Shafi v. Motta

• Decision Date: 04 May 2010
• Citation: 73 A.D.3d 729,900 N.Y.S.2d 410
• Parties: Nomaan SHAFI, etc., et al., respondents, v. Joseph MOTTA, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 410
73 A.D.3d 729

Nomaan SHAFI, etc., et al., respondents,
v.
Joseph MOTTA, etc., et al., appellants.

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

May 4, 2010.

900 N.Y.S.2d 411

Kardisch, Link & Associates, P.C., Mineola, N.Y. (Beth L. Rogoff of counsel), for appellants.

Mark J. Rayo, P.C., Brooklyn, N.Y. (Louis A. Badolato of counsel), for respondents.

A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

73 A.D.3d 729

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated March 24, 2009, as denied their motion for summary judgment dismissing the complaint insofar as asserted on behalf of the infant plaintiff Nomaan Shafi and as asserts derivative claims arising from injuries to the infant plaintiff Nomaan Shafi.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The City of New York requires that the owner of a multiple dwelling remove or cover paint containing specified hazardous levels of lead in any apartment in which a child six years of age or younger resides ( see Administrative Code of City of N.Y. former § 27-2013[h], now §§ 27-2056.3, 27-2056.18 [hereinafter Local Law 1]; Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 641-642, 649 N.Y.S.2d 115, 672 N.E.2d 135; O'Neal v. New York City Hous. Auth., 4 A.D.3d 348, 771 N.Y.S.2d 548). Violation of Local Law 1, however, does not result in absolute liability for injuries caused by exposure to lead ( see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d at 643, 649 N.Y.S.2d 115, 672 N.E.2d 135). Rather, a plaintiff must establish that the landlord had actual or constructive notice of the condition for a period of time such that, in the

73 A.D.3d 730

exercise of reasonable care, the condition should have been remedied ( see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d at 646, 649 N.Y.S.2d 115, 672 N.E.2d 135). Nevertheless, Local Law 1 imputes to a landlord constructive notice of a hazardous condition in certain circumstances where the landlord has actual notice that a child under the age of six resides in the unit ( see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d at 647, 649 N.Y.S.2d 115, 672 N.E.2d 135; Chadwick v. Sabin, 304 A.D.2d 603, 603-604, 757 N.Y.S.2d 470).

On their motion for summary judgment, the defendants had the burden of establishing, by proof in admissible form, their prima facie...