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
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.
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 ...