New York City Coalition To End Lead Poisoning v. Koch

• Decision Date: 20 January 1987
• Citation: 524 N.Y.S.2d 314,138 Misc.2d 188
• Parties: , 20 Soc.Sec.Rep.Ser. 709 NEW YORK CITY COALITION TO END LEAD POISONING, Public Interest Health Consortium of New York City, Religious Committee on the New York City Health Crisis, Health Pac, Caroline Prester, Eloise Johnson, Juan Quiles, Sr., and Carmen Aponte, and Roberto Hernandez, Sr., and Lydia Santana; and Paula Prester, a minor, by her next friend and mother Caroline Prester, Renaldo Coke and Ellann Coke, minors, by their next friend and mother Eloise Johnson, Juan Quiles, Jr., a minor, by his next friends and parents, Juan Quiles, Sr., and Carmen Aponte, and Roberto Hernandez, Jr., a minor, by his next friends and parents Roberto Hernandez, Sr., and Lydia Santana, on behalf of themselves and all children similarly situated, Plaintiffs, v. Edward KOCH, individually and as Mayor of New York City; Anthony Gliedman, individually and as Commissioner of the New York City Department of Housing Preservation and Development (HPD); David Sencer, individually and as commissioner of the New York City Department of Health; New York City; Juan Molina, as owner and landlord of 1785 Monroe Avenue, Bronx, New York; Vickram Gandi and Ashok Doshi, as owners and landlords of 1420 Grand Concourse, Bronx, New York; Cesar Perales, individually and as Commissioner of the New York State Department of Social Services; and George Gross, individually and as Commissioner of the New York City Department of Social Services, Defendants.
• Court: New York Supreme Court

Page 314

524 N.Y.S.2d 314

138 Misc.2d 188, 20 Soc.Sec.Rep.Ser. 709

NEW YORK CITY COALITION TO END LEAD POISONING, Public Interest Health Consortium of New York City, Religious Committee on the New York City Health Crisis, Health Pac Caroline Prester, Eloise Johnson, Juan Quiles, Sr., and Carmen Aponte, and Roberto Hernandez, Sr., and Lydia Santana; and Paula Prester, a minor, by her next friend and mother Caroline Prester, Renaldo Coke and Ellann Coke minors, by their next friend and mother Eloise Johnson, Juan Quiles, Jr., a minor, by his next friends and parents, Juan Quiles, Sr., and Carmen Aponte, and Roberto Hernandez, Jr a minor, by his next friends and parents Roberto Hernandez Sr., and Lydia Santana, on behalf of themselves and all children similarly situated, Plaintiffs, v. Edward KOCH, individually and as Mayor of New York City; Anthony Gliedman, individually and as Commissioner of the New York City Department of Housing Preservation and Development (HPD); David Sencer, individually and as commissioner of the New York City Department of Health; New York City; Juan Molina, as owner and landlord of 1785 Monroe Avenue, Bronx, New York; Vickram Gandi and Ashok Doshi, as owners and landlords of 1420 Grand Concourse, Bronx, New York; Cesar Perales, individually and as Commissioner of the New York State Department of Social Services; and George Gross, individually and as Commissioner of the New York City Department of Social Services, Defendants.

Supreme Court, New York County, Special Term, Part I.

Jan. 20, 1987.

Bronx Legal Services, Lucy Billings, Bronx, for plaintiffs.

Frederick A.O. Schwarz, Jr., Corp. Counsel, Gabriel Taussig, Ellen Henak, Howard Weiss, Asst. Corp. Counsel, for New York City defendants.

Robert Abrams, Atty. Gen., Roy Moskowitz, Asst. Atty. Gen., New York City, for defendant Perales.

ELLIOTT WILK, Justice:

Plaintiffs have brought this action to recover damages and to compel defendants to enforce local and federal statutes designed to control and eliminate the incidence of lead poisoning in children caused by the ingestion of lead based paint. The municipal defendants move to dismiss the complaint for failure to state a cause of action.

Although denominated a class action, class certification has not yet been requested.

In their complaint, plaintiffs allege that lead paint poisoning is a devastating disease afflicting large numbers of New York City children each year. Its toxic effects include learning disabilities, brain damage, hyperactivity, loss of coordination, loss of appetite, abdominal pain, vomiting and convulsions. In extreme cases, lead paint poisoning is fatal.

Although lead based paint is no longer permitted to be used on the interior surfaces of buildings, its former use makes it a continuing problem. Young children contract the disease when they chew on surfaces containing lead based paint or when they ingest particles of lead based paint that have fallen from cracked and peeling Plaintiffs' affidavits, submitted in opposition to the motion to dismiss, demonstrate that, despite comprehensive federal and local laws and regulations, the problem of lead paint poisoning persists. Plaintiffs contend that the municipal defendants' failure to enforce these laws and regulations adequately, contributes to the existence of lead poisoning in children.

                surfaces. 1  Removal of lead based paint from the homes of young children dramatically decreases their chances of contracting the disease.  Effective medical screening of young children, which detects the disease at its earliest stages, along with prompt treatment, significantly decreases the possibility of irreversible damage
                

LOCAL LAWS & REGULATIONS

The Health Code of the City of New York § 173.13 ² and the Housing Maintenance Code of the City of New York § D26-12.01(h) ³, enacted in an effort to address the problem of lead paint poisoning, contain specific and unambiguous provisions detailing the steps to be taken to eliminate the hazard.

Neither the Health Code nor the Housing Maintenance Code prescribes the manner in which the municipal defendants are to carry out their enforcement functions.

The municipal defendants, citing Matter of Community Action Against Lead Poisoning v. Lyons, 43 A.D.2d 201, 350 N.Y.S.2d 812 (3d Dept.1974), aff'd. 36 N.Y.2d 686, 366 N.Y.S.2d 409, 325 N.E.2d 870 (1975), contend that the method of enforcement is a nonjusticiable function of the legislative or executive branch.

They further contend that the complaint contains no material allegation which suggests that they are not carrying out their responsibilities properly.

Plaintiffs contend that the municipal defendants may not hide behind the absence of specific legislative enforcement directions to shirk their responsibilities.

New York City Charter §§ 556 and 1802 require the municipal defendants to enforce the Health Code and the Housing Maintenance Code.

Section 556 of the Charter, which defines the "powers and duties of the department" of health (DOH) (emphasis added), including the enforcement of the Health Code, imposes mandatory duties on DOH and its commissioner.

Defendants contend that a mandatory duty is imposed only with respect to one of the twenty subsections of Chapter 556. This, however, is illogical and inconsistent with Health Code § 3.01(b), which states that DOH has a "duty to enforce" provisions of the Code "pursuant to section 556(c) of the Charter."

Section 1802(1) of the Charter defines the "and duties of the commissioner" of the Department of Housing Preservation and Development (HPD), including the enforcement of the Housing Maintenance Code (emphasis added). It is the HPD counterpart to Charter § 556 and, like § 556, imposes a mandatory duty to enforce.

At a minimum, Health Code § 173.13 imposes a mandatory duty on DOH (1) to order the removal of lead based paint when it receives notice that a child, living in a home with lead based paint, has an elevated blood lead level, and (2) to request HPD HPD is obligated to enforce § D26-12.01(h) of the Housing Maintenance Code. ⁴ (See Charter § 1802). When HPD receives a complaint of peeling paint in a building constructed before 1960 where a child under seven resides, it must act to ensure that the lead paint is removed. The regulations promulgated pursuant to § D26-12.01(h) ("Regulations Relating to the Use of Lead Based Paint in Multiple Dwellings." March 9, 1982) provide a comprehensive scheme for the removal of lead based paint. They include specific provisions for inspection and the supervision of the removal process. Additionally, § D26-12.01(h)(3) classifies lead paint violations as "class C immediately hazardous" subject to the enforcement mechanisms contained in Article 51 of the Housing Maintenance Code. When a landlord does not expeditiously repair a class C violation ⁵, Article 51 provides HPD with a variety of enforcement mechanisms ranging from monetary penalties to effecting the repairs itself.

to effect the removal if the landlord has not complied within five days of receipt of the order.

Although the method of enforcement may be discretionary, enforcement is not. Because the municipal defendants must enforce the Health and Housing Maintenance Codes, the causes of action pertaining to Health Code § 173.13 and Housing Maintenance Code § D26-12.01(h) are justiciable. See Klostermann v. Cuomo, 61 N.Y.2d 525, 475 N.Y.S.2d 247, 463 N.E.2d 588 (1984); Wilkins v. Perales, 128 Misc.2d 265, 487 N.Y.S.2d 961 (Sup.Ct. N.Y.Co.1985); Campbell Oil Co., Inc. v. Chu, 127 Misc.2d 281, 485 N.Y.S.2d 948 (Sup.Ct. Albany Co.1985).

In Klostermann v. Cuomo, the Court of Appeals drew a distinction between "those acts the exercise of which is discretionary" and "those acts which are mandatory but are executed through means that are discretionary." Klostermann 61 N.Y.2d at 539, 475 N.Y.S.2d 247, 463 N.E.2d 588. The Court found that "if a statutory directive is mandatory, not precatory, it is within the courts' competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature and, if it has not, to direct the agency forthwith to do so." Klostermann at 531, 475 N.Y.S.2d 247, 463 N.E.2d 588. Although a cause of action challenging the wisdom of a governmental program may not be justiciable, a request that a "program be effected in the manner in which it was legislated" clearly is justiciable. Klostermann at 537, 475 N.Y.S.2d 247, 463 N.E.2d 588. Plaintiffs here do not challenge the wisdom of local laws and regulations. Rather, they, like the plaintiffs in Klostermann, seek a determination and enforcement of their rights under laws and regulations which impose mandatory duties on the municipal defendants.

Where mandatory acts are involved, claims are not rendered non-justiciable merely because the acts "may be complex and rife with the exercise of discretion." Klostermann at 530, 475 N.Y.S.2d 247, 463 N.E.2d 588.

The municipal defendants' reliance on Community Action Against Lead Poisoning v. Lyons, 43 A.D.2d 201, 350 N.Y.S.2d 812 (3d Dept.1974), aff'd. 36 N.Y.2d 686, 366 N.Y.S.2d 409, 325 N.E.2d 870 (1975) is misplaced. The Appellate Division dismissed the Article 78 petition for mandamus in Community Action largely because the governmental acts petitioners sought to enforce involved "the exercise of a great deal of judgment and discretion ... and any attempt to frame a proper order embodying petitioners' requests ... would boggle the keenest of legal minds, irrespective of the attendant problems of its interpretation and enforcement." (citations omitted). Community Action at 203, 350 N.Y.S.2d 812.

The decision in Community Action ⁶ does not state whether the governmental acts petitioners sought to enforce were discretionary or mandatory. To the extent that they were mandatory, the Klostermann court, clarifying the doctrine of justiciability in New York, implicitly overruled Community Action. If...