G.M.M. v. Kimpson

• Decision Date: 19 March 2015
• Docket Number: No. 13–CV–5059.,13–CV–5059.
• Citation: 92 F.Supp.3d 53
• Parties: G.M.M., a minor child by his mother and natural guardian, Niki Hernandez–Adams, and Niki Hernandez–Adams, individually, Plaintiffs, v. Mark KIMPSON, Defendant.
• Court: U.S. District Court — Eastern District of New York

92 F.Supp.3d 53

G.M.M., a minor child by his mother and natural guardian, Niki Hernandez–Adams, and Niki Hernandez–Adams, individually, Plaintiffs

v.Mark KIMPSON, Defendant.

No. 13–CV–5059.

United States District Court, E.D. New York.

Signed March 19, 2015.

Stephen M. Cantor, Stephen M. Cantor, P.C., New York, NY, for G.M.M., Niki Hernandez–Adams.

Roger V. Archibald, Brooklyn, NY, for Mark Kimpson.

MEMORANDUM & ORDER

JACK B. WEINSTEIN, Senior District Judge.

Table of Contents

I.	Introduction	56
II.	Facts	57

A.	Purchase of 490 Macdonough Street by Defendant	57
B.	Renovations to 490 Macdonough Street	57
C.	Expectant Mother and Husband Rent Basement Apartment of 490 Macdonough Street	59

1.	Lead–Based Paint Disclosure Form	59
2.	Move–In and Birth of G.M.M.	60
3.	G.M.M.'s First–Year Medical Check–Up	60
4.	Apartment Tested For Lead Paint	61

D. Aftermath 61

1.	Plaintiffs Leave Brooklyn	61
2.	Neurological and Psychological Evaluations of G.M.M.	61

III.	Summary Judgment Standard	62
IV.	Law	63

A. New York City Childhood Lead Poisoning Prevention Act 63

1.	Original Legislation	63
2.	Application by the New York Court of Appeals	64
3.	Modification to Legislation	66
4.	New York Court of Appeals Interpretation	67
5.	Landlords' Responsibilities under Current Statute	68

B.	Federal Residential Lead–Based Paint Hazard Reduction Act	70
C.	Negligence	72
D.	Warranty of Habitability and Construction	73

V. Application of Law to Facts 74

A.	New York City Childhood Lead Poisoning Prevention Act	74
B.	Federal Residential Lead–Based Paint Hazard Reduction Act	75
C.	Negligence	75
D.	Warranty of Habitability and Construction	75

VI. Conclusion 75

I. Introduction

This case considers whether constructive notice of a hazardous lead condition applies to a landlord of a pre–1960 multiple dwelling building allegedly “gut-renovated” in 2011. It does not. Such a renovation, carried out properly, is designed to remove an existing hazardous lead condition. The sufficiency of the renovation is a question of fact that pivots on documentary and other evidence, including the credibility of expert and other witness testimony.

Plaintiffs Niki Hernandez–Adams and her son G.M.M. (“plaintiffs”) are both currently Texas residents and former tenants of 490 Macdonough Street, Brooklyn, New York 11233 (“490 Macdonough Street”). They allege that defendant Mark Kimpson, the landlord-owner, is liable for G.M.M.'s elevated blood-lead levels, discovered in the then one-year old infant by his pediatrician in August 2012. On plaintiffs' motion for summary judgment, they argue that defendant violated the New York City Childhood Lead Poisoning Prevention Act (“NYCLPA”), the Federal Residential Lead–Based Paint Hazard Reduction Act (“RLPHRA”), was negligent, and breached the tenants' warranty of habitability.

Relying on the expert reports of a professional engineer and a lead paint expert, defendant counters these claims. He argues that the gut-renovation eliminated all traces of hazardous lead paint in the apartment. He asserts that Hernandez–Adams' knee surgery, carried out during her first trimester, subjected her fetus to the dangers of anesthesia, which studies have shown can result in brain and central nervous system deficits.

In September 2012, the New York City Department of Health and Mental Hygiene (“DOHMH”) found twenty-three lead-based paint violations in 490 Macdonough Street. Kimpson does not dispute these findings, but points to the opinion of his lead expert that the device used by DOHMH identifies encapsulated lead paint that, under the law, does not qualify as a hazardous lead paint condition. He also suggests that plaintiffs' dogs severely scratched the walls and the moldings in the apartment, and thus are conceivably to blame for the lead paint findings of DOHMH.

At this stage of the litigation, substantial questions of material fact remain: first, whether the renovation sufficiently encapsulated the lead-based condition in accordance with the law; second, whether the testing results performed by DOHMH were accurate; third, whether it is possible that plaintiffs' dogs disturbed the encapsulated lead paint so that the hazardous lead condition was created by plaintiffs; and, fourth, the cause of the infant plaintiff's injury, if any.

Plaintiffs' motions for summary judgment are denied.

II. Facts

A. Purchase of 490 Macdonough Street by Defendant

In May 2011, defendant Mark Kimpson owned 490 Macdonough Street. (Pl.'s Mem. of Law in Supp. of Mot. for Summ. J. (“Pl.'s Summ. J. Mot.”) Ex. 8, Kimpson Deposition Transcript, 19:14–19, ECF No. 21–9 (“Kimpson Dep.”).) Built in 1899, this multiple-dwelling construction contained three apartments. (See Summ. J. Hr'g Tr., Mar. 19, 2015 (“Hr'g Tr.”).) The defendant had been a landlord in Brooklyn for some twenty years, but apparently knew nothing about lead regulations or requirements. (Id. )

Kimpson purchased the building in December 2010 at a New York City Public Administration Auction. (Id. ) The building was then uninhabitable, requiring complete renovation. (Kimpson Dep. 9:24–10:6.) Defendant does not recall signing any paperwork, or receiving any forms, regarding warnings about the hazards of lead-based paint. (See Hr'g Tr.) After he acquired the building, defendant did not have it tested for the presence of lead. (Kimpson Dep. 59:3–9.) Nor did he have an engineer or inspector investigate for any potentially toxic or dangerous substance. (Id. at 78:13–17.)

B. Renovations to 490 Macdonough Street

On or about February 1, 2011, Kimpson entered into an oral contract with “Randy,” whose last name is unknown, to have 490 Macdonough Street fully renovated. (See Hr'g Tr.; Kimpson Dep. 12:10–11.) Defendant never signed a formal contract with Randy, and Kimpson cannot recall whether Randy was licensed. (See Hr'g Tr.) Randy was allegedly paid in cash. (Kimpson Dep. 11:21–25.) No written receipt, bill, or invoice documenting the transaction has been located. (Id. at 12:19–21.) The following exchange took place at defendant's deposition:

Q Was the contractor or person who did the work a friend of yours or someone you knew before?

A No, it was just [an] associate, someone that recommended somebody that did work.

Q Had he ever done work for you before in any other building?

A No.

Q What's his name?

A Randy.

Q Does he have a company name?

A Not that I know of.

Q Did you pay him in cash or by check?

A Cash.

Q Was that for everything in each apartment?

A Yes.

Q Did he give you invoices or paid bills for each time you paid him in cash?

A No.

(Id. at 12:2–21.) In addition to other improvements, according to Kimpson, each of the three apartments received new five-eighths sheetrock “all around.” (Def.'s Mem. of Law in Opp. to Pl.'s Mot. for Summ. J. (“Def.'s Opp.”) Ex. 1, Kimpson Affidavit ¶ 3, ECF No. 28–1 (“Kimpson Aff.”).) He explained:

[E]verything got Sheetrocked. Everything. It was five-eighths Sheetrock. The fireproof, everything. So everything five-eighths Sheetrocked all the way around, primed, paint[ed] it two coats of paint. New wood floors went down.

(Kimpson Dep. 13:18–22.) Although the old ceiling beams remained, the kitchens and bathrooms underwent complete renovation as well. (Id. at 14:20–15:6, 15:19–16:6.)

On February 5, 2015, Alex Moussavi, P.E., an engineer hired by defendant, performed an assessment of the ground floor apartment, which had been inhabited by plaintiffs. (Def.'s Opp. Ex. 3, Moussavi Affidavit ¶ 6, ECF No. 28–3 (“Moussavi Aff.”).) He approved the quality of the renovation, concluding:

The ground level apartment was totally renovated in 2011. The walls and ceilings were entirely encapsulated with new drywall. The floor covering was hardwood floor. The method of encapsulation, the workmanship, the quality control, the safety and the overall renovation of the ground level apartment was found to be acceptable and met the engineering and construction industry design standards.

(Moussavi Aff. ¶ 8B.)

Arthur A. Morales, a certified lead-based paint tester hired by Kimpson, performed an assessment of the apartment on February 3, 2015. (Def.'s Opp. Ex. 2, Morales Affidavit ¶ 20, ECF No. 28–2 (“Morales Aff.”).) The assessment was made using an X–Ray fluorescence device on the painted surfaces in the apartment. (Morales Aff. Ex. B at 3 (report of results from Feb. 3, 2015 inspection).) Out of the 197 readings that he took during his assessment, 135 tested positive for unacceptable amounts of lead. (Id. at 9–14.) The surfaces that tested positive were “walls; ceilings; doors, door casings, and doorjambs; window casings; and closet and cabinet walls, ceilings, baseboard, shelves and brackets.” (Id. at 4.) There were fourteen readings involving walls and ceilings where the device “read through” the sheetrock to the underlying painted surface. (Id. at 9–14.) Morales's report was generally favorable to defendant:

The positive window casings, door casings, baseboards and closet and cabinet shelves, brackets and drawers are not undergoing any excessive friction or impact and the paint is in good condition.

The paint on the positive walls and ceilings is in good condition. As mentioned previously, the majority of the lead-based paint on the walls and ceiling is enclosed with drywall.

The paint on the doors and doorjambs potentially undergoes friction and impact during each use.

...

The positive readings that were obtained on several wall and ceiling drywall surfaces ... [were] the result of the XRF device “reading thru” [sic ] the drywall (sheetrock) material to the painted surface that is covered.

...

Any testing done with the commonly accepted X–Ray Fluorescence Device [which was used by DOHMH] will result in higher testing levels as the device reads thru [sic ] drywall. As a consequence, inaccurate positive lead-paint levels may be noted, even in arrears where the paint is in good condition and the drywall has encapsulated the paint containing lead.

(Id. at 5–6.) Morales opined: “Complete enclosure with drywall material is an acceptable abatement method. The lead-based paint at these...