Juarez by Juarez v. Wavecrest Management Team Ltd.
| Decision Date | 02 July 1996 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | , 672 N.E.2d 135 Peggy JUAREZ, an Infant, by Her Mother and Natural Guardian, Noemi JUAREZ, et al., Respondents, v. WAVECREST MANAGEMENT TEAM LTD., Defendants, and Mayaghor Realty, Inc., Appellant. |
This case, brought on behalf of a child suffering from lead poisoning, presents our first opportunity to consider the liability of a landlord who has allegedly failed to comply with the lead abatement provision of the Administrative Code of the City of New York. That provision, Local Law 1, requires the owner of a multiple dwelling to "remove or cover" paint containing specified hazardous levels of lead in any apartment in which a child six years of age or younger resides (Administrative Code of City of NY § 27-2013[h] ). We are asked: does Local Law 1 obligate building owners to ascertain whether such a child resides in any of the dwelling units and then to inspect those units for dangerous lead conditions?
We hold that to establish liability plaintiffs must demonstrate that the building owner had actual or constructive notice that a child six years of age or under was living in one of its residential units. Under the statutory scheme, a landlord who has such notice is chargeable with notice of any hazardous lead condition in that unit.
Here, defendant landlord has failed to contest plaintiffs' allegations that a lead hazard existed in the apartment and that defendant made no attempt to remedy it. Defendant has also failed to rebut plaintiffs' prima facie showing of causation. Thus, no triable issues exist regarding defendant's constructive notice of the hazard, the reasonableness of abatement efforts or causation--these issues were all correctly resolved against the landlord. There remains for resolution only the disputed question whether defendant had notice of the residency of a child under seven.
Defendant Mayaghor Realty obtained title to the building at 2295 Morris Avenue in the Bronx in September 1984. The tenant of record in apartment 4C at that time was Julio Ortiz. The lease between Mayaghor and Ortiz prohibited the tenant from subletting all or part of the apartment. Nevertheless, in October 1987, plaintiff Noemi Juarez and her two infant daughters sublet part of apartment 4C from Ortiz. Juarez paid Ortiz $150 per month to rent a bedroom and for use of the kitchen and bathroom. This arrangement continued until October 1991.
According to Juarez, peeling paint from the outset pervaded the apartment, with paint chips on the window, pipes, radiator and falling from the ceiling. On several occasions, she observed both daughters with paint dust on their hands and found them eating paint chips. At no time during their residency did anyone paint the apartment. Although Juarez complained to Ortiz about this problem, she never spoke to anyone connected with the owner.
After approximately a year, two-year-old plaintiff Peggy Juarez began complaining of stomach pain and exhibiting behavioral problems. In 1988, she was diagnosed as having lead poisoning. She received treatment at Montefiore Hospital and subsequently underwent outpatient chelation therapy.
On September 16, 1988, a New York City Department of Health sanitarian took 39 samples of paint from apartment 4C, and 38 of those samples tested positive for lead paint. A "Lead Poisoning Investigation Checklist" completed by the sanitarian that day indicates that Peggy had been seen eating paint chips, that there were defective surfaces and peeling paint in every area of the apartment, and that no other environmental conditions indicating a different source of lead were present.
Five days later, the Department of Health issued an Order to Abate Nuisance to the managing agent of the building, Wavecrest Management Team Ltd. The Order explained that a child with a specified high blood level of lead resided in apartment 4C, which was identified as a nuisance. The Order further stated that an inspection of the apartment had revealed paint containing levels of lead in violation of New York City Health Code § 173.13(c) and (d) and detailed numerous lead contamination violations in seven areas of the apartment.
A principal of Mayaghor acknowledged during his deposition testimony in February 1992 that the corporation learned from Wavecrest that the City had discovered a lead poisoning problem in apartment 4C. Nevertheless, a subsequent Health Department inspection report showed that, as of October 19, 1988, the problem had not been corrected. Finally, on or about November 2, 1988, a construction company hired by the City commenced repairs but failed to eliminate the problem. A Department of Health sanitarian conducted another inspection of the apartment in December 1988 and issued a notice of remaining violations in January 1989. A Department of Health document established that the lead violations continued as late as February 1989.
Consequently, when Peggy returned from the hospital, her toys remained covered with dust and she continued to put her dust-covered hands into her mouth. Blood tests conducted in December 1988 revealed that, notwithstanding the treatment and therapy, her lead level had increased, and it remained high in early 1989.
Plaintiffs subsequently brought this action against defendants Mayaghor, Wavecrest and the successor owner of the building (2295 Morris Associates), alleging that Peggy suffered injury as a result of the defendants' negligence. In their bill of particulars, plaintiffs claimed that defendants violated various provisions of the Administrative Code, the City Health Code and other State and Federal health regulations.
Plaintiffs moved for summary judgment as to liability, arguing that landlords have an affirmative duty to inspect multiple dwelling units for dangerous lead conditions. Although the trial court rejected this argument, it granted plaintiffs' motion nonetheless, concluding that defendants had acquired notice of the lead condition and that a child was living in the apartment upon receiving the Department of Health Order. The court further found that there was no evidence that defendants took any steps to alleviate the dangerous condition.
On appeal, the Appellate Division concluded that summary judgment should have been denied against Wavecrest, since plaintiffs failed to submit evidence that Wavecrest had complete and exclusive control of the building. The court also denied summary judgment against the successor owner, finding an issue of fact as to the infant plaintiff's continued exposure to a lead condition after 2295 Morris Associates assumed ownership of the premises. As to defendant Mayaghor, the Appellate Division affirmed the grant of summary judgment, holding that Local Law 1 imposes an affirmative duty of inspection on landowners irrespective of notice, and granted Mayaghor leave to appeal.
We conclude that liability does not attach under Local Law 1 unless a landlord has actual or constructive notice that a child under seven resides in the apartment, but that landlords with such knowledge may be charged with notice of dangerous lead conditions within their buildings. Because a material issue of fact exists here as to whether defendant had notice prior to receipt of the Order to Abate Nuisance that a child under seven was living in apartment 4C, we remit for further proceedings on that limited issue.
The serious health hazard posed to children by exposure to lead-based paint is by now well established. Children under the age of six, whose nervous systems are still developing, are particularly vulnerable to the damage caused by lead poisoning. High blood lead levels can produce brain damage, coma or death, and even relatively low levels can lead to significant nervous system damage (see, 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] ).
While the use of lead-based paint on interior building surfaces has been prohibited since January 1960 (see, NY City Health Code § 173.13), such...
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