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June 23, 1999


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


Infant plaintiff Christian Valencia, by his mother and natural guardian, commenced an action against defendants Sung M. Lee and Shiu Chun Lee, owners of the apartment in which he lived, and defendant City of New York seeking compensatory damages for developmental injuries he allegedly sustained from exposure to unsafe levels of lead in the apartment.



Christian Valencia was born on March 11, 1992. See Plaintiffs' Statement Pursuant to Local Rule 56.1 ("Pl. R.56.1"), ¶ 1. From the time of his birth until November 1, 1995, he lived with his family in an apartment in a building located at 441 46th Street in Brooklyn, New York. Id. at ¶ 2. During plaintiffs' entire tenancy in the building, it was owned by defendants Sung M. Lee and Shiu Chun Lee. Id. at ¶ 3.

In the course of infant plaintiffs pediatric care, his blood was screened for lead and he was found to have the following blood lead levels:

    Date               Lead Level*fn1
    3/3/93             14
    7/19/93            30
    8/23/93            19
    11/8/93            15
    2/10/94            13
    5/17/94            12
    10/31/94           11
    4/26/95            12
    6/26/95            17
    8/1/95             15
    11/7/95            12
    6/10/96             6

Id. at ¶ 14; Merrill Decl., Exh. F (Sunset Park Family Health Center Records). A blood lead level of ten ug/Dl or higher is considered to be poisoning under the City's own Health Code. See R.C.N Y § 11.03. See also Rosen Aff., ¶ 21 (irreversible impairments, such as brain damage, reduced IQ, delayed cognitive development and learning disabilities, occur at blood lead levels above and below 10 ug/Dl). At some point after July 19, 1993, the City's Department of Health was notified that Christian Valencia had a blood lead level of 30 ug/Dl. See Pl. R.56.1, ¶ 5. Pursuant to the New York City Health Code, the Department of Health ("DOH") inspects the home of any person it is notified has a blood lead level equal to or greater than 20 ug/Dl. See 13 R.C.N.Y. § 173.13. Subsequently, DOH inspected plaintiffs' apartment (for the first time) on August 25, 1993. Pl. R.56.1, ¶ 5 (citing DOH Records). It tested 78 surfaces in the apartment and sent an Order to Abate Nuisance, dated September 16, 1993, to the Lees directing them to repair 56 surfaces which it found to have peeling lead-based paint. See Rosen Aff., Exh. 2 (Order to Abate Nuisance). The Order to Abate Nuisance warned the Lees that the 56 incidences of peeling and flaking lead paint "constitute[d] a nuisance in that they present[ed] a danger to the life or health of the child/children of the above-referenced premises." Id. Although the Lees began the repair work in 1993, repairs on the apartment were not completed until 1996. See Merrill Decl., Exh. I (Franco Dep., pp. 35-36).

Shortly before plaintiffs moved out of the 46th Street apartment on November 1, 1995, a number of lead hazards remained, and there is no indication that these remaining hazards were repaired before plaintiffs relocated. See id. (Report of Inspection, dated 9/28/95). In fact, it appears that despite the DOH's significant intervention in the matter, its September 16, 1993 Order to Abate was not fully complied with until June 1996. See id. (Report of Inspection, dated June 28, 1996).

DOH inspectors and public health advisors did not expressly represent to plaintiffs that the apartment was safe to remain in while repairs were ongoing, and even appear to have informed infant plaintiff's mother that the owner of the apartment would have to relocate her and her family while the apartment was being repaired. See Def. R.56.1, Exh. I (Franco Dep., pp. 32-33). Moreover, there is clear evidence that PHA and DOH inspectors warned infant plaintiff's mother, on several occasions, that the lead poisoning hazard which existed in the apartment at the time of the City's initial inspection on August 25, 1993 remained throughout the balance of plaintiffs' tenancy. See Rosen Aff., Exh. 2 (PHA Notes for Visits, dated 8/26/93, 5/2/94, 8/30/95). There is no evidence, however, that the City ever took affirmative steps to warn plaintiffs' family that, even if the preventative and remedial steps recommended by the PHA were taken, dangers to infant plaintiffs health from living in the lead-poisoned apartment remained.


Plaintiffs commenced this action on May 8, 1997 by filing a summons and complaint with the clerk of the Supreme Court of the State of New York, Kings County, alleging: (1) violation of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4821 et seq.; (2) violation of the New York City Health Code; (3) violation of 42 U.S.C. § 1983; (4) negligence; (5) breach of contract and implied warranty of habitability; (6) nuisance and absolute nuisance; (7) tortious misrepresentation; and (8) negligent or intentional infliction of mental distress. The City removed this action to federal court on June 2, 1997. See Merrill Decl., Exh. A (Notice of Removal). Defendants Sung M. Lee and Shiu Chun Lee failed to answer the complaint, and plaintiffs obtained a default judgment against them.

Defendant City of New York ("defendant") has moved for summary judgment, and plaintiffs have opposed that motion as to all but three of plaintiffs' claims. Plaintiffs have conceded that there is insufficient evidence to support the federal law claims (first and third causes of action), see Merrill Decl., Exh. D (Pl. Let., dated 10/15/98), and have also acknowledged that their fifth cause of action, which alleges a breach of a warranty of habitability, is not directed at defendant City of New York. See Merrill Decl., Exh. C (Pl.Resp. to Def. Ints., No. 5). Accordingly, defendant's motion for summary judgment is granted as to plaintiffs' first, third and fifth causes of action.


Defendant contends, as a threshold matter, that plaintiffs' remaining state law claims are barred by New York's applicable statute of limitations. Section 50-i of the New York General Municipal Law requires, as a condition precedent to filing a negligence or personal "injury action against a city, the filing of a notice of claim on the city within 90 days after the claim arises. See N.Y.Gen.Mun.Law §§ 50-i, 50-e (Mckinney's 1999). Once a party files a notice of claim, the party has "one year and ninety days [from] the happening of the event upon which the claim is based" to commence an action, or the claim will be time barred. Id. at § 50-i(c). This statutory limitations provision is subject to C.P.L.R. 208 which provides: "If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action . . . is less than three years, the time shall be extended by the period of disability." N.Y.C.P.L.R. 208 (Mckinney's 1999).

Here, the infant plaintiff's mother, represented by counsel, timely filed a notice of claim, but railed to commence an action within the one year and ninety days provided by the applicable statute of limitations. Defendant argues that because infant plaintiff's legal guardian retained an attorney who filed a notice of claim upon the City, plaintiff was no longer under a "disability because of infancy" within the meaning of C.P.L.R. 208 and that, therefore, the tolling provisions of C.P.L.R. 208 do not apply. The Second Department's in Henry v. City of New York, 244 A.D.2d 93, 676 N.Y.S.2d 616 (2d Dept. 1998) squarely supports defendant's argument. Id. at 95, 676 N.Y.S.2d at 617 (infant plaintiff not under disability due to infancy where infant, through efforts of legal guardian, is represented by counsel who timely filed a notice of claim). The First Department, however, in Rosado v. Langsam Property Serv. Corp., 251 A.D.2d 258, 675 N.Y.S.2d 53 (1st Dept. 1998), came to the opposite conclusion. Id. (filing of notice of claim by legal representatives does not preclude infant plaintiff from invoking tolling provisions of C.P.L.R. 208). Thus, as both parties acknowledge in their memoranda, there is an obvious split in authority on the statutory tolling issue. After defendant served its motion papers, the New York Court of Appeals granted leave to appeal in Henry v. City of New York, 244 A.D.2d 93, 676 N.Y.S.2d 616 (2d Dept. 1998), leave to appeal granted, 93 N.Y.2d 802, 687 N.Y.S.2d 626, 710 N.E.2d 273 (Feb. 18, 1999) (Table No. 1473). ...

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