Tinsley v Morgane Greene, Inc.
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 15, 2011
PRESENT: Schoenfeld, J.P., Shulman, J.
Plaintiff, as limited by his briefs, appeals from 1) that portion of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), dated February 26, 2009, which granted defendants' respective motions for summary judgment dismissing the complaint and all cross claims against them, and 2) an order (same court and Judge), dated September 18, 2009, which denied plaintiff's motion to renew and reargue the aforesaid order.
Order (Peter H. Moulton, J.), dated February 26, 2009, reversed, without costs, defendants' motions denied, and complaint reinstated. Appeal from order (same court and Judge), dated September 18, 2009, dismissed, without costs, as academic with respect to renewal and as taken from a non-appealable order with respect to reargument.
The action seeks damages for neurological and developmental injuries allegedly sustained by the infant plaintiff as a result of his exposure to lead-based hazards created during an extensive lead paint removal project undertaken between 2001 and 2003 at the apartment building in which he resided. Defendants, through their experts' submissions, established an "entitlement to summary judgment on the ground that the infant plaintiff did not suffer any physical or cognitive injuries stemming from the alleged lead poisoning, thus shifting the burden to plaintiffs to raise an issue of fact" (Veloz v Refika Realty Co., 38 AD3d 299, 300 , lv denied 9 NY3d 817 ). In opposition, plaintiffs raised a triable issue by way of their expert's affirmation and accompanying report. Plaintiffs' expert cites specific scientific literature for the proposition that exposure to lead of less than 10 g.dL can cause "demonstrable" present and future neuropsychological injuries; notes that the infant plaintiff's blood tests revealed lead levels between 6 and 10 g.dL on three occasions during 2002 and 2003; opines that one cannot disregard plaintiff's September 2002 test result of 13.4 g.dL, despite defendants' attacks on the methodology underlying this test; and concludes that the infant plaintiff's decrease in IQ and visual and motor skill impairments were casually related to lead poisoning (see Kodjovi v Trustees of Columbia Univ., 80 AD3d 495; Solis-Vicuna v Notias, 71 AD3d 868, 870 ; Bygrave v New York City Hous. Auth., 65 AD3d 842, 847 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 15, 2011
© 1992-2011 VersusLaw ...