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LEMKE v. CITY OF PORT JERVIS

January 12, 1998

CHRISTINA LEMKE, an infant, by her father and natural guardian, EDWARD LEMKE, and EDWARD LEMKE, individually, Plaintiffs, against THE CITY OF PORT JERVIS, THE UNITED STATES DEPARTMENT OF AGRICULTURE, THE UNITED STATES RURAL ECONOMIC DEVELOPMENT AGENCY, f/k/a FARMERS HOME ADMINISTRATION, C&D POWER SYSTEMS, INC., a/k/a C&D BATTERY, and SMITH PLUMBING & HEATING, INC., Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 INTRODUCTION

 This suit arises from the government financed purchase and occupancy by plaintiff Edward Lemke and his wife, Gina Lemke, of a house at 48 Hudson Street in Port Jervis, New York. Subsequent to the Lemkes' purchase of the home in 1991, the house was found to contain high levels of lead, which allegedly caused personal injury to the Lemkes' daughter, Christina, who was born in 1993.

 Plaintiffs have filed suit against the United States Department of Agriculture and its agency, the United States Rural Economic Development Agency (collectively, the "government defendants") under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq. The government defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56. *fn1" For the reasons that follow, the government defendants' motion for summary judgment is denied.

 FACTUAL BACKGROUND

 The Lemkes purchased the home at 48 Hudson Street in August 1991 with the aid and assistance of the United States Rural Economic Development Agency (then known as the Farmers Home Administration), which financed the purchase by extending a Rural Housing Program loan authorized by § 502 of the National Housing Act of 1949. 42 U.S.C. § 1472 et seq.

 The Farmers Home Administration (the "Administration") advised the Lemkes that any house they selected would be subject to inspection by and approval of the Administration in order to insure that the house was adequate for the family and met applicable Administration standards, including suitability requirements. After the Lemkes located a house, a representative of the Administration visually inspected the entire house in May 1991 and approved it for the Section 502 loan program. According to the Administration representative who inspected the house, if a premises contained extensive lead plumbing it was clearly unsuitable for the Section 502 loan program. The house was approximately 90 years old and was constructed during a period in which many homes contained lead plumbing and lead-based paint. The property's lead plumbing was clearly visible to a person with a basic knowledge of plumbing.

 In April 1992, the Administration representative who had inspected the property was informed that the house contained lead plumbing. After being advised repeatedly that Christina Lemke had dangerously high levels of lead in her blood and, as a result, had suffered substantial developmental difficulties, the Administration conducted tests for lead contamination. In April 1995, after receiving the results of these tests, the Administration determined that the home was unfit for occupancy and advised the Lemke family to vacate immediately.

 In December 1995, the Lemkes filed a Notice of Claim against the government defendants under the Federal Tort Claims Act. This action followed.

 DISCUSSION

 A motion for summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). This Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Hayes, 84 F.3d 614 at 619.

 In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities in the light most favorable to, and draw all reasonable inferences in favor of, the party opposing the motion. Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996).

 In this case, the government defendants contend that plaintiffs' claims are barred by the misrepresentation and discretionary function exceptions to the Federal Tort Claims Act. 28 U.S.C. §§ 2680(a) and 2680(h). Additionally, the government defendants contend that plaintiffs' claims are not actionable under New York State law, which must provide a cause of action if plaintiffs are to state a claim under the Federal Tort Claims Act. 28 U.S.C. § 1346(b); FDIC v. Meyer, 510 U.S. ...


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