Espinal by Castillo v. 570 W. 156th Associates

• Decision Date: 18 November 1997
• Citation: Espinal by Castillo v. 570 W. 156th Associates, 667 N.Y.S.2d 223, 174 Misc.2d 860 (N.Y. Sup. Ct. 1997)
• Parties: , 123 Ed. Law Rep. 847, 1997 N.Y. Slip Op. 97,649 Jenny ESPINAL, an Infant, by Her Mother and Natural Guardian, Silveria CASTILLO, Plaintiff, v. 570 W. 156TH ASSOCIATES, et al., Defendants. Ricardo RAMOS, Individually and Doing Business as Richard Management Co., Third-Party Plaintiffs, v. NORTH PRESBYTERIAN HEAD START CHILD DEVELOPMENT CENTER, et al., Third-Party Defendants. 570 W. 156TH ASSOCIATES, et al., Second Third-Party Plaintiffs, v. TURTLE REALTY CORP., Second Third-Party Defendant. Ricardo RAMOS, Individually and Doing Business as Richard Management Co., Third Third-Party Plaintiff, v. CITY OF NEW YORK, et al., Third Third-Party Defendants.
• Court: New York Supreme Court

Page 223

667 N.Y.S.2d 223

174 Misc.2d 860, 123 Ed. Law Rep. 847,

1997 N.Y. Slip Op. 97,649

Jenny ESPINAL, an Infant, by Her Mother and NaturalGuardian, Silveria CASTILLO, Plaintiff, v.570 W. 156TH ASSOCIATES, et al., Defendants.

Ricardo RAMOS, Individually and Doing Business as Richard

Management Co., Third-Party Plaintiffs, v.NORTH PRESBYTERIAN HEAD START CHILD DEVELOPMENT CENTER, et

al., Third-Party Defendants.

570 W. 156TH ASSOCIATES, et al., SecondThird-Party Plaintiffs, v.TURTLE REALTY CORP., SecondThird-Party Defendant.

Ricardo RAMOS, Individually and Doing Business as Richard

Management Co., ThirdThird-Party Plaintiff, v.CITY OF NEW YORK, et al., ThirdThird-Party Defendants.

Supreme Court, New York County.

Nov. 18, 1997.

Michael E. Pressman, New York City, for North Presbyterian Church of New York City.

Schneider, Kleinick, Weitz, Damashek & Shoot, New York City, for Jenny Espinal.

Landman, Corsi, Ballaine & Ford, P.C., New York City, for570 W. 156th Associates and others.

Rivkin, Radler & Kremer, for Ricardo Ramos.

Alio, McDonough & Jennings, New York City, for North Presbyterian Head Start Child Development Center.

Paul A. Crotty, CorporationCounsel, for City of New York and another.

LOUIS B. YORK, Justice.

North Presbyterian Church ("North Presbyterian"), which is sued in this action as "Trustees of the North Presbyterian Church of New York City," moves for an order of summary judgment dismissing all claims, cross-claims and third-party claims asserted against it.Jenny Espinal, the infant plaintiff; and Ricardo Ramos, both individually and doing business as Richard Management Co.(collectively referred to as "Richard Management")--who are defendants, third-partyplaintiffs and third third-partyplaintiffs in this lawsuit--separately oppose North Presbyterian's motion.The motion forces the court to consider what appears to be a novel legal issue: the liability of the owner of a building which houses a school, after school or daycare program--in this case, a Head Start Program--for lead poisoning when the owner has prior notice of a peeling paint condition.For the reasons discussed below, the court find an issue of fact regarding North Presbyterian's liability and thus denies its motion.

This lawsuit involves allegations regarding lead-paint poisoning.In her original complaint, dated August 23, 1993, plaintiff alleged that between 1982 and 1988, while she and her mother were tenants of the building located at 570 West 156th Street, she was exposed to lead-paint hazards; and that, as a result, she suffers from elevated lead levels.Plaintiff was born on March 12, 1981, and thus was between one and seven years old during the time of her alleged exposure.Originally, she asserted claims against 570 West 156th Street Associates("570 West"), King David Management Company("David Management") and Richard Management, all of which allegedly are affiliated with the building as its owners and managing agents and chargeable with maintaining and repairing the building; and against Gerald and Judith Ziering, who are partners in both 570 West and David Management.

Then, in November of 1994, Richard Management initiated a third party action against North Presbyterian and the North Presbyterian Head Start Child Development Center ("Head Start").The third party complaint alleged that, during part of the time encompassed by the complaint, plaintiff attended the Head Start program at North Presbyterian; that North Presbyterian's building, which also housed Head Start, contained unsafe levels of lead; and that it was plaintiff's exposure to lead while at Head Start, rather than any exposure to lead at her dwelling place, which caused her to have elevated lead levels.

Shortly thereafter, plaintiff amended her complaint to include claims against both third-party defendants.In her amended complaint, plaintiff echoes Richard Management's contention that she was exposed to lead paint while attending Head Start.However, she maintains her assertion that she was exposed to lead at her dwelling place, and states that the exposure at Head Start exacerbated rather than caused her health problems.

North Presbyterian makes three arguments in support of its motion: (1) that it is not required to comply with Administrative Code § 27-2013 or the relevant provisions of the Multiple Dwelling Law, and neither Richard Management nor plaintiff has shown that North Presbyterian had prior notice of the lead condition at the church building; (2) that, even if plaintiff's allegations are true, plaintiff has not shown that any lead paint problems at North Presbyterian contributed to her lead poisoning condition; and (3) that plaintiff has failed to show proximate cause with respect to North Presbyterian.

I.Notice

Generally, "for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the 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 should have been corrected."Juarez v. Wavecrest Management Team Ltd., 88 N.Y.2d 628, 646, 649 N.Y.S.2d 115, 122, 672 N.E.2d 135, 142(1996).However, as the Court of Appeals recently stated, various provisions of the Multiple Dwelling Law partially abrogate the common law with respect to multiple dwellings.In particular, Local Laws, 1982, No. 1 of the City of New York§ 1(Local Law 1), codified at Administrative Code § 27-2013(h)(2), "establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition."Juarez, 88 N.Y.2d at 647, 649 N.Y.S.2d at 123, 672 N.E.2d at 143.Paragraph one of that section establishes the owner's duty to remove paint or similar surfacecoating material if the lead level exceeds 0.5 percent of metallic lead or has a reading of 0.7 milligrams of lead per square centimeter or greater.Seeid. at 641-42, 649 N.Y.S.2d at 119, 672 N.E.2d at 139.Read together, these provisions give the landlord an implicit right of entry to correct hazardous lead conditions and sufficient control to sustain a finding of liability.Id. at 643, 649 N.Y.S.2d at 120, 672 N.E.2d at 140.Thus, if there is a peeling paint condition in an apartment inhabited by a child of six or under in a building constructed prior to 1960, there is a rebuttable presumption of liability against the landlord that the landlord can only rebut by showing that "a lead paint hazard existed despite his diligent and reasonable efforts to prevent it."Id. at 644, 649 N.Y.S.2d at 121, 672 N.E.2d at 141(emphasis in original; citation and internal quotation marks omitted).

North Presbyterian emphasizes that the principles enunciated in Juarez only apply to a landlords' liability for lead paint conditions in residential dwellings.Therefore, it claims, it can only be chargeable with common law negligence.According to North Presbyterian, there is no evidence that it had any notice there was a lead paint condition in the building until late May of 1986, when the Department of Health issued a notice of lead paint violations for certain parts of the building.It also asserts that plaintiff was in the Head Start program during 1984 and 1985, and that she remained enrolled until June of 1986 at the latest.It further alleges that this is the first notice it has received concerning any problem in classroom number two, plaintiff's classroom throughout her time in the Head Start Program.Because plaintiff cannot show that it had either actual or constructive notice of the lead paint problem prior to the May 1986 violation notice, North Presbyterian concludes, it cannot be held liable for plaintiff's lead paint exposure and all claims against it should be dismissed.

Plaintiff and Richard Management both argue that, at the very least, there is an issue of fact regarding whether North Presbyterian had prior notice of the lead paint problem in its building.Both parties refer to the 1986 notice, which they state North Presbyterian actually received in an April 1, 1986 citation from the Department of Health.That citation listed violations including (1) peeling paint and (2) dust and dirt accumulating in classroom number two.Plaintiff also annexes a copy of a May 5, 1977 report from the Bureau of Sanitary Inspections of the Department of Health stating that, among other things, there was peeling paint in classroom number one and in the cellar kitchen, and that there were holes in the kitchen ceiling above the stove.Together, these parties assert, this raises an issue of fact as to whether North Presbyterian is chargeable with constructive notice of the lead paint condition.

North Presbyterian is correct that Juarez is not directly controlling in this instance.As already explained, the Court of Appeals based its decision on provisions of Local Law 1 that place duties only on the owners of multiple dwelling units.Nonetheless, this court believes that a standard higher than common law negligence applies here.Courts have repeatedly held that schools are subject to a higher standard of care.Instead, they must exert "the same [duty] of care and supervision over the pupils under [their] control as a reasonably prudent parent would exercise under the same circumstances."Mirand v. City of New York, 190 A.D.2d 282, 287-88, 598 N.Y.S.2d 464, 468(1st Dept.1993)(citations and internal quotation marks omitted), aff'd, 84 N.Y.2d 44, 614 N.Y.S.2d 372, 637 N.E.2d 263(1994).A school owes a special duty to its students because, by taking compulsory custody over them, it temporarily deprives them of the protection of their parents and guardians.Id. at 288, 598 N.Y.S.2d at 468.

At least one court has extended this standard of care to preschool programs.Enright v. Busy Bee Playschool, 164 Misc.2d 415, 625 N.Y.S.2d 453(Sup.Ct. Rockland County1995)....