| Van Wert v Randall |
| 2012 NY Slip Op 07247 [100 AD3d 1079] |
| November 1, 2012 |
| Appellate Division, Third Department |
| Melissa Van Wert, Appellant, v Elizabeth Randall et al.,Respondents. |
—[*1] Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M. Califano of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (Hummel, J.), entered March 29,2012 in Rensselaer County, which partially denied plaintiff's motion for, among other things, aprotective order.
From approximately 1994 until 1996, plaintiff (born in 1991) and her family resided in twoapartments owned by defendants. During that time period, tests indicated that plaintiff hadelevated blood lead levels. In 2009, plaintiff commenced this action seeking damages forneurological injuries she alleges that she sustained as a result of exposure to lead-based paint indefendants' apartments. Following discovery, plaintiff moved for (1) a judicial subpoena ducestecum for production of certified records from the Rensselaer County Health Department, (2) anorder granting admission at trial of certain documents created by the Centers for Disease Controland Prevention and the Environmental Protection Agency, (3) an order taking judicial notice ofcertain legislative findings, statutes and regulations, (4) a protective order preventing defendants'attorneys and experts from making speculative arguments or providing proof regardingalternative, superceding or intervening causes of plaintiff's alleged injuries, (5) an order grantingplaintiff partial summary judgment on the issue of liability, and (6) an order dismissingdefendants' first, second and third affirmative defenses. Supreme Court signed the judicialsubpoena, but otherwise denied the motion. Plaintiff appeals.
Supreme Court properly denied the portion of plaintiff's motion seeking summary [*2]judgment on the issue of liability. To establish that a landlord hadconstructive notice of a hazardous, lead-based paint condition, a plaintiff must show "that thelandlord (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" (Chapman vSilber, 97 NY2d 9, 15 [2001]; accord Robinson v Bartlett, 95 AD3d 1531, 1533 [2012]).Defendant Elizabeth Randall testified at her examination before trial that her husband entirelyrenovated one of the apartments before plaintiff's family moved in, both apartments were freshlypainted before any new tenant moved in, the apartments were inspected before plaintiff's familymoved in, they would not have passed inspection if peeling or chipping paint had been present,the family lived in each apartment for a year or less, and Randall never received any complaintsabout peeling paint conditions. Plaintiff's mother also testified that the apartments were freshlypainted before the family moved in. This testimony did not establish as a matter of law thatdefendants were aware that paint was peeling in the apartments when plaintiff's family livedthere, leaving at least a question of fact on that element (cf. Cunningham v Anderson, 85 AD3d 1370, 1372 [2011], lvdismissed and denied 17 NY3d 948 [2011]). Additionally, plaintiff had elevated blood leadlevels as early as 1992, several years before she moved into defendants' apartments, raisingquestions as to whether lead paint exposure in defendants' buildings was a substantial factor incausing plaintiff's injuries (see Robinson v Bartlett, 95 AD3d at 1535). Thus, the courtproperly denied the portion of plaintiff's motion seeking partial summary judgment.
Supreme Court did not err in denying the part of plaintiff's motion seeking to dismissdefendants' first affirmative defense, namely that plaintiff and her parents contributed to herinjuries.[FN*]Courts have permitted such a defense where it was alleged that the parents affirmatively causedharm by exposing the child to lead poisoning elsewhere (see M.F. v Delaney, 37 AD3d 1103, 1105 [2007]). Similarly, here,the record contains proof that plaintiff had elevated blood lead levels at times when she did notreside in defendants' apartments. Although plaintiff herself is absolved of all liability for heractions while she lived in defendants' apartments, as she was no more than five years old at thetime, defendants are permitted to attempt to show that she later caused or exacerbated some ofher injuries when she was a teenager, through actions such as smoking cigarettes and marihuanadaily and dropping out of school (see Robinson v Bartlett, 95 AD3d at 1535;Cunningham v Anderson, 85 AD3d at 1372). While the defense may be limited, plaintiffdid not meet her burden of showing that the defense lacked merit as a matter of law (seeCPLR 3211 [b]; Metz v State of NewYork, 86 AD3d 748, 752 [2011]). Thus, the court did not err in denying plaintiff'srequest to dismiss that defense.
Supreme Court properly denied plaintiff's request to take judicial notice of governmentpublications, statutes and regulations. Rather than outright denying plaintiff's requests, the courtdeferred a resolution, providing plaintiff an opportunity to establish a foundation for admission ata later time. The court did not abuse its discretion in determining that plaintiff had failed toestablish the relevance of the proffered documents and laws to a trial in this particular case(see Robinson v Bartlett, 95 AD3d at 1536; Sleasman v Sherwood, 212 AD2d868, 870 [1995]).
Plaintiff moved for a protective order pursuant to CPLR 3103, but she did not seek [*3]relief from discovery abuses as provided in that statute. Instead, sheactually sought a motion in limine preventing certain evidence from being raised at trial (see Matter of PCK Dev. Co., LLC vAssessor of Town of Ulster, 43 AD3d 539, 540 [2007]). Supreme Court correctly heldthat the request was overbroad and would have prevented legitimate defenses from beingpursued. Accordingly, the court properly denied the request at this time, permitting plaintiff toraise more specific and pointed objections closer to or at the time of trial.
Lahtinen, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,with costs. [Prior Case History: 35 Misc 3d 1202(A), 2012 NY Slip Op 50534(U).]
Footnote *: Defendants withdrew theirsecond and third affirmative defenses, rendering any discussion of them academic.