Brown v. Maple3 Llc

• Decision Date: 23 August 2011
• Citation: 2011 N.Y. Slip Op. 06334,88 A.D.3d 224,928 N.Y.S.2d 740
• Parties: Amaiya A. BROWN, etc., et al., respondents,v.MAPLE3, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 224
928 N.Y.S.2d 740
2011 N.Y. Slip Op. 06334

Amaiya A. BROWN, etc., et al., respondents,
v.
MAPLE3, LLC, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 23, 2011.

[928 N.Y.S.2d 741]

Landman Corsi Ballaine & Ford P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. [Steven J. Ahmuty, Jr., Timothy R. Capowski, and Deirdre E. Tracey], of counsel), for appellant.Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, Delsia G. Marshall, and Aileen Gutierrez–Glennon of counsel), for respondents.MARK C. DILLON, J.P. THOMAS A. DICKERSON L. PRISCILLA HALL SHERI S. ROMAN, JJ.ROMAN, J.[88 A.D.3d 226] Introduction

The infant Amaiya A. Brown, on whose behalf her mother, Alexandra Fildere–Brown, commenced this action, allegedly sustained injuries as a result of exposure to lead paint in a building owned by the defendant, Maple3, LLC (hereinafter the landlord). Among the primary issues we consider on this appeal is whether a lessee's adult daughter and infant grandchild have standing to assert a cause of action under the Residential Lead–Based Paint Hazard Reduction Act (42 USC § 4851 et seq. ; hereinafter the RLPHRA) for injuries allegedly sustained as a result of a landlord's alleged failure to disclose the presence of known lead-based paint hazards. We conclude that the plaintiffs lack standing to maintain a cause of action under the RLPHRA. Additionally, as will also be discussed, we find that the landlord's conduct in this case was not so egregious as to support a claim for punitive damages. Accordingly, the Supreme Court should have granted those branches of the landlord's motion which were for summary judgment dismissing the cause of action alleging a violation of the RLPHRA and the claim for punitive damages.

Factual and Procedural Background

In 1993 or 1994, Bonne Annee St. Anne (hereinafter the grandmother) rented an apartment in a residential building owned by the landlord, pursuant to a lease which was renewable every two years. At that time, the grandmother's daughter, Alexandra Fildere–Brown, was twelve years old and resided in the apartment with the

[928 N.Y.S.2d 742]

grandmother. In 2003, Alexandra, who was still residing in the apartment, gave birth to Amaiya A. Brown.

Alexandra testified at her deposition that the landlord painted and performed repairs inside the apartment on several occasions prior to the birth of her daughter, sometimes in response to verbal complaints about the condition of the paint in the apartment. The grandmother testified that there was peeling paint in a “bunch of places” in the apartment and that she complained about the condition every day to the superintendent.

In September 2004, when Amaiya was about one year old, she was tested and found to have a blood-lead level of less than three micrograms per deciliter. In November 2005, Amaiya's [88 A.D.3d 227] blood-lead level rose to 20 micrograms per deciliter. The following month, the New York City Department of Health (hereinafter the Department of Health) inspected the apartment and found elevated levels of lead on several painted surfaces. As a result, on December 29, 2005, the Department of Health issued an order directing the landlord to abate all lead paint violations and to complete all abatement work within five days. Alexandra and the grandmother identified the landlord's renovation of the bathroom as the potential source of Amaiya's exposure to lead. Alexandra testified at her deposition that when the landlord renovated the bathroom, there were “particles ... everywhere” and that Amaiya had put some “white stuff” in her mouth.

On January 5, 2006, the Department of Health issued an inspection report indicating that all violations remained. By February 7, 2006, Amaiya's blood-lead level had decreased to 14 micrograms per deciliter. Additional inspection reports dated February 7, 2006, February 16, 2006, and February 24, 2006, indicated that partial violations remained. The Department of Health issued an inspection report dated March 3, 2006, stating that a radiator and exterior door opening had not been properly abated, as there was visible evidence of old paint beneath a new layer. A subsequent inspection report dated March 9, 2006, provided that only one violation remained. The Department of Health issued a final inspection report on March 20, 2006, indicating that all violations had been cured. By May 22, 2006, Amaiya's blood-lead level had fallen to six micrograms per deciliter.

In December 2006, the grandmother renewed her lease. On this occasion, for the first time, Alexandra co-signed the lease.

In June 2007, Amaiya, by her mother and natural guardian, Alexandra, and Alexandra (hereinafter together the plaintiffs) commenced this action against the landlord. The complaint set forth two causes of action, one sounding in common-law negligence and the other alleging a violation of the RLPHRA. With respect to the RLPHRA cause of action, the complaint alleged that the landlord failed to disclose the presence of known lead-based paint and/or lead-based paint hazards, and failed to provide the plaintiffs with all records and reports pertaining to same. The complaint sought to recover damages on the first two causes of action, and also set forth a demand for punitive damages based upon the landlord's alleged “wanton and reckless” acts and omissions.

In March 2008, the landlord requested that the plaintiffs discontinue their RLPHRA cause of action, since only a [88 A.D.3d 228] purchaser or lessee of an apartment had standing to assert such a claim.

In their verified bill of particulars, the plaintiffs alleged that the landlord had notice that the infant plaintiff resided in the apartment. In addition, the plaintiffs asserted that they were not alleging a single

[928 N.Y.S.2d 743]

occurrence, but multiple occurrences and continuing exposure to lead-based paint and dust.The Landlord's Motion for Summary Judgment

By notice of motion dated September 28, 2009, the landlord moved, inter alia, for summary judgment dismissing the cause of action alleging a violation of the RLPHRA and the claim for punitive damages. In addition, the landlord sought to impose sanctions based upon the plaintiffs' refusal to discontinue their RLPHRA cause of action.

With respect to the RLPHRA cause of action, the landlord argued that the statute, which mandated disclosure of known information on lead-based paint and lead-based paint hazards, limited recovery for a violation of its provisions only to a “purchaser or lessee.” The landlord noted that the grandmother was the lessee of the subject apartment, not the plaintiffs. The landlord asserted that the grandmother was identified on each of the lease agreements/renewals as the tenant-of-record and that she had executed each of those documents identifying herself as the “tenant.” The landlord maintained that since Amaiya was not the “purchaser or lessee” of the apartment, she lacked standing to assert a cause of action under the RLPHRA. Accordingly, the landlord argued that the infant plaintiff's RLPHRA cause of action, as well as Alexandra's derivative claim, should be dismissed.

Regarding the claim for punitive damages, the landlord argued that it could not be proven as a matter of law that it acted with the requisite “high degree of moral culpability” or “willful or wanton” disregard for Amaiya's health and safety so as to support an award of punitive damages. The landlord asserted that it responded reasonably and expeditiously to abate the few isolated areas of alleged lead-based paint conditions. The landlord pointed out that all of the violations were abated by March 20, 2006, and that by May 22, 2006, the infant's blood-lead level had dropped to six micrograms per deciliter, a non-actionable level. In support of its motion, the landlord submitted, among other things, the deposition testimony, the Department of Health's reports, the lead tests, and the lease documents.

[88 A.D.3d 229] The Plaintiffs' Opposition

In opposition to the landlord's motion, the plaintiffs argued that they had standing to assert a RLPHRA cause of action inasmuch as the grandmother and the plaintiffs were a family unit that leased the subject apartment from the landlord. The plaintiffs asserted that the landlord was aware that the entire family resided in the apartment throughout the plaintiffs' tenancy. The plaintiffs contended that where, as here, a leasehold is involved, Amaiya's interests were clearly within the zone of interests protected by the statute. The plaintiffs claimed in this regard that, unlike a purchaser of real property, tenants have no substantive control over the maintenance of their leasehold. Surely, the plaintiffs asserted, the intent of the drafters of the RLPHRA was not to exclude children that were lead poisoned from seeking damages. According to the plaintiffs, if such were the case, landlords would have no incentive to adhere to the statute's disclosure requirements. The plaintiffs asserted that, as a matter of public policy, the cause of action under the RLPHRA should not be dismissed because protecting Amaiya was in accord with the class of persons the statute was intended to protect. Further, the plaintiffs argued that Alexandra had paid the rent since 2004, and that the landlord's acceptance of these rent payments made Alexandra a “de facto” tenant, thereby giving her standing to assert a...