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Barker ex rel. Barker v. 155 East 51st Street, LLC

Other Lower Courts

December 3, 2007

Omari Barker, an infant under the age of fourteen years, by his mother and natural guardian, Jacqueline Barker and Jacqueline Barker, individually, Plaintiffs,
v.
155 East 51st Street, LLC and Miller Management, Defendants,

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Druckman Sinel, LLP (plaintiffs), Tracy Smith, Esq.

Mound Cotton Wollan Greengrass (defendants), Kenneth Lange, Esq.

OPINION

Gloria M. Dabiri, J.

On or about June 18, 2003, the plaintiffs filed a verified complaint alleging that the infant plaintiff was exposed to a lead paint hazard while residing at 155 East 51st Street, Apartment 18A in Kings County and suffered injuries as a consequence thereof. The complaint alleges that the infant plaintiff resided at the premises since November 7, 2002 and that the defendants had notice of his residence. Plaintiffs allege negligence causes of action against defendant 155 East and Miller under the Administrative Code of the City of New York (former 2013(h)(1), [Local Law 1]).

In support of their motion for summary judgment, defendants supply lease agreements for the subject premises signed by plaintiff Jacqueline Barker on July 15, 2000 and February 14, 2002. [1] Neither lease indicates that a child would be living with her at the premises. The verified complaint states that the infant plaintiff began to reside in the apartment on November 7, 2002. Defendants also served plaintiffs with notice to admit that the infant did not reside in the apartment prior to November 7, 2002. However, plaintiffs have failed to either object or otherwise respond to the notice. Jacqueline Barker testified that the child lived in Trinidad prior to residing at the subject apartment. Defendants also submit evidence that the child was diagnosed with lead poisoning on November 13, 2002, six days after moving into the apartment. Jay Miller, a managing partner of 155 East, and a manager of Miller, in an affidavit states that defendants first became aware that a child under seven years of age was living in the apartment when they received a Commissioner of Health Order to Abate Nuisance, dated December 18, 2002. At his deposition, Mr. Miller testified that when visiting the apartment he had observed a sixteen or seventeen year old child, but did not recall ever seeing a young child.

Concerning the lead paint found in the apartment, the defendants supply the affidavit of Dionne Rivers-Ettu, an Associate Public Health Sanitarian and the individual who inspected the apartment after the infant plaintiff's blood-lead level was found to be elevated. When she inspected the apartment on November 26, 2002, "[t]he only component of the [p]remises that tested positive for lead . . . was the exterior door at the apartment entrance from the public hallway." The specific areas of the door which tested positive for lead were the door header on the interior of the door, the left casing on the exterior of the door and the upper center on the interior and exterior of the door. With respect to other areas of the apartment, she notes that "all the painted surfaces at the [p]remises . . . were in pretty good condition, meaning that they were intact." She also states that her notes from the inspection indicate that the infant plaintiff's grandmother provided her with information during the inspection and that the response given to her with respect to the "Parent's/Guardian's Assessment of Possible Exposure" was that "Mom believes the poisoning came from Trinidad." On January 14, 2002, and several times thereafter, Ms. Rivers-Ettu attempted to gain access to the apartment to determine whether the lead hazard had been abated, but was unable to do so. Ms. Rivers-Ettu inspected the apartment on April 3, 2003 and "observed that all of the violations had been complied with by the owner." [2]

Defendants also submit a "Notification of Commencement of Lead Abatement" dated January 20, 2003, which includes information pertaining to the de-leading company retained by defendants to abate the subject lead condition.

Based on the foregoing, defendants argue that they have demonstrated, prima facie, that they had no prior knowledge that a child under the age of seven resided in the apartment, but that upon receipt of an abatement order they acted properly to remove the lead paint violations. Moreover, argue defendants, the time between when the child began residing in the apartment, November 7, 2002, and the date it was determined that he had an elevated blood-level, November 13, 2002, was only six days. This, defendants claim, did not afford sufficient time to learn of the child's presence or to cure any lead hazard.

In opposition to the defendants' motion, the plaintiffs submit the affidavits of Jacqueline Barker and the infant's older sister, Natasha Richardson. Ms. Barker affirms, in relevant part:

The entrance door [to the subject apartment] had chipping and peeling paint. The living room and bath room walls have chipping and peeling paint. The paint chips would fall to the floor. Since . . . I moved into the ...


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