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United States District Court, E.D. New York

June 4, 2004.

ALMANTINA CABAN, an infant, by her Mother and Natural Guardian CARMEN CRESPO, Plaintiffs,
600 EAST 21ST STREET CO., a partnership, GEORGIOS NTILIS, KOSTA STOUPAKIS, NICK HAVIARAS, jointly and severally and THE CITY OF NEW YORK, Defendants.

The opinion of the court was delivered by: RAYMOND DEARIE, District Judge


The infant plaintiff, by her mother and natural guardian, plaintiff Carmen Crespo, brings this action against defendants for injuries sustained from her exposure to lead paint. The City moves for summary judgment on all claims.*fn1 For the following reasons, the City's motion is granted.


  The facts relevant to this motion are largely undisputed. Almantina Caban was born in 1989. She resided in apartment A10 at 600 East 21st Street from birth until early 1993, when she moved to apartment B5 in the same building. The building was owned by defendant 600 E. 21st Street Co. It was managed by Olympic Management Company from March until November 1993, at which time Harry Horowitz was appointed receiver.

  On October 27, 1993, Caban was examined at Kings County Hospital. She had an elevated blood-lead level of 48 ug/dL and was diagnosed with lead poisoning. The hospital reported her blood-lead level to the Department of Health ("DOH") on November 1, 1993.

  Beginning on November 4, 1993, agents of the DOH made a number of visits to plaintiffs' apartment to test for lead and to advise Crespo on the dangers of lead poisoning and methods of lowering the risks, including the importance of a well-balanced diet, housekeeping, and medical follow-ups. Paint samples taken from the apartment indicated the presence of lead. On November 16th, the DOH issued an order to abate the violations to the 600 East 21st Street Company. (Casadevall Decl., Ex. 1, Order to Abate Nuisance, dated 11/16/93). A follow-up inspection on November 30th found that the violations had not been corrected. The DOH decided to continue observation of the building because it had recently come under new management. On December 6, the DOH re-issued an abatement order to the newly appointed receiver, Harry Horowitz. Follow-up inspections uncovered continuing violations. Although the new management promised to begin abatement by the end of December, an inspection on January 21, 1994 found that the violations remained unabated.

  On January 31 and February 2, 1994, Caban was tested for lead poisoning at Kings County Hospital. She had a blood-lead level of 45 ug/dl, which was reported to the DOH on February 3. A DOH Public Health Advisor visited on February 7 and again discussed the seriousness of the situation with Crespo.

  On February 8, Crespo took the infant to Brookdale Hospital, where she was admitted with a blood-lead level of 45 ug/dl and treated for lead poisoning. The doctors at Brookdale advised Crespo that the child could not continue living in the apartment.

  After Caban's discharge from the hospital, she lived in apartment A5 of the building. However, before the abatement work was completed on apartment B5, Crespo brought the child back to that apartment because Caban was upset about being way from home.

  On March 3, 1994, plaintiffs filed a Notice of Claim against the City. Follow-up inspections by the DOH thereafter showed some progress in abating the hazards in apartment B5, but continued non-compliance by the landlord.

  In the fall of 1994, Caban was twice hospitalized with lead poisoning. In December 1994, Crespo and the infant relocated to Puerto Rico. Plaintiffs filed this suit in December 1999.


  I. Summary Judgment

  Summary judgment is granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Summary judgment "is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000).

  II. Tort Claims against the City

  Federal courts sitting in diversity apply state substantive law. See Gasperini v. Center For Humanities, Inc., 518 U.S. 415, 426-27 (1996); Hegger v. Green, 646 F.2d 22, 26 (2d Cir. 1981). Thus, New York law applies in this case.

  Plaintiffs allege that the City breached a special duty owed to Caban because of its negligent advice, failure to ensure prompt abatement of the violations, and failure to advise Crespo to remove Caban from the apartment or hospitalize her sooner. This negligence, they argue, lengthened Caban's exposure to the lead paint and exacerbated her injuries.

  Under New York law, "municipalities are immune from tort liability when their employees perform discretionary acts involving the exercise of reasoned judgment." Pelaez v. Seide, 2004 N.Y. LEXIS 475, *1 (March 25, 2004). There is a narrow exception to this rule if a plaintiff "has established a `special relationship' with the municipality." Id.; Bargy v. Sienkiewicz, 615 N.Y.S.2d 520, 522 (App. Div. 1994). Such a relationship exists in three circumstances: "(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction or control in the face of a known, blatant and dangerous safety violation." Pelaez, 2004 N.Y. LEXIS 475, at *14. Plaintiffs bear the burden of establishing the special relationship. Id.

  The City argues that summary judgment is appropriate because the plaintiffs fails to demonstrate the existence of a special relationship under any of the three tests. After oral arguments on the present motion, the New York Court of Appeals issued its Pelaez opinion which involved appeals of two cases involving facts similar to the instant case. That opinion resolves the legal questions in this case in favor of the City.

  1. Duty Created by Statute

  To establish a special relationship based on a violation of a statutory duty, a plaintiff must identify a statute that authorizes a private right of action. Pelaez, 2004 N.Y. LEXIS 475 at *16. If the statute does not explicitly provide a private right of action, one may be implied if (1) plaintiff is a member of a specific class for whose special benefit the statute was enacted; (2) the recognition of such a right would promote the statute's purpose; and (3) the creation of the right is consistent with the legislative scheme. Id.

  Defendant argues that plaintiffs cannot establish a special relationship under this test because neither of the two possible sources of a statutory duty — Public Health Law § 1370-a(2)(a) and New York City Health Code 24 RCNY § 173.13 — provides a private right of action.

  In Pelaez, the Court of Appeals held that there is no private right of action implied in § 1370 because the implication "of a private right of action . . . is not consistent with the legislative scheme." Id. The court noted that the scheme established by the law was such that the "role of the government is, in the main, administrative and advisory. Municipalities participate by conducting lead screening, compiling a statewide registry for children with elevated lead levels, and developing public education and community outreach programs." Id. at *19. The court "read the legislative design as encouraging municipalities to cooperative administratively, while preserving the tort remedy against owners, when appropriate." Id. In light of the Pelaez decision, plaintiffs cannot rely on alleged violations of this section of the Public Health Law.

  Although the Pelaez Court did not directly address whether a private right is implied in City Code § 173.13, its reasoning leads to the conclusion that one is not. The current version of this provision allows the City to order abatement of lead paint violations where a child under eighteen manifests a blood-lead level above 20 micrograms per deciliter. First, the Pelaez decision affirmed the Appellate Division's decision in Harris v. Llewellyn, 748 N.Y.S.2d 676 (App. Div. 2002) which found that "§ 173.13(d)(2) was enacted for the benefit of the general public and does not impose a special duty on the City for [plaintiffs'] benefit as individuals." (Internal citations and quotations omitted.) Furthermore, the Pelaez Court's reasoning concerning the state provision applies with equal force to the city provision. As the court noted, "opening municipalities to liability for carrying out their duties imperfectly could even disserve the statutory objective by causing municipalities to withdraw or reduce services in dealing with lead paint." Pelaez, 2004 N.Y. LEXIS 475 at *19.

  In any event, the issue need not be resolved in this case. The version of § 173.13 in effect during the mid-1990s addressed situations where any resident, not only children, presented elevated blood-lead levels. In 1997, the provision was amended to limit coverage to situations where children under 18 are affected. Courts have agreed that the pre-1997 provision was intended to benefit the general population, not a particular class of people. See, e.g., Franklin v. Caisi Management, No. 95-3460, 1997 U.S. Dist. LEXIS 23335, *18 (E.D.N.Y. June 5, 1997). Therefore, no private right of action can be implied under the version of the provision that was in effect during the events at issue in this case. See Davis v. Owens, 686 N.Y.S.2d 31, 32 (App. Div. 1999) (on similar facts reaching same conclusion).

  Because plaintiffs have not identified a statute with a private right of action, they cannot establish a special relationship between the City and Caban.

  2. Voluntary Assumption of Duty and Detrimental Reliance

  In New York, a plaintiff can also demonstrate a special relationship if (1) the City assumed "through promise or actions" an affirmative duty to act on the plaintiff's behalf; (2) the municipality's agent knew that inaction could lead to harm; (3) there was some form of direct contact between the municipality's agents and the plaintiff; and (4) the plaintiff justifiably relied on the municipality's affirmative undertaking. Bargy, 615 N.Y.S.2d 520.

  Plaintiffs argue that the City voluntarily assumed a special duty towards Caban by visiting and advising Crespo, inspecting the premises, and monitoring developments. Plaintiffs assert that Crespo detrimentally relied on the City's advice about diet and housekeeping, thinking these measures were sufficient to protect Caban from lead poisoning. They further claim that the City breached its assumed duty by failing to advise Crespo of the risks of continued exposure or of the need to remove Caban from the premises sooner.

  In Pelaez, plaintiffs argued that the defendants "exceeded [their] responsibilities and took on affirmative duties by offering advice as to nutrition and hygiene." Pelaez, 2004 N.Y. LEXIS 475, at *21. However, the court concluded that neither defendant had assumed any "affirmative duty to act on plaintiffs' behalf." Id. The court found that merely offering advice — even if the advice proves to be wrong — does not amount to the assumption of a special duty. The court noted that the counseling, inspection, and monitoring performed by the defendants in Pelaez, and by the City here, were precisely the types of activities envisioned by the state and city health laws. Id. at *21-22.

  Plaintiffs cite Bargy in support of their argument. There, the defendant gave plaintiff advice to remove the infants during abatement, monitored the abatement process, negligently inspected the apartment, and wrongly advised that it was safe to return to the premises. The court concluded that the plaintiffs had offered evidence raising an issue of fact as to whether the County had assumed a special duty towards the infants. First, it is unclear whether the Bargy decision survives Pelaez. In any event, plaintiffs do not offer such evidence here. In fact, plaintiffs' main complaint is that the City did not take a sufficiently active role in the situation and instruct them to vacate sooner. Thus, this situation does not fall within the special circumstances presented in Bargy.

  Plaintiffs also cite Thomas v. City of New York, 580 N.Y.S.2d 1008 (App. Div. 1992) where the court found that unspecified "unusual circumstances" justified finding a special duty had been assumed by the city defendant. Without any indication of what those circumstances were, the case can be of little help to plaintiffs.

  Because the plaintiffs fail to point to special circumstances which distinguish this case from Pelaez, the Court must conclude that the City did not voluntarily assume a special duty towards Caban and Crespo.

  3. Assumption of Positive Direction and Control

  Plaintiffs also contend that the City assumed positive direction and control over the abatement of the violations and is thereby liable for Caban's injuries. The City counters that at all times, the landlord was in charge of abating the violations and therefore that the City cannot be held liable under an "assumption of control" theory. The City relies on Jones v. Kallam, No. 36880, slip op. at 8 (Kings Co., July 6, 2000) for the proposition that this exception to sovereign immunity only applies if "the municipality had substantial `control over the performance of the work' and `made affirmative misrepresentations concerning the safety of the worksite.'" The Court agrees.

  The Pelaez Court concluded that in both appealed cases, the municipalities did not assume control merely by offering advice or promising to monitor the premises. Pelaez, 2004 N.Y. LEXIS 475, at *25. The court concluded that the "landlords, as opposed to the municipalities, were in immediate control of the abatement process . . . The municipalities monitored the process and urged it along but did not take control of abatement." Id. Plaintiffs have offered no evidence that distinguishes this situation from those discussed by Pelaez. Absent such evidence, the Court must conclude that the City did not assume positive direction and control over the hazard and therefore plaintiffs cannot establish a special relationship on this basis.

  4. Affirmative Placement of Infant in a Position of Danger

  Finally, plaintiffs contend that the City may be held liable even absent the existence of a special relationship between it and Caban. Relying on the affirmative acts alleged above, plaintiffs claim that the City is liable because its actions placed Caban in a position of danger that was reasonably foreseeable. Plaintiffs cite a number of cases which suggest that, under special circumstances, affirmative acts by the government which lead to harm may be sufficient to ground liability. See, e.g., Schuster v. City of New York, 5 N.Y.2d 75, 80 (1958) (special duty owed to members of public whose assistance to law enforcement in arrests of fugitives places them in known danger); Snyder v. City of Rochester, 508 N.Y.S.2d 863 (App. Div. 1986) (police ordered plaintiff, who was heavily intoxicated, to move car which caused her to sustain injuries); Maloney v. Scarfone, 267 N.Y.S.2d 929 (App. Div. 1966) (police ordered unlicensed man to move car which resulted in accident and death of plaintiff's intestate); Benway v. City of Watertown, 151 N.Y.S.2d 485 (App. Div. 1956) (defendant returned gun to man known not to have license and to have threatened wife which he then used to shoot wife). However, any affirmative acts on the part of the City in this case are in no way comparable to those at issue in the cases cited by plaintiffs. Plaintiffs fails to offer evidence which would establish grounds for liability on the basis of this legal theory.


  For the foregoing reasons, the City's motion for summary judgment is granted.


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