| Williamson v Ringuett |
| 2011 NY Slip Op 05164 [85 AD3d 1427] |
| June 16, 2011 |
| Appellate Division, Third Department |
| Tayjia Williamson and Another, Infants, by Tindara Smith, TheirParent and Guardian, Respondents, v Michael J. Ringuett, Also Known as Michael J. Ringuette,Individually and Doing Business as R.S.K. Associates, et al., Appellants, et al.,Defendant. |
—[*1] O'Connell & Aronowitz, Albany (Mark G. Richter of counsel), for respondents.
Malone Jr., J. Appeal from an order of the Supreme Court (O'Connor, J.), entered July 14,2010 in Ulster County, which, among other things, denied certain defendants' motion forsummary judgment dismissing the complaint against them.
Plaintiffs commenced this action seeking damages for lead paint poisoning allegedly sufferedby plaintiff Tayjia Williamson (born in 1992) while residing in an apartment owned bydefendants Michael Ringuett, Alan Shaffer and David Klaven, all doing business as defendantR.S.K. Associates (hereinafter collectively referred to as defendants), from May or June 1995 to[*2]December 1996.[FN*]Defendants did not personally maintain the premises but, rather, engaged the services of GeoffreyDevor to act as the property manager. Following joinder of issue, defendants moved for summaryjudgment dismissing the complaint against them, arguing that they did not have actual orconstructive notice of any lead paint hazard on their property. Finding that defendants failed toestablish that they did not have constructive notice of the hazard, Supreme Court denieddefendants' motion and this appeal ensued.
A landlord has constructive notice of a lead paint hazard on his or her property if he or she"(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew thatthe apartment was constructed at a time before lead-based interior paint was banned, (3) wasaware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint toyoung children and (5) knew that a young child lived in the apartment" (Charette v Santspree, 68 AD3d1583, 1584 [2009], quoting Chapman v Silber, 97 NY2d 9, 15 [2001]). Defendantsdo not deny that they retained a right to enter the property and were responsible for repairs, thatthe building likely contained lead paint due to its age and that such paint posed a danger to theyoung child residing in the apartment. Instead, the pertinent issue is whether defendants hadactual or constructive notice of any peeling or chipped paint on the premises.
As the proponents of summary judgment, it was incumbent upon defendants to "make aprima facie showing of entitlement to judgment as a matter of law" (Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). In that regard, defendants submitted their owndeposition testimony in which they denied actual knowledge of peeling or chipped paint on theirpremises until they were notified of such in September 1995 by the Ulster County Department ofHealth. They also submitted an affidavit by Devor in which he stated that prior to plaintiffs'tenancy, he was "unaware, at that time, of any peeling or chipped paint" on the premises and thathe was not "aware of any maintenance issues with respect to the premises rented by [plaintiffs]"until the Department of Health notified him of the presence of lead paint. Although defendants'affidavits are sufficient to establish that they had no actual notice of the hazard, viewing theevidence in the light most favorable to plaintiffs and affording them the benefit of everyfavorable inference (see Andrew R.Mancini Assoc., Inc. v Mary Imogene Bassett Hosp., 80 AD3d 933, 935 [2011]),because Devor's affidavit is vague with respect to his observations of the premises during theactual period of plaintiffs' occupancy, it is insufficient to establish as a matter of law that, duringthat time, defendants did not have constructive notice of a lead paint hazard on their premises.
Finally, in support of their motion, defendants did not submit any evidence regardingplaintiffs' allegations that, once notified of the lead paint in their apartment, defendantsnegligently remediated the hazard. As defendants failed to sustain their initial burden, theirmotion for summary judgment dismissing the complaint against them was properly denied,regardless of the sufficiency of plaintiffs' opposing papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d at 853).[*3]
Rose, J.P., McCarthy, Garry and Egan Jr., JJ., concur.Ordered that the order is affirmed, with costs.
Footnote *: From January 1997 throughsometime in 2005, plaintiffs and their mother lived in an apartment owned by defendant JanLarsen, which plaintiffs also alleged in the complaint contained lead paint and caused injury toplaintiff Alexys Williamson (born in 1997) and exacerbated injuries to Tayjia Williamson.Larsen is not a party to this appeal.