Chapman v. Silber

• Decision Date: 15 November 2001
• Citation: Chapman v. Silber, 760 N.E.2d 329, 734 N.Y.S.2d 541, 97 N.Y.2d 9 (N.Y. 2001)
• Parties: JAMES C. CHAPMAN et al., Individually and as Parents and Guardians of JAQUAN CHAPMAN, an Infant, Appellants, v. DENNIS SILBER et al., Respondents. CARLISA STOVER, Individually and as Parent and Guardian of EVERTON M. LEWIS, an Infant, Appellant, v. YOLANDO ROBILOTTO, as Executor of JAMES O'CONNOR, Deceased, Respondent.
• Court: New York Court of Appeals Court of Appeals

97 N.Y.2d 9

760 N.E.2d 329

734 N.Y.S.2d 541

JAMES C. CHAPMAN et al., Individually and as Parents and Guardians of JAQUAN CHAPMAN, an Infant, Appellants, v.DENNIS SILBER et al., Respondents.

CARLISA STOVER, Individually and as Parent and Guardian of EVERTON M. LEWIS, an Infant, Appellant, v.YOLANDO ROBILOTTO, as Executor of JAMES O'CONNOR, Deceased, Respondent.

Court of Appeals of the State of New York.

Argued September 6, 2001.

Decided November 15, 2001.

O'Connell and Aronowitz, Albany (Peter Danziger and Mo Athari of counsel), for appellants in the first above-entitled action.

Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam (Derek L. Hayden of counsel), for Dennis Silber, respondent in the first above-entitled action.

Bohl, Della Rocca & Dorfman, P. C., Albany (John T. Casey, Jr., of counsel), for Gertrude Silber and others, respondents in the first above-entitled action.O'Connell and Aronowitz, Albany (Peter Danziger and Mo Athari of counsel), for appellants in the second above-entitled action.

Friedman, Hirschen, Miller & Campito, P. C., Schenectady (Peter J. Camp of counsel), for respondent in the second above-entitled action.

Northern Manhattan Improvement Corporation Legal Services,New York City(Kenneth Rosenfeld, Matthew J. Chachère and Theodora Galacatos of counsel), for New York City Coalition to End Lead Poisoning and others, amici curiae, in the first and second above-entitled actions.

Skadden, Arps, Slate, Meagher & Flom L. L. P.,New York City(Sheila L. Birnbaum, Mark S. Cheffo and Mary Ann Le Fort of counsel), and Goodwin Proctor L. L. P.(Joanne M. Gray and Christopher J. Garvey of counsel), for New York State Builders Association and others, amici curiae, in the first and second above-entitled actions.

Dennis A. Kaufman, Syracuse, Lewis Liebler and Lawrence R. Sheets for Legal Services of Central New York and others, amici curiae, in the second above-entitled action.Friedlander & Friedlander, P.C.,New York City(William S. Friedlander of counsel), for New York State Trial Lawyers Association, amicus curiae, in the second above-entitled action.

Chief Judge KAYE and Judges SMITH, LEVINE, WESLEY and ROSENBLATT concur; Judge GRAFFEO taking no part.

OPINION OF THE COURT

CIPARICK, J.

What evidence of notice must a plaintiff-tenant in a lead paint poisoning case proffer in order to survive defendant-landlord's motion for summary judgment?We conclude that, absent controlling legislation, a triable issue of fact is raised when a plaintiff shows that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.Because plaintiffs in Chapman have raised an issue of fact as to defendants' notice of a high degree of risk that a dangerous lead paint hazard existed, the order of the Appellate Division dismissing the complaint should be reversed.Conversely, since plaintiff in Stover failed to raise such an issue, no question of fact precluding summary judgment exists and the order of the Appellate Division dismissing that case should be affirmed.

I

Chapman v Silber

In August 1994, plaintiffs James and Sallie Chapman rented the second floor apartment at 443 Myrtle Avenue in Albany from Dennis Silber, Jay Silber and Gertrude Silber.On September 23, 1994, shortly after the Chapmans moved into the apartment, Dennis and Gertrude conveyed their interests in the property to Jay and his wife, Judith Harrington.All four were named as defendants and will be collectively referred to as the "landlord."

The two-year lease between the parties states that "[t]he tenant must maintain the apartment" and that "[t]he tenant agrees, at tenant's own cost to make all repairs to the apartment * * * whenever the need results from the tenant's acts or neglect."The lease further provides "[t]he tenant agrees to allow the landlord to enter the leased premises at any reasonable hour to repair, inspect, install or work * * * and to perform such other work that the landlord may decide is necessary."

The facts as stated herein are taken from the parties' affidavits and deposition testimony.The Chapmans moved into the apartment with their three children, including one-year-old Jaquan.Before they moved in, Dennis Silber painted the apartment.Mrs. Chapman noted that the apartment had been "redone" but that the window sills appeared old and the paint on the second floor porch was chipped and peeling.In spring 1995, the Chapmans observed that the condition of the paint on their porch had deteriorated.As the weather got warmer and the family began to open their windows more frequently, Mrs. Chapman also noticed that the paint in the window tracks was chipped and peeling and that the window sills held an accumulation of paint chips and dust.Mrs. Chapman claims that by July 1995, the condition of the paint in both areas had worsened.

Mrs. Chapman first complained about peeling paint in April or May 1995, when she told defendantJay Silber that there were large "chunks" of peeling paint on the front porch.She again complained to him about the porch in July 1995 at which time he promised he would take care of the situation.He did so by paying James Chapman $300 to paint the porch.

In addition to these complaints, Mrs. Chapman claims that Dennis Silber, Jay Silber and Judith Harrington all were in the upstairs apartment during her tenancy and each saw the condition of the paint.Dennis came to the apartment to repair a jammed window one week after the Chapmans moved in.Jay Silber and Judith Harrington came to the apartment in October or November 1994 to take over day-to-day responsibility for the apartment and to collect the rent.

While admitting his presence in the apartment at various times, Dennis Silber denied seeing chipped or peeling paint despite the fact that he and his wife resided in that apartment prior to the Chapman tenancy.He also painted the apartment before the Chapmans rented it and claims that the front porch was scuffed, but not peeling, at the time the Chapmans moved in.Dennis knew that the building was old and was aware of the hazards of lead paint.

Jay Silber admitted visiting the apartment on several occasions while the Chapmans were living there in order to make repairs.Jay was aware that the house was built in the early 1900's but claimed not to be aware of the dangers of lead-based paint.He did admit the possibility that chipped or peeling paint could have been present in the apartment.

Judith Harrington was aware that lead paint was dangerous.She recalled receiving a call from Sallie Chapman in summer 1995 in which Mrs. Chapman requested that something be done about chipping paint on the upstairs porch.When asked who was responsible for maintenance in the Chapman apartment, Ms. Harrington responded, "Dennis [Silber], from the point at which we rented to [the Chapmans] until he was no longer part of the partnership, then my husband Jay [Silber]."Ms. Harrington also admitted that her husband would visit the property "when something needed to be fixed."

Gertrude Silber never visited the property during the Chapman tenancy and had no knowledge of day-to-day operations.She knew, however, that lead was dangerous.

About a month after moving in, a blood test performed as part of a routine physical examination indicated that Jaquan had a moderately elevated level of lead in his blood.A second test performed about two months later showed that the condition persisted.On August 15, 1995, Jaquan's blood lead level tested so high that he had to be re-tested two days later.The August 17th test showed the same high blood lead level.The City of Albany inspected the premises and detected the presence of lead paint.On August 21, 1995, another test revealed even higher levels of lead in Jaquan's blood and he was hospitalized.The family moved out of the apartment by September 1995.James and Sallie Chapman commenced this action, in their individual capacities and as parents of Jaquan, alleging claims for common-law negligence, statutory violations evidencing negligence per se, breach of warranty and nuisance.¹Dennis Silber moved for summary judgment dismissing the complaint against him on the grounds that he conveyed his interest in the premises prior to the injury and that he did not have actual or constructive notice of a lead-based paint condition.The other defendants cross-moved on notice grounds as well.Supreme Court denied all defendants' motions finding issues of fact as to notice.The Appellate Division reversed and granted summary judgment dismissing the complaint.We granted leave to appeal (96 NY2d 709) and now reverse.

Stover v Robilotto

On February 1, 1993, Carlisa Stover, then eight months pregnant, and her five-year-old son moved into the first floor apartment of the two-family home at 22Judson Street in Albany.Her landlord was James O'Connor.²Carlisa Stover did not enter into a written lease with Mr. O'Connor but was a month-to-month tenant.The apartment had been re-painted when Ms. Stover moved in.In the year and a half she resided there, she complained to her landlord several times about her bedroom door and toilet.Each time she reported a problem, it was repaired.She never complained about the condition of paint.

Ms. Stover's younger son, Everton Lewis, was born on March 19, 1993.At about 15 months, when Everton began to walk, both Ms. Stover and her niece observed Everton on the stairway between the upstairs and downstairs apartments removing material from holes in the wall and placing it in his mouth.In September 1994, Everton's blood lead level was so high he had to be hospitalized.When the child was discharged, Ms. Stover and her...