Sanders v. Patrick

• Decision Date: 27 April 2012
• Citation: 943 N.Y.S.2d 350,2012 N.Y. Slip Op. 03307,94 A.D.3d 1514
• Parties: Shamel SANDERS, Plaintiff–Respondent, v. Scott PATRICK, Kurt Roesner, Defendants–Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03307

94 A.D.3d 1514

943 N.Y.S.2d 350

Shamel SANDERS, Plaintiff–Respondent,

v.Scott PATRICK, Kurt Roesner, Defendants–Appellants, et al., Defendants.

Supreme Court, Appellate Division, Fourth Department, New York.

April 27, 2012.

Burgio, Kita & Curvin, Buffalo (Steven P. Curvin of Counsel), for Defendants–Appellants.

Lipsitz & Ponterio, LLC, Buffalo (John Ned Lipsitz of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he allegedly sustained as a result of his exposure to lead paint while residing in an apartment rented to his mother by Scott Patrick and Kurt Roesner (defendants). Supreme Court granted in part defendants' motion for summary judgment dismissing the complaint against them, and we agree with defendants that the court should have granted their motion in its entirety. Defendants met their initial burden with respect to the claim that they did not have actual or constructive notice of the lead-paint condition, and plaintiff failed to raise a triable issue of fact in opposition thereto ( see Joyner v. Durant, 277 A.D.2d 1014, 1014–1015, 716 N.Y.S.2d 221). With respect to actual notice, even assuming, arguendo, that defendants were aware of chipping or peeling paint in the apartment, we conclude that such knowledge does not constitute actual notice of a dangerous lead paint condition ( see id. at 1015, 716 N.Y.S.2d 221; Durand v. Roth Bros. Partnership Co., 265 A.D.2d 448, 449, 696 N.Y.S.2d 234; Lanthier v. Feroleto, 237 A.D.2d 877, 877–878, 654 N.Y.S.2d 531).

With respect to constructive notice, defendants established that they did not retain the requisite right of entry to the apartment to sustain a claim for constructive notice ( see Chapman v. Silber, 97 N.Y.2d 9, 15, 734 N.Y.S.2d 541, 760 N.E.2d 329; cf. Charette v. Santspree, 68 A.D.3d 1583, 1584, 893 N.Y.S.2d 315). Patrick testified at his deposition that defendants did not have a rental agreement or lease with plaintiff's mother, and plaintiff's mother likewise testified at her deposition that she signed only a one-page “landlord/tenant agreement” with the Department of Social Services. Defendants submitted affidavits in which they averred that, although they retained a key to the apartment, their arrangement with plaintiff's mother was such that they were unable to enter the apartment “unless [they] gave notice and received permission from” plaintiff's mother. Plaintiff's mother and her sister, who also occupied the apartment, both testified at their depositions that defendants could enter the apartment only with their permission. Further, in opposition to the motion, plaintiff's mother submitted an affidavit in which she averred that “[d]efendants maintained an extra key to [the] apartment and were allowed to enter with [her] permission.” We thus conclude that defendants established as a matter of law that they did not retain a right of entry to the apartment, and plaintiff failed to raise a triable issue of fact in opposition ( see Netral v. Lippold, 304 A.D.2d 491, 491–492, 759 N.Y.S.2d 52; cf. Harden v. Tynatishon, 49 A.D.3d 604, 605, 856 N.Y.S.2d 134; Jackson v. Brown, 26 A.D.3d 804, 805, 809 N.Y.S.2d 727).

We likewise agree with defendants that the court should have granted those parts of their motion insofar as plaintiff's claims are premised upon defendants' failure to inspect the apartment for lead paint. The Court of Appeals in Chapman, 97 N.Y.2d at 21, 734 N.Y.S.2d 541, 760 N.E.2d 329 expressly “decline[d] to impose a new duty on landlords...