Santiago ex rel. Muniz v. Hernandez, 97-CV-3201 FB.

Citation53 F.Supp.2d 264
Decision Date29 April 1999
Docket NumberNo. 97-CV-3201 FB.,97-CV-3201 FB.
PartiesStephanie SANTIAGO, an infant By her mother and natural guardian, Felicita MUNIZ, and Felicita Muniz, individually, Plaintiffs, v. Johnny HERNANDEZ and the City of New York, Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)

John M. Daly, Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for the Plaintiffs.

Michael D. Hess, Corporation Counsel by Thomas G. Merrill, Assistant Corporation Counsel, The City of New York Law Department, New York City, for the Defendant City of New York.

Marc H. Pillinger, Smith, Mazure, Director & Wilkens, P.C., New York City, for the Defendant Johnny Hernandez.


BLOCK, District Judge.

Felicita Muniz ("Muniz") brings suit on behalf of herself and her minor child, Stephanie Santiago ("Santiago") (together, "plaintiffs") against the City of New York ("City") and Johnny Hernandez ("Hernandez"). Plaintiffs seek damages against the City for lead-based paint poisoning suffered by Santiago, based on alleged causes of action under the Lead-based Paint Poisoning and Prevention Act ("LPPPA"), 42 U.S.C. § 4822 et seq.; the Housing and Community Development Act ("HCDA"), 42 U.S.C. § 5301 et seq.: the LPPPA and HCDA regulations; 42 U.S.C. § 1983; and the New York City Administrative Code. Plaintiffs also seek damages against the City and Hernandez under an assortment of common law torts. After having removed the case from New York State Supreme Court, Kings County, see 28 U.S.C. § 1441, the City now moves to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), or alternatively, for summary judgment under Fed.R.Civ.P. 56. In their submissions in opposition to the City's motion, plaintiffs raise an additional claim under the Residential Lead-based Paint Hazard Reduction Act ("RLPHRA").1

As explained below, neither the LPPPA, the HCDA, the RLPHRA, nor their attendant regulations, provide plaintiffs with an enforceable right under 42 U.S.C. § 1983 or a private right of action against the City for its failure to cure the lead-based paint hazards in plaintiffs' home simply because the City was a recipient of federal funds designed to allow the City to address such hazards where found in pre-1978 privately owned residences. Therefore, the City cannot be liable to plaintiffs in a § 1983 action or a private right of action under these statutes or regulations for exposure to lead-based paint allegedly caused by the City's failure to properly attend to the lead-based paint hazards which it found to have existed in plaintiffs' apartment.


In order to draw all inferences in favor of plaintiffs, Vital v. Interfaith Medical Center, 168 F.3d 615, 620 (2d Cir.1999), the following facts, most of which are undisputed, are drawn from the plaintiffs' submissions:2

Santiago was born in 1990, and lived with her mother, Muniz, at 362 48th Street, Apartment # 3, Brooklyn, New York from August 8, 1990 until April 19, 1996. They rented their apartment (the "Apartment") in Hernandez's apartment building, which was built prior to 1978. During March 1995, Santiago tested positive for an elevated level of lead in her blood, and the City was notified of the likelihood of the presence of lead-based paint hazards in the Apartment. Shortly thereafter, the City Department of Health ("DOH") inspected the Apartment and made the following findings: (1) Santiago, while living in the Apartment, had a blood lead level of 20 ug/dl or higher; (2) the paint at the Apartment contained sufficiently high levels of lead to violate the New York Health Code § 173.13(c) and (d); and (3) such conditions constituted a nuisance because they presented a danger to Santiago's life or health.

On April 13, 1995, DOH issued an "Order to Abate Nuisance" requiring Hernandez to remove all lead poisoning hazards from the Apartment. At least seven times between April and August 1995, City inspectors examined the Apartment for the presence of lead-based paint and provided lead hazard counseling to Muniz. Hernandez performed some repairs in the Apartment, but plaintiffs allege that they were insufficient to abate the lead-based paint hazards. Following a June 16, 1995 inspection, DOH referred the matter to the City's Emergency Repair Program of the Department of Housing Preservation and Development. Plaintiffs allege that the City never cured — that is, reduced, abated, and removed — the lead-based paint hazards in the Apartment.

Plaintiffs identify in their factual submissions three instances where the City allegedly spent Community Development Block Grant ("CDBG") funds provided by the federal Department of Housing and Urban Development ("HUD") that allegedly related to the Apartment: First, that the City inspectors' salaries were paid by the City with CDBG funds. See Exhibit 10, attached to Farrell Dec. Second, that the City "applies for, receives, administers and uses grants of federal funds from HUD pursuant to the CDBG program for authorized CDBG purposes, including inter alia, ... prevention of lead-based paint poisoning." Daly Dec., ¶ 7. Third, that in 1995 the City received more than $207 million in CDBG funds for housing programs, Daly Dec., ¶ 89, causing plaintiffs to reason that "[i]f the City is spending enough of that two-hundred million dollars on administrative costs in running the lead-reduction programs, then some percentage of this money must be considered to be spent `on' [the Apartment]." Pl. Mem., at 23. In addition, plaintiffs generally claim "that there are additional ways the City could spend CDBG money on [the Apartment]." Pl. Mem., at 23.

A. Summary Judgment

Fed.R.Civ.P. 12(b) provides, inter alia: "If, on a motion asserting the defense ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). In this action, the Court relies on facts set forth in the plaintiffs' submissions in opposition to summary judgment, including the stipulation entered into between the City and plaintiffs, which are outside the pleadings. Accordingly, the Court will treat the motion as one for summary judgment.

Plaintiffs have had adequate notice and a reasonable opportunity to oppose the summary judgment aspect of the City's motion. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998) (no prejudice to plaintiff when court converted motion to dismiss to motion for summary judgment when defendant had moved for summary judgment in the alternative, and plaintiff had adequate time to respond); National Ass'n of Pharmaceutical Mfrs., Inc. v. Ayerst Lab., Div. of Am. Home Prods. Corp., 850 F.2d 904, 911 (2d Cir.1988) (same). Furthermore, plaintiffs have fully responded to the City's request for summary judgment. See Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir.1995) (district court's conversion of motion to dismiss to motion for summary judgment was proper when moving party asked for such relief in the alternative and opposing party presented evidence outside of the pleadings).

B. Conceptual Overview: Enforceable Rights Under § 1983 and Private Rights of Action

"A plaintiff alleging a violation of a federal statute [or right] will be permitted to sue under § 1983 unless (1) `the [statutory right does] not create enforceable rights, privileges, or immunities within the meaning of § 1983,' or (2) `Congress has foreclosed such enforcement of the [statutory right] in the enactment itself.'" Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). Under Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), three factors must be present in order for a court to determine that a statutory provision creates a privately enforceable right under § 1983:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.

Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (citations omitted).

Under Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), when determining whether a statute gives rise to a private right of action, the following four factors are to be considered:

First, is the plaintiff one of the class for whose especial benefit the statute was enacted, — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Cort, 422 U.S. at 78, 95 S.Ct. 2080 (citations and quotations omitted). In Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), the Supreme Court stated that the "central inquiry" of the Cort test is "whether Congress intended to create, either expressly or by implication, a private cause of action." See Schuloff v. Queens College Foundation, Inc., 994 F.Supp. 425, 427 (E.D.N.Y.1998),...

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