Lanthier by Lanthier v. Feroleto
| Decision Date | 14 March 1997 |
| Citation | 654 N.Y.S.2d 531,237 A.D.2d 877 |
| Parties | Mitchell LANTHIER, an Infant, by His Mother and Natural Guardian, Deborah LANTHIER, and Deborah Lanthier, Individually, Respondent, v. Frank FEROLETO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Saperston and Day, P.C. by Kathleen Burr, Buffalo, for Appellant.
Offerman, Cassano, Pigott and Greco by Mathew Duggan, Buffalo, for Respondent.
Before DENMAN, P.J., and GREEN, PINE, BALIO and BOEHM, JJ.
On August 10, 1993, plaintiff's infant son was diagnosed with acute lead poisoning. From February 1993 to March 1994, plaintiff and her son lived in an apartment owned by defendant, who purchased the premises in 1977 and lived there with his family until plaintiff moved in. Plaintiff commenced this action in April 1994 alleging, inter alia, that the inhalation of lead paint dust in defendant's apartment caused her son's illness. The complaint alleged causes of action for negligence and breach of warranty of habitability on behalf of the child, and a derivative claim for loss of companionship. Upon defendant's motion for summary judgment dismissing the complaint, Supreme Court dismissed the warranty of habitability cause of action but found issues of fact precluding dismissal of the negligence cause of action, i.e., whether the paint in the apartment was chipping and peeling when plaintiff moved in and whether plaintiff informed defendant of that condition.
We agree with defendant that the court should also have dismissed the negligence cause of action. "In order for a landlord to be held liable for a defective condition upon the premises, he must have actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, he should have corrected it" (Appleby v. Webb, 186 A.D.2d 1078, 588 N.Y.S.2d 228, citing Putnam v. Stout, 38 N.Y.2d 607, 612, 381 N.Y.S.2d 848, 345 N.E.2d 319). "There must be some proof that the potential [hazard] reasonably could have been neutralized and that its existence was or should have been discovered by the [landowner]" (Preston v. State of New York, 59 N.Y.2d 997, 999, 466 N.Y.S.2d 952, 453 N.E.2d 1241). Here, even assuming, arguendo, that defendant knew of chipping and peeling paint in the apartment, that knowledge does not constitute actual or constructive notice of a hazardous lead paint condition (see, Hayes v. Hambruch, 841 F.Supp. 706, 711, affd., 4th Cir., 64 F.3d 657; Garcia v....
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