Dakota Jade T., an Infant, by her Mother and Natural Guardian, Tiesha J., et al., Plaintiffs-Respondents,
New York City Housing Authority, Defendant-Appellant.
Herzfeld & Rubin, P.C., New York (Miriam Skolnik of
counsel), for appellant.
Rheingold, Valet, Rheingold, Ruffo & Giuffra, LLP, New
York (Jeremy A. Hellman of counsel), for respondents.
Richter, J.P., Manzanet-Daniels, Gische, Webber, Kahn, JJ.
Supreme Court, Bronx County (Barry Salman, J.), entered
January 28, 2016, which denied defendant's motion for
summary judgment dismissing the complaint, unanimously
affirmed, without costs.
court properly denied defendant New York City Housing
Authority's (NYCHA) motion for summary judgment. The
subject child, Dakota Jade T., born in 2005, was diagnosed as
having elevated blood lead levels in 2010, and some of the
surfaces that the Department of Health (DOH) tested in each
of the subject apartments had positive results for lead.
NYCHA, the owner and operator of the subject premises, was
responsible for maintaining both apartments. The conflicting
test results submitted by NYCHA and testimony by its expert
that DOH's positive readings were affected by rebar in
the concrete ceilings, did not satisfy NYCHA's burden on
summary judgment to disprove the existence of lead.
Additionally, NYCHA did not demonstrate that it did not know
about lead paint in the building. At the very least there are
genuine issues of fact regarding whether NYCHA had knowledge
of lead paint danger in the apartments.
has resided with her mother, plaintiff Tiesha J. (plaintiff),
in apartment 20S since birth. During a routine blood test on
January 20, 2010, Dakota was diagnosed with lead poisoning;
her blood lead level was 45ug/dl. Prior to her diagnosis,
Dakota's aunt used to babysit for Dakota four days a week
in her apartment from which she runs a City-approved day care
business. The aunt's apartment (14P), is in the same
building that Dakota lives in. Plaintiff claims that she made
numerous complaints to NYCHA about peeling paint in her
apartment. When deposed, she testified that she made these
complaints over a period of years to NYCHA's employees.
The complaints were made orally, in person, and by telephone,
and once she filled out a repair request form at NYCHA's
management office. She also filed a complaint with 311. No
one, however, came to inspect her apartment until after
Dakota's diagnosis. Plaintiff says she saw Dakota (then a
toddler) playing with peeling paint chips on the floor,
sometimes putting them into her mouth. The aunt, who was also
deposed, testified that she also complained about peeling
paint in her apartment, but no one came to inspect.
Lugo, a former NYCHA employee and superintendent at the
subject building from 2009 until April 2013, was deposed. He
testified that several tenants came in with reports showing
that a child they lived with had elevated blood-level lead or
lead poisoning. Upon such a report being made, NYCHA would
inspect the apartment, but did not notify DOH. Lugo testified
several parents came in with positive results while he was
employed and that several apartments were inspected. Lugo
could not remember exactly how many, but this happened
approximately five times. He could not recall instances when
an apartment underwent lead abatement, but he also testified
that he did not know the results of any of the inspections
that were made. Lugo testified that apartments within the
subject building were painted every 3½ years.
According to Lugo, the painting was not done
"in-house" by NYCHA, but performed by a contractor.
The work was later inspected by a paint inspector, but he did
not elaborate what this entailed. He also testified he
received no special training regarding lead paint.
denies it had actual or constructive notice of peeling
lead-based paint in either apartment. It argues that it could
not have had any knowledge of lead paint because there was no
lead paint in the apartments and that it otherwise did not
know about any lead paint.
NYCHA relies on its own testing that was negative for lead
paint, DOH's lead testing came back positive. NYCHA's
arguments that these were false positives due to the manner
in which, and location from where, the samples were taken is
insufficient to disregard them as a matter of law. It is
undisputed that lead-paint violations were issued against
NYCHA. Although NYCHA filed a notice of intent to challenge
the violations (contestation), the contestation was denied by
DOH. DOH denied the contestation on the basis that the
supporting documentation NYCHA provided was "not
sufficient" to indicate that proper procedure had not
been followed by the tester or that the test results were
inaccurate. NYCHA separately argues it would be unreasonable
to conclude that lead-based paint was used to paint either
apartment because the use of lead-based paint in residential
buildings was banned in New York City in 1960 and
construction of the building was completed in 1974. The ban
on lead paint alone is not sufficient to conclusively prove
that no lead paint was used .
NYCHA prove as a matter of law, that it had no actual or
constructive notice of the existence of lead paint in the
building. Pursuant to the City's Childhood Lead Poisoning
Prevention Act (Local Law 1 of 2004), lead-based paint is
presumed to exist in a multiple dwelling unit if the building
was built before 1960. Where, as here, the building is built
between 1960 and 1978, the presumption will apply only if the
owner knows that there is lead-based paint, and a child under
the age of six lives in the apartment. Although in a pre-1960
building, paint is presumed to contain lead, the opposite is
not true; there is no presumption that paint in a building
constructed after 1960 is not lead-based. Given
plaintiff's claim, that NYCHA maintains the premises and
assumed the duty to have the apartments painted, the absence
of any evidence concerning the history of painting in the
subject apartments is insufficient for the court to rule out,
as a matter of law, notice.
 Lead paint was still available for
purchase and it was not until 1978 when the Federal
government banned the use, sale and distribution of lead
paint as a hazardous ...