| Michaud v Lefferts 750, LLC |
| 2011 NY Slip Op 06479 [87 AD3d 990] |
| September 13, 2011 |
| Appellate Division, Second Department |
| Mirkaelle D. Michaud, an Infant, by Her Mother and NaturalGuardian, Naomie Michaud, et al., Respondents-Appellants, v Lefferts 750, LLC,Appellant-Respondent, and 91 East 21st Street, LLC, et al.,Respondents. |
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Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R.Pagano, and Mitchell L. Gittin of counsel), for respondents-appellants. Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Scott M. Wellikoff and Karen L.Campbell of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Lefferts 750, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Jacobson, J.), dated September 18, 2009, as denied that branch of its motion which was forsummary judgment dismissing the causes of action, in effect, pursuant to Local Law No. 1 (1982)of City of NY (Administrative Code of City of NY § 27-2013 [former (h)], now§§ 27-2056, 27-2056.18) and alleging common-law negligence insofar as assertedagainst it, and the plaintiffs cross-appeal, as limited by their brief, from so much of the sameorder as granted the motion of the defendants 91 East 21st Street, LLC, and El Management,LLC, for summary judgment dismissing the complaint insofar as asserted against them, grantedthe alternative branch of the motion of the defendant Lefferts 750, LLC, which was to compelcertain discovery, and granted that branch of the motion of the defendant Lefferts 750, LLC,which was for summary judgment dismissing the cause of action alleging that it violated theResidential Lead-Based Paint Hazard Reduction Act of 1992 (42 USC § 4851 etseq.).
Ordered that the order is reversed insofar as appealed from, on the law, that branch of themotion of the defendant Lefferts 750, LLC, which was for summary judgment dismissing thecauses of action, in effect, pursuant to Local Law No. 1 (1982) of City of NY (AdministrativeCode of City of NY § 27-2013 [former (h)], now §§ 27-2056, 27-2056.18)and alleging common-law negligence insofar as asserted against it is granted; and it is further,
Ordered that the cross appeal from so much of the order as granted the alternative branch ofthe motion of the defendant Lefferts 750, LLC, which was to compel certain discovery isdismissed as academic in light of our determination of the appeal; and it is further,
Ordered that the order is affirmed insofar as reviewed on the cross appeal; and it is further,[*2]
Ordered that one bill of costs is awarded to the defendantLefferts 750, LLC, and the defendants 91 East 21st Street, LLC, and El Management, LLC,appearing separately and filing separate briefs.
The infant plaintiff, by her mother, as natural guardian of the infant plaintiff, and the mother,individually (hereinafter together the plaintiffs), commenced this action in January 2007 torecover damages allegedly resulting from the infant plaintiff's exposure to a hazardous lead-basedpaint condition. The action was commenced against the defendant Lefferts 750, LLC (hereinafterLefferts), the owner of the apartment where the infant plaintiff resided with her parents(hereinafter the Lefferts apartment), and the defendants 91 East 21st Street, LLC, and ElManagement, LLC (hereinafter together the 91 East defendants), the respective owner andmanager of the apartment where the infant plaintiff's maternal grandmother lived. The infantplaintiff stayed at the maternal grandmother's apartment (hereinafter the 91 East apartment) everyday after school and would sleep over at least two or three times per week. The infant plaintiffwas diagnosed with an elevated blood lead level in April 2004. The plaintiffs alleged thatLefferts and the 91 East defendants violated their statutory and common-law duties to abate andeliminate the hazardous lead-based paint conditions in their respective apartments.
The Supreme Court improperly denied that branch of Lefferts' motion which was forsummary judgment dismissing the causes of action, in effect, pursuant to Local Law No. 1 (1982)of City of NY (Administrative Code of City of NY § 27-2013 [former (h)], now§§ 27-2056, 27-2056.18) and alleging common-law negligence insofar as assertedagainst it. In support of its motion, Lefferts relied on the affidavit of its expert, who reviewedrecords of the New York City Department of Health (hereinafter the DOH) revealing that onSeptember 3, 2004, the DOH conducted lead paint testing at the Lefferts apartment anddetermined that lead-based paint was not present in the apartment. This demonstrated, primafacie, that there was no hazardous lead-based paint condition in the Lefferts apartment.Consequently, this evidence was sufficient to establish Lefferts' prima facie entitlement tojudgment as a matter of law (see Ibert vTuscan Assoc., Inc., 37 AD3d 194, 195 [2007]).
In opposition, the plaintiffs relied on the report of their expert, Environmental ManagementSolutions of New York, Inc. (hereinafter EMS), which conducted lead-based paint testing of theLefferts apartment on October 9, 2006. The EMS report concluded that some of the testedsurfaces contained lead levels that exceeded regulatory limits. However, this testing occurredmore than two years after the infant plaintiff was diagnosed with an elevated blood lead level.Furthermore, at the time of the EMS testing, the infant plaintiff no longer had an elevated bloodlead level. Therefore, this evidence was insufficient to raise a triable issue of fact in opposition toLefferts' prima facie showing. Accordingly, the Supreme Court should have granted that branchof Lefferts' motion which was for summary judgment dismissing the causes of action, in effect,pursuant to Local Law No. 1 (1982) of City of NY (Administrative Code of City of NY §27-2013 [former (h)], now §§ 27-2056, 27-2056.18) and alleging common-lawnegligence insofar as asserted against it.
The Supreme Court properly granted the 91 East defendants' motion for summary judgmentdismissing the complaint insofar as asserted against them. The 91 East defendants establishedtheir prima facie entitlement to judgment as a matter of law on the causes of action, in effect,pursuant to Local Law No. 1 (1982) of City of NY (Administrative Code of City of NY §27-2013 [former (h)], now §§ 27-2056, 27-2056.18) and alleging common-lawnegligence by demonstrating that the infant plaintiff did not reside in the 91 East apartment. Boththe 1982 and 2004 versions of Local Law No. 1 apply to the facts of this case, as the complaintalleges that the infant plaintiff was exposed to a hazardous lead-based paint condition before andafter the effective date of the 2004 statute, August 2, 2004 (see Administrative Code ofCity of NY § 27-2056.1 et seq.). Under both versions of the statute, the duty of anowner of a multiple dwelling to remove or cover hazardous lead-based paint is triggered onlywhen a child of applicable age "reside[s]" in a dwelling unit (Administrative Code of City of NY§ 27-2013 [former (h) (1)], now § 27-2056.3; see Juarez v Wavecrest Mgt.Team, 88 NY2d 628, 641-642 [1996]; Shafi v Motta, 73 AD3d 729 [2010]). Here, the 91 East defendantsestablished that the infant plaintiff did not reside in the 91 East apartment. Thus, they satisfiedtheir prima facie burden of demonstrating their entitlement to judgment as a matter of [*3]law on the causes of action, in effect, pursuant to Local Law No. 1(see Byrd v 2015 Caton Ave., LLC,57 AD3d 933 [2008]). Furthermore, since the 91 East defendants demonstrated that a"young child" did not "live[ ] in the apartment," they established their prima facie entitlement tojudgment as a matter of law on the cause of action alleging common-law negligence(Chapman v Silber, 97 NY2d 9, 15 [2001]). In opposition, the plaintiffs failed to raise atriable issue of fact.
The Supreme Court also properly granted those branches of the separate motions of Leffertsand the 91 East defendants which were for summary judgment dismissing the causes of actionalleging a violation of the Residential Lead-Based Paint Hazard Reduction Act of 1992(see 42 USC § 4851 et seq.). Lefferts and the 91 East defendantsestablished their prima facie entitlement to judgment as a matter of law by demonstrating thatneither of the plaintiffs was a purchaser or lessee of the subject apartments and, thus, they had nostanding to assert a cause of action under the Residential Lead-Based Paint Hazard ReductionAct of 1992 (see 42 USC § 4852d [a] [1] [A]-[C]; Brown v Maple3, LLC,88 AD3d 224 [2d Dept 2011]; Skerritt v Bach, 23 AD3d 1080,1081 [2005]). In opposition, the plaintiffs failed to raise a triable issue of fact. Rivera, J.P.,Skelos, Hall and Austin, JJ., concur.