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O'Connor ex rel. O'Connor v. Weiss

Other Lower Courts

January 22, 2008

Russell O'Connor, Jr., an infant by his father and natural guardian, Russell O'Connor, Sr., et ano., Plaintiffs,
v.
Mildred Weiss a/k/a Mildred Leiser-Kusser, et al., Defendants.

Editorial Note:

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

COUNSEL

The plaintiff was represented by: Law Offices of Michael S. Frankel

The defendant was represented by: Russo, Keane & Toner, LLP

OPINION

Mark Partnow, J.

Plaintiffs commenced the instant lawsuit to recover damages for personal injuries allegedly sustained by the infant plaintiff Russell Jr., who claims to have been lead poisoned in the premises located at 1342 Gates Avenue in Brooklyn (the premises), which were owned by defendant Mildred Weiss (Weiss) during the relevant time period. In addition, O'Connor asserts a claim for loss of services.

As alleged, Russell Jr. was born on May 15, 1997 to Yvette O'Connor (Ms. O'Connor). In or about September of 1999, Weiss rented Apartment 2 of the subject premises (the apartment) to the O'Connor family. Russell Jr. came to live with the family in November of that year. In October of 2001, the premises were transferred to defendants Kenneth and Patricia Kendly (the Kendlys). It is undisputed that the premises were constructed before 1960.

According to Ms. O'Connor, the building contained three apartments. Furthermore, plaintiffs contend that Weiss was aware of children under age of seven years, on the premises. According to Ms. O'Connor, at the time of her application, she and her 1 year old son Brandon met with Weiss at the premises, that she specifically advised Weiss, in direct response to her question, that her son Russell Jr., age 21/2, would also be coming to live in the apartment.

Plaintiffs aver that when the family moved into the apartment, it appeared to have been freshly painted, but that within a short time, the paint began to peel, crack and chip in the kitchen, the parents' bedroom, and in Russell Jr.'s bedroom, where paint chips were falling on the floor and around the bed, contributing to a dusty condition in that room. As a result, it is contended that prior to the time he was diagnosed with lead poisoning, Russell Jr. often had dust on his hands and on his toys, and that, as witnessed, he was seen peeling paint chips from the wall and putting them in his mouth.

Ms. O'Connor alleges that although Weiss was notified about the problem, no repairs were ever made.

On March 16, 2000, Russell Jr. was diagnosed with an elevated blood lead (PbB) level of 10 micrograms of lead per deciliter of whole blood. On April 11, 2000, he was found to have a like reading, and on September 22, 2000, while he continued to reside at the premises, he was found to have an elevated level of 23 micrograms of lead per deciliter of whole blood. His PbB level remained elevated until the following year.

As a consequence of Russell Jr.'s elevated PbB levels, the New York City Department of Health (DOH), on September 28, 2000, conducted an inspection of the apartment, confirming that paint containing concentrations of lead in excess of permitted regulatory levels was present in four areas, three of which were situated in Russell Jr.'s bedroom. Following said inspection, on October 5, 2000, a "Commissioner of Health Order to Abate Nuisance" was issued to Weiss, directing abatement of the lead hazard. In response, Ms. O'Connor states that the landlord painted over some of the areas. As of November 27, 2000, violations were ...


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