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CABAN v. 600 EAST 21st STREET CO.

June 4, 2004.

ALMANTINA CABAN, an infant, by her Mother and Natural Guardian CARMEN CRESPO, Plaintiffs,
v.
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

MEMORANDUM & ORDER

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.

BACKGROUND

  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.

  DISCUSSION

  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 ...


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