656 W. 162nd St. Tenants Ass'n v. Edelstein, Index No. LT-301326-21/NY

• Court: New York Civil Court
• Writing for the Court: Frances A. Ortiz, J.
• Citation: 73 Misc.3d 820,155 N.Y.S.3d 736
• Docket Number: Index No. LT-301326-21/NY
• Decision Date: 08 October 2021
• Parties: 656 WEST 162ND STREET TENANTS ASSOCIATION, Lucia Ortiz, Santa Naut, Horatio Ortega, Kate Gill, Peter Friedrichs, Lina Rojas, Rose Smith, Lovisa Brown, William Durnell, Deon Durrant, Ysabel De Luna, Iris Lopez, Marvis Martin, Deborah Johnson, Maria Guzman, Chimere Ezuma, Ellen White, Jose Morel, Marino Polanco, Carmen Jerez, and William Ynoa, Petitioners-Tenants, v. Susan EDELSTEIN and 656 Realty, LLC, Respondents-Owners, and Department of Housing Preservation and Development of the City of New York and Department of Buildings of the City of New York, Co-Respondents.

73 Misc.3d 820
155 N.Y.S.3d 736

656 WEST 162ND STREET TENANTS ASSOCIATION, Lucia Ortiz, Santa Naut, Horatio Ortega, Kate Gill, Peter Friedrichs, Lina Rojas, Rose Smith, Lovisa Brown, William Durnell, Deon Durrant, Ysabel De Luna, Iris Lopez, Marvis Martin, Deborah Johnson, Maria Guzman, Chimere Ezuma, Ellen White, Jose Morel, Marino Polanco, Carmen Jerez, and William Ynoa, Petitioners-Tenants,
v.
Susan EDELSTEIN and 656 Realty, LLC, Respondents-Owners,
and
Department of Housing Preservation and Development of the City of New York and Department of Buildings of the City of New York, Co-Respondents.

Index No. LT-301326-21/NY

Civil Court, City of New York, New York County.

Decided on October 8, 2021

155 N.Y.S.3d 737

Attorney for petitioners: Matthew J. Chachere, Esq., Northern Manhattan Improvement Corp. Legal Services, 45 Wadsworth Avenue, New York, NY 10033, (929) 314-3550, matthewchachere@nmic.org

Attorney for respondents Susan Edelstein and another: Leonard R. Kaplain, Esq., Kaplain & Duval, LLP, 647 Franklin Avenue, Suite 202 Garden City, NY 11530, (516) 855-9200, lkaplain@kdlawllp.com

Attorney for respondent HPD: Department of Housing Preservation & Development, Cesar Estrada Esq., 100 Gold Street, New York, NY 10038, (212) 863-8296, estradac@hpd.nyc.gov

Frances A. Ortiz, J.

73 Misc.3d 821

The Decision/Order of this Court on petitioners’ motion directing Department of Housing Preservation and Development

155 N.Y.S.3d 738

("HPD") to enforce certain City of New York Administrative Code provisions, directing respondent/owners to produce forthwith to them all records pertaining to compliance with those provisions and imposing penalties against respondent/owners in the event that there is a determination that respondent/owners failed to comply is as follows:

In this Housing Part ("HP") action, petitioner-tenants move the court to compel respondent-owners to abide by the notice and reporting requirements of Local Law No. 1 (2004) of City of NY.¹ Prior to this motion, the court had been familiar with the portion of Local Law 1 relating to HPD investigations of tenant lead paint complaints. The court had not, however, seen any litigation in the HP concerning an owners’ responsibility to notify occupants and investigate for the presence of lead-based paint in dwelling units. These responsibility requirements are specifically detailed in Administrative Code of City of NY § 27-2056.4. As such, a primer into the dangers of lead paint and the legislative response to lead-based paint poisoning is instructive.

History of Lead Paint Regulation

The dangers of lead and lead poisoning have been known since the early 1900's. Despite the concerns of doctors and other scientists, the United States continued to allow the use of toxic lead in many products including gasoline and paint. Finally, in

73 Misc.3d 822

1960, New York City banned the use or sale of lead-based paint on interior building surfaces. NY City Health Code § 173.13. The federal government followed suit and banned lead-based paint in 1978. 16 CFR §§ 1303.1 — 1303. 5.

The dangers of lead paint are known more now. High blood lead levels can produce brain damage, coma or death, and even relatively low levels can lead to significant nervous system damage. Juarez by Juarez v. Wavecrest Mgmt. Team Ltd. , 88 N.Y.2d 628, 640—41, 649 N.Y.S.2d 115, 672 N.E.2d 135 (1996), (citing 1995 Report of Lead—Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing, at 3; Oct. 1991 Statement by Centers for Disease Control and Prevention, Preventing Lead Poisoning in Young Children, at 7—10 [4th rev] ). Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning. Id. This damage includes nervous and reproductive system disorders, delays in neurological and physical development, cognitive and behavioral changes, and hypertension, most of which are irreversible. Williamsburg Around the Bridge Block Ass'n v. Giuliani , 167 Misc. 2d 980, 984, 637 N.Y.S.2d 241 (Sup. Ct. 1995), aff'd, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1996), as modified (Oct. 1, 1996). Children generally contract lead poisoning through ingestion and very young children are particularly vulnerable because they tend to put their hands in their mouths more often than adults. Id.

The Local Law 1 Amendment of 2004

Since New York City banned lead paint in 1960, it has been confronted with the vexing problem of how to eradicate the lead paint that had already been used in residences up to that point. Finding that lead poisoning from lead paint is a preventable childhood disease and a public health crisis, the New York City Council enacted the New York City Childhood Lead Poisoning Prevention Act of 20003

155 N.Y.S.3d 739

("CLPPA") in 2004 to attempt to eradicate lead poisoning by 2010. Statement of Findings and Purpose to CLPPA at Admin. Code § 27-2056.1. Portions of the CLPPA functioned as an amendment to the terms of Local Law 1.

To eliminate childhood lead poisoning, the legislature included more stringent reporting and notice requirements for landlords. Before the 2004 amendments to Local Law 1, lead paint remediation was triggered when tenants complained about the possibility of lead paint inside of an apartment where a child under the age of six resides. Once notified by a tenant, landlords would have an affirmative

73 Misc.3d 823

obligation to investigate the apartment for lead paint and remediate if necessary. No obligation existed, however, unless the tenant raised the issue with the landlord. The 2004 amendment to Local Law 1² forced...