defensesas a matter of law, the court ruled correctly on that portion of his cross motion.
Supreme Court also properly denied the portion of plaintiff's cross motion seeking topreclude the report and testimony of defendant's expert neuropsychologist. Plaintiff argues thatpreclusion was required because the expert refused to allow counsel to be present during theexpert's examination of plaintiff.[FN2]Counsel was familiar with the expert's procedures, as counsel encountered the same situationwith the same expert in a prior case (seeA.W. v County of Oneida, 34 AD3d 1236 [2006]). The court did not err in determiningthat, by failing to move for a protective order or seek guidance before the examinationconcerning counsel's ability to be present or observe it (see CPLR 3103 [a]), and onlyreserving his rights at the time of the examination but waiting until after the note of issue wasfiled to make the cross motion seeking relief, plaintiff waived his rights and was not entitled topreclusion (see Pendergast v Consolidated Rail Corp., 244 AD2d 868, 869 [1997]).
Addressing the judgment, plaintiff argues that once the jury found that defendant wasnegligent, it was required to also find that his negligence was a substantial factor in bringingabout plaintiff's injuries. We disagree. Plaintiff requested the verdict sheet questions askingseparately about negligence and causation, implying that they could be answered differently andwere not intertwined. He did not object to the charge either before or after it was given to thejury, although Supreme Court provided him an opportunity to do so. Following the jury's verdict,plaintiff did not inform the court of any perceived inconsistency in the jury's answers to thequestions posed. By failing to timely object and raise the issue prior to the jury being discharged,plaintiff failed to preserve this argument for our review (see Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1016 [2011]).
The jury's verdict was not against the weight of the evidence. Through documents andtestimony from county health department officials and defendant himself, plaintiff establishedthat the apartment that defendant rented to plaintiff's family had chipped lead paint at a timewhen plaintiff was a toddler, defendant had previously been cited for violating health regulationsregarding lead paint in that building, he was aware that abated lead paint hazards can recur if thelead paint is not entirely removed and he did not regularly inspect his apartments for peeling orchipped paint. This evidence supports the jury's finding that defendant was negligent.[*4]
Despite evidence that could support causation, includingtestimony from plaintiff's experts, defendant raised doubts about some of plaintiff's proof andpresented his own proof. Defendant's evidence, including the testimony of his experts, disputedthat plaintiff suffered from lead poisoning, that any lead poisoning was caused by paint, or thatplaintiff's disorders and disabilities were caused by lead poisoning. The record did not include thelaboratory results of plaintiff's blood lead levels, only a hearsay summary of those test results.The heading on the summary identified plaintiff as a female of unknown race, calling intoquestion if the document was an accurate summary of plaintiff's results. Without proof that hehad elevated blood lead levels, plaintiff could not prevail.[FN3]Additionally, all of the experts relied on the summary as representing the duration and peak ofplaintiff's blood lead levels, rendering suspect the accuracy of their opinions if the underlyinginformation and basis for their conclusions was incorrect.
Through health department records and testimony of a public health nurse, defendantpresented proof that plaintiff put cigarette butts, newspapers and magazines in his mouth whilehe lived in defendant's apartment. Cigarettes and newspaper ink contained lead at that time,presenting the possibility that—assuming plaintiff did have elevated blood leadlevels—the lead in his blood came from sources unrelated to defendant. Thus, despitedefendant being negligent in the maintenance of the apartment, his actions may not have beenresponsible for plaintiff's injuries.
As for the effects of lead poisoning, the experts disagreed on several points. Plaintiff'sexperts linked his ADHD, oppositional defiant disorder, a cognitive disorder and learningdisabilities to lead poisoning. Defendant's experts opined that ADHD is a congenital conditionand there are no scientific studies proving that it is caused by lead exposure. They further opinedthat plaintiff's disorders and disabilities were caused by other factors, mainly social andenvironmental circumstances of his upbringing. Contrary to plaintiff's assertion that this wasessentially an unwarranted attack on plaintiff based upon his race[FN4]and economic situation, or that these opinions were based on speculation, the experts referred toscientific studies and articles showing a link between socioeconomic factors and psychologicaldevelopment (see Veloz v Refika RealtyCo., 38 AD3d 299, 300 [2007], lv denied 9 NY3d 817 [2008]; compareJuarez v Wavecrest Mgt. Team, 88 NY2d at 648; Bygrave v New York City Hous. Auth., 65 AD3d 842, 845-847[2009]). Proof of plaintiff's social and family factors was presented through school and medicalrecords, as well as testimony from his sister. The jury could rationally credit the testimony ofdefendant's experts and their opinion that any effects of lead poisoning only [*5]minimally affected plaintiff in relation to the other factors that werepresent, thereby finding that defendant's negligence was not a substantial factor in causingplaintiff's injuries (see Avila v RobaniEnergy Inc., 12 AD3d 223, 223 [2004]; cf. Veloz v Refika Realty Co., 38 AD3dat 300). Giving appropriate deference to the jury, we will not disturb its verdict.
Plaintiff did not object to the comments made by defense counsel during his openingstatement and summation, rendering any challenge to those comments unpreserved (seeSimpson v K-Mart Corp., 245 AD2d 991, 993 [1997], lv denied 91 NY2d 813[1998]). Plaintiff's remaining arguments on his posttrial motion, to the extent that they werepreserved, either presented new evidence that should not be considered on such a motion orsimply rehashed arguments that had previously been raised and ruled upon during trial.Accordingly, Supreme Court did not err in denying the motion.
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the appeal from theorder entered April 9, 2010 is dismissed. Ordered that the order entered November 30, 2010 andthe judgment are affirmed, with costs.
Footnote 1: Plaintiff's right to appeal thenonfinal order partially denying his cross motion terminated upon the entry of the final judgment(see Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Granger Group v Town of Taghkanic, 77 AD3d 1137,1139 n 5 [2010], lv denied 16 NY3d 781 [2011]). Nevertheless, his appeal from the finaljudgment brings the issues raised on the appeal from this order up for review (see Neissel v Rensselaer PolytechnicInst., 54 AD3d 446, 449 n 3 [2008], lv denied 11 NY3d 716 [2009]).
Footnote 2: The expert allowed counsel tobe present for the clinical interview, but excluded him while psychological testing wasconducted.
Footnote 3: Plaintiff submitted copies of labresults with his posttrial motion. Upon realizing during trial that the actual results were notincluded in the medical records, plaintiff could have sought an adjournment to obtain thoseresults, which had been subpoenaed. He did not, and cannot now rely on records that were notpresented to the jury to attack the verdict.
Footnote 4: Plaintiff's counsel first broughtup the issue of race when questioning defendant's expert. The expert denied that race orrace-related genetics were a factor, although genetics were relevant because a parent'sintelligence and mental disorders could affect the child's innate abilities and opportunities in life.