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