Present: HON. ALLAN L. WINICK, Justice

Transcription

1 SHORT FORM ORDER SUPREME COURT STATE OF NEW YORK Present: HON. ALLAN L. WINICK, Justice RICARDO ROMERO, an infant by his mother and natural guardian, LEDIS ROMERO, and LEDIS ROMERO, individually, TRIAUIAS, PART 6 NASSAU COUNTY Plaintiff(s), against MOTION DATE: November 7,2003 MOTION SEQUENCE: 006,007 INDEX NO. 6537/99 AMES RESSA, FREDERICK GOETZ and A. JOE DiMAGGlO RESTAURANT AND PIZZERIA, INC., Defendant(s). The following papers read on this motion: Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits Briefs: Plaintiff s/petitioner s Defendant s/respondent s The motion by Defendant A. Joe DiMaggio Restaurant & Pizzaria, Inc. ( DiMaggio ) and the cross motion by defendant Ames Ressa ( Ressa ), both seeking summary judgment, are decided as hereinafter indicated. Plaintiff Ricardo Romero, (the infant plaintiff ), born on March 14, 1992, (the infant plaintiff ) was diagnosed as suffering lead poisoning while residing in an apartment in premises owned by Ressa and leased to DiMaggio. The infant plaintiff s family sublet the apartment in question from DiMaggio without a lease on a month to month basis. The

2 apartment was located at 706 Port Washington Blvd., Port Washington, NY (the premises ). The infant plaintiff resided in the apartment from March, 1992 until April 15, Defendants allege they first learned about the lead paint hazard in April, 1993 when the Nassau County Department of Health ( D.O.H. ) informed them that there were unacceptable levels of lead in the apartment (see ex J annexed to Ressa s cross motion). Defendants allege the abatement work was done to the D.O.H. s satisfaction (see ex K annexed to Ressa s cross motion). Both DiMaggio and Rissa contend they never had constructive or actual notice of the lead paint issue so as to be liable for the infant plaintiff s alleged problems. They also allege that the infant plaintiff s history of developmental delays and emotional problems were caused by the problem other than exposure to lead paint (see exhibits J, K, M, N and 0 annexed to DiMaggio s motion; see exhibits W and X annexed to Ressa s cross motion). Plaintiffs allege the defendants knew of the lead health hazard as of July They note the infant plaintiff was diagnosed with an elevated blood level on or about July 22, 1992 triggering a D.O.H. inspection. DiMaggio received a letter from the DOH on September 8, 1992 (see ex 24 annexed to plaintiffs affirmation in opposition) alerting it to _ a lead problem in an apartment bedroom. The letter was addressed to one Edward Marinelli allegedly the manager of DiMaggio. Another inspection by D.O.H. on April 6,1993 found lead paint in the common areas of the building (see exhibit 4 annexed to plaintiffs affirmation in opposition). Plaintiffs suggests the defendants did not do a complete job to the lead abatement procedures (see the sworn affidavit of plaintiff Ledis Romero ( Romero ), para. 17; ex 3 pgs 2

3 210, both are annexed to plaintiffs affirmation in opposition). Plaintiffs note the infant plaintiffs blood lead level went up following the clean up (see the Romero affidavit, para 21B; ex I and 2 annexed to plaintiffs affirmation in opposition). Plaintiffs have set forth their properly executed and sworn affidavits that indicate the infant plaintiff s problems could be traced to lead poisoning from lead paint or lead paint dust (see the affidavits of Dr. Douglas B. Savino, Dr. Theodore I. Lidsky, and William Savarese annexed to the plaintiffs affirmation in opposition). Here, the movants have produced expert affidavits that the lead paint in the subject apartment was not responsible for the infant plaintiffs problems. In opposition to the movants prima facie showing, the plaintiffs have addressed sufficient evidence including their own experts to raise triable issues of fact as to whether the lead paint/dust in the subject apartment caused the infant plaintiff to have health, learning, etc., problems. Thus, the motion papers herein have presented credibility battle among the parties experts, and issues of credibility are properly left to a jury for resolution (Barbuto v Winthrop University Hospital, 305 AD2d 623; see a/so Ferranti v America Lung Assn., 90 NY2d 623, Mason v DuPont Direct Financial Holdings, Inc., 302 AD2d 260. To impose liability upon a landlord for injuries resulting from a defective condition upon the premises, a plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that in the exercise of reasonable care, it could have been resided (Batista v Mohabir, 291 AD2d 365). Of course, Landlords without actual knowledge that an apartment contained lead based paint were not placed on constructive notice, pursuant to Multiple Residence Law 3

4 5174, of a lead hazard by flaking and peeling paint and could not be held liable for any lead exposure injuries to an infant occurring before the presence of lead paint was confir me (Cooper v County of Rennelaer, I82 M isc2d 847). Thus, Landlords have no affirmative duty outside of New York City to search out and remedy lead hazards in their apartment. To impose liability for a lead paint hazard, a plaintiff must establish that the Landlord had actual or constructive notice of and a reasonable opportunity to remedy the hazardous condition (Molina v Belasquez, _AD2d _, 2003 WL ; Vidal v Rodriquez, 301 AD2d 517). A Land lord may have constructive notice of a lead hazard in one unit by virtue of notice of a lead hazard in other units in the sa me (Perry bu ilding v Walter, 275 AD2d 495). An out of possession Landlord may not be liable for injuries that occur on the prem ises unless the entity retained control of the pre m ises or is contractually obligated to repair the unsafe condition (Jackson v U.S. Tennis As&n., Inc., 294 AD2d 470). Thus, a Landlord cannot be held liable under a theory of constructive notice if the p laintiff does not plead or prove the existence of a significant structural or design defect that is contrary to a specific statutory safety provision (Jackson v U.S. Tennis Ass n. Inc.). Here, the plaintiffs point to the afore mentioned notice D imagg to ioin September, 1992 as to the lead paint issue. For the purposes herein, the plaintiffs raise an issue of fact as to whether lead paint/dust in a residential apart ment is such a defect. The lease (see ex D annexed to D imaggio smo tion) allo wed Ressa to enter the premises (para. 13) to exercise same, make repairs, replacements and improvements including those for the purpose of complying with the law, (i.e., such a lead paint hazard) To establish that a Landlord is liable for a lead paint condition, the plaintiff must 4

5 establish that the Landlord had actual or constructive notice of, and a reasonable _ opportunity to remedy, the hazardous condition and failed to do so (Darden v Foothill Mountain, Inc., 298 AD2d 486). Clearly, the record before this court, despite the movants contention otherwise raises issues of fact as to whether movants, after the actual notice of the lead paint, properly remedied the situation. As to actual notice for Ressa the deposition of Ressa (see plaintiffs ex 6) reveals that Ressa had notice of the September, 1992 notice from D.O.H. (See pgs. 47) and his son, Anthony Ressa, an employer of Ressa s real estate managing firm was at the D.O.H. inspections. (pgs 5051) Ressa also notes he visited the subject premises on numerous times (p. 41). He states in his deposition that he was and is an experienced Landlord with many property holdings. Ressa stated he knew the subject property was built in the 1930 s. From this vast experience he my have had constructive notice of the lead paint issue. A party (owner, lessor) may be charged with constructive notice because of awareness of conditions indicating a lead paint hazard to young children (Galicia v Ramos, 303 AD2d 631). A triable issue of fact is raised by a plaintifftenant in constructive notice lead paint poisoning matters by establishing that the Landlord retained a right of entry to the premises and assumed a duty to make repairs, knew the apartment was constructed at a time before leadbased interior paint was barred, was aware of peeling paint on the premises, knew the hazard of lead based paint to young children, and knew that a young child lived in the * apartment (Chapman v Silber, 97 NY2d 9). 5

6 Here, the plaintiffs have clearly shown that DiMaggio had actual knowledge of the situation in September, As noted, there are issues of fact as to both defendants constructive knowledge of the hazard. Plaintiffs demonstrated the existence of an issue of fact as to whether the infant plaintiff suffered additional injuries after the defendant allegedly received actual notice of the condition (Darden v Foothill Mountain, Inc., 298 AD2d 486). Clearly, from the herein record the court cannot determine the first instance of the alleged injury sustained by the infant plaintiff nor can the court determine if or when the infant plaintiff sustained his alleged problems after the actual notice of the problem by defendants (in September, 1992) reflected in the record. Defendants request for partial summary judgment (before the actual notice date) is not viable. There are too many issues of fact raised herein as to constructive notice prior to September, Credibility of witnesses, truthfulness and accuracy of testimony, whether contradicted or not, and the signifiance of weaknesses and discrepancies are issues for the trier of facts (Pedone v B & B Equipment Co., Inc., 239 AD2d 397). The various versions of facts presented herein by the plaintiffs and defendants cannot be resolved on the summary judgment motion herein. The plaintiffs have, of course, the ultimate burden of proving that the defendants herein breached a legal duty owed plaintiffs and that the alleged breach was the proximate cause of the injuries in question (Dugue v 7878 Newkirk Management Corp., 301 AD2d 560). Here, we are not concerned about plaintiffs ultimate burden at trial. The court is focused on triable issues of fact. 6

7 The court disagrees with the movants contention that the plaintiffs affirmation in opposition does not contain trial viable material and matters so as to be sufficient to successfully oppose their respective motion and crossmotion. First, evidence otherwise excusable at trial, may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the Court s determination (Largotta v Recife Realty Co., 254 AD2d 225). The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of material fact, and the moving party is, therefore, entitled. to judgment as a matter of law (Alvarez vprospect Hosp. 68 NY2d 320). Thus, when faced with a summary judgment motion, a court s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller vjourna/ News, 211 AD2d ). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062). To be entitled to summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Town of Newburgh v Pekar, 298 AD2d 451). Here, the movants have not met their respective burdens. Accordingly, the motion by DiMaggio and the crossmotion by Ressa are denied. This constitutes the order of the court. Dated: December 22, 2003