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April 29, 1999


The opinion of the court was delivered by: Block, District Judge.


Felicita Muniz ("Muniz") brings suit on behalf of herself and her minor child, Stephanie Santiago ("Santiago") (together, "plaintiffs") against the City of New York ("City") and Johnny Hernandez ("Hernandez"). Plaintiffs seek damages against the City for lead-based paint poisoning suffered by Santiago, based on alleged causes of action under the Lead-based Paint Poisoning and Prevention Act ("LPPPA"), 42 U.S.C. § 4822 et seq.; the Housing and Community Development Act ("HCDA"), 42 U.S.C. § 5301 et seq.: the LPPPA and HCDA regulations; 42 U.S.C. § 1983; and the New York City Administrative Code. Plaintiffs also seek damages against the City and Hernandez under an assortment of common law torts. After having removed the case from New York State Supreme Court, Kings County, see 28 U.S.C. § 1441, the City now moves to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), or alternatively, for summary judgment under Fed.R.Civ.P. 56. In their submissions in opposition to the City's motion, plaintiffs raise an additional claim under the Residential Lead-based Paint Hazard Reduction Act ("RLPHRA").*fn1

As explained below, neither the LPPPA, the HCDA, the RLPHRA, nor their attendant regulations, provide plaintiffs with an enforceable right under 42 U.S.C. § 1983 or a private right of action against the City for its failure to cure the lead-based paint hazards in plaintiffs' home simply because the City was a recipient of federal funds designed to allow the City to address such hazards where found in pre-1978 privately owned residences. Therefore, the City cannot be liable to plaintiffs in a § 1983 action or a private right of action under these statutes or regulations for exposure to lead-based paint allegedly caused by the City's failure to properly attend to the lead-based paint hazards which it found to have existed in plaintiffs' apartment.


In order to draw all inferences in favor of plaintiffs, Vital v. Interfaith Medical Center, 168 F.3d 615, 620 (2d Cir. 1999), the following facts, most of which are undisputed, are drawn from the plaintiffs' submissions:*fn2

Santiago was born in 1990, and lived with her mother, Muniz, at 362 48th Street, Apartment # 3, Brooklyn, New York from August 8, 1990 until April 19, 1996. They rented their apartment (the "Apartment") in Hernandez's apartment building, which was built prior to 1978. During March 1995, Santiago tested positive for an elevated level of lead in her blood, and the City was notified of the likelihood of the presence of lead-based paint hazards in the Apartment. Shortly thereafter, the City Department of Health ("DOH") inspected the Apartment and made the following findings: (1) Santiago, while living in the Apartment, had a blood lead level of 20 ug/dl or higher; (2) the paint at the Apartment contained sufficiently high levels of lead to violate the New York Health Code § 173.13(c) and (d); and (3) such conditions constituted a nuisance because they presented a danger to Santiago's life or health.

On April 13, 1995, DOH issued an "Order to Abate Nuisance" requiring Hernandez to remove all lead poisoning hazards from the Apartment. At least seven times between April and August 1995, City inspectors examined the Apartment for the presence of lead-based paint and provided lead hazard counseling to Muniz. Hernandez performed some repairs in the Apartment, but plaintiffs allege that they were insufficient to abate the lead-based paint hazards. Following a June 16, 1995 inspection, DOH referred the matter to the City's Emergency Repair Program of the Department of Housing Preservation and Development. Plaintiffs allege that the City never cured — that is, reduced, abated, and removed — the lead-based paint hazards in the Apartment.


A. Summary Judgment

Fed.R.Civ.P. 12(b) provides, inter alia: "If, on a motion asserting the defense . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). In this action, the Court relies on facts set forth in the plaintiffs' submissions in opposition to summary judgment, including the stipulation entered into between the City and plaintiffs, which are outside the pleadings. Accordingly, the Court will treat the motion as one for summary judgment.

Plaintiffs have had adequate notice and a reasonable opportunity to oppose the summary judgment aspect of the City's motion. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (no prejudice to plaintiff when court converted motion to dismiss to motion for summary judgment when defendant had moved for summary judgment in the alternative, and plaintiff had adequate time to respond); National Ass'n of Pharmaceutical Mfrs., Inc. v. Ayerst Lab., Div. of Am. Home Prods. Corp., 850 F.2d 904, 911 (2d Cir. 1988) (same). Furthermore, plaintiffs have fully responded to the City's request for summary judgment. See Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir. 1995) (district court's conversion of motion to dismiss to motion for summary judgment was proper when moving party asked for such relief in the alternative and opposing party presented evidence outside of the pleadings).

B. Conceptual Overview: Enforceable Rights Under § 1983 and
  Private Rights of Action

"A plaintiff alleging a violation of a federal statute [or right] will be permitted to sue under § 1983 unless (1) `the [statutory right does] not create enforceable rights, privileges, or immunities within the meaning of § 1983,' or (2) `Congress has foreclosed such enforcement of the [statutory right] in the enactment itself.'" Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). Under Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), three factors must be present in order for a court to determine that a statutory provision creates a privately enforceable right under § 1983:

  First, Congress must have intended that the provision
  in question benefit the plaintiff. Second, the
  plaintiff must demonstrate that the right assertedly
  protected by the statute is not so "vague and
  amorphous" that its enforcement would strain judicial
  competence. Third, the statute must impose a binding
  obligation on the States. In other words, the
  provision ...

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