Valencia ex rel. Franco v. Lee, No. CIV.A. 97-3205.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtTrager
Citation123 F.Supp.2d 666
PartiesChristian VALENCIA, an Infant by his Mother and Natural Guardian, Teresa FRANCO, Plaintiffs, v. Sung M. LEE and Shiu Chun Lee and The City of New York, Defendants.
Decision Date13 December 2000
Docket NumberNo. CIV.A. 97-3205.
123 F.Supp.2d 666
Christian VALENCIA, an Infant by his Mother and Natural Guardian, Teresa FRANCO, Plaintiffs,
v.
Sung M. LEE and Shiu Chun Lee and The City of New York, Defendants.
No. CIV.A. 97-3205.
United States District Court, E.D. New York.
December 13, 2000.

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COPYRIGHT MATERIAL OMITTED

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Frank J. Arrieta, Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for Plaintiffs.

Marti Hirst, Corporation Counsel, New York, NY, for Defendant.

MEMORANDUM AND ORDER

TRAGER, District Judge.


Infant plaintiff Christian Valencia, by his mother and natural guardian, Teresa Franco, brings this action against Sung M.

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Lee and Shiu Chun Lee (the "Lees"), owners of the apartment in which they lived, and the City of New York (the "City") seeking compensatory damages for developmental injuries Christian sustained from exposure to lead paint. At a six day bench trial, causation of plaintiff's disabilities was fiercely contested and their severity was somewhat disputed. Otherwise, the factual background of the case was largely undisputed.

Background
(1)

Teresa Franco was born in Guayaquil, Ecuador, and moved to the United States in 1988. On March 11, 1992, she and Julio Valencia, who is now her husband, had a child, Christian Valencia. For three and one-half years, from Christian's birth through October of 1995, he and his mother lived in an apartment in a building located at 441-46th Street in Brooklyn, New York. During the family's entire tenancy in this building it was owned by defendants Sung M. Lee and Shiu Chun Lee (the "Lees").

While pregnant with Christian, Ms. Franco received her prenatal care at Lutheran Medical Center in Brooklyn, New York, and after his birth continued to bring Christian to a clinic at that facility, Sunset Park Family Health Center, for his pediatric care. Pl.Ex. 4. As required by law, on or about his first birthday, Christian's blood was tested as part of his pediatric care, and his blood lead level measured 14 micrograms per deciliter ("μg/dl"). Pl.Ex. 19. On July 28, 1993, at the age of 16 months, his blood lead level was 30 μg/dl. Pl.Ex. 4.

While the March reading was elevated, it was not high enough to trigger intervention by the City. The July reading required a response on the City's part. Specifically, under the New York City Health Code, a blood lead level above 10 μg/dl in a child is considered lead poisoning. See New York, NY, Health Code, Title II, § 11.03. When a physician detects a blood lead level above 10 μg/dl in an individual, he or she is required to report that finding to the City's Department of Health ("DOH"). Id. Where a level over 20 μg/dl is reported to DOH, DOH is mandated to respond by inspecting the individual's apartment for lead paint. (Tr. 243-46); see also New York, NY, Health Code, Title IV, § 173.13(d)(2). Lutheran Medical Center reported Christian's blood lead level, and upon receiving this information, DOH sent two Public Health Sanitarians ("PHS") to the family's apartment on August 25, 1993 to inspect for lead paint and to advise Ms. Franco about the hazards of lead paint. (Tr. 276).

The PHSs took 78 readings of the paint and one of the tap water. The tap water sample was negative,1 but 56 of the 78 paint readings were positive for lead paint. Pl.Ex. 10. As a result of these positive paint readings, the PHSs gave Ms. Franco a single page document, in English on one side and Spanish on the other, containing information about the steps that the City would take in attempting to remedy the lead paint hazard in her apartment. The procedure, as outlined in this informational sheet, was as follows:

1. Your landlord will be informed by letter that he/she is required by law to fix your apartment within [10] working days of notification.2

2. If the landlord does not fix your home, the New York City Emergency Repair Program (ERP) will contract to do the work and bill the landlord for the cost of repairs.

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3. You must allow the landlord or the ERP to come into your home in order to do the repairs.

4. The landlord cannot dispossess you or force you to move because of these violations.

5. I will continue to check your home until the repairs are completed properly as required by the New York City Department of Health.

6. A public Health Advisor from the Bureau of Lead Poisoning will also be visiting your home to answer your questions about lead poisoning and the medical care you may expect for your child.

Pl.Ex. 10, p. 3. In addition, the PHSs put red "LEAD PAINT" stamps on surfaces found to contain lead paint.

DOH sent an Order to Abate Nuisance, dated September 16, 1993, to the Lees directing them to repair the 56 surfaces which tested positive for lead-based paint. Pl.Ex. 10, p. 15. The Order to Abate Nuisance warned the Lees that the lead paint covered surfaces in the apartment "constitute a nuisance in that they present a danger to the life or health of the child/children of the above-referenced premises." Id. In September or October of 1993, the Lees used plywood to cover some surfaces, but it appears undisputed that this was not a substantial abatement of the hazard. (Tr. 60-61, 112). The plywood only covered the walls in the living room and hall, and none of the door frames, window frames or any surface in the other rooms in the apartment. (Tr. 135).

As promised, over the next two months DOH continued to visit the apartment, but no significant repair work was completed. DOH sent one or more PHSs to inspect the apartment on September 27, 1993, October 19, 1993, and November 10, 1993. Although on the previous visits the PHSs had determined that work on the apartment was in progress, on the November 10th visit, the PHS decided that the Lees were no longer making an effort to repair the hazard. (Tr. 264). Consequently, the inspector determined that, consistent with the information provided to Ms. Franco upon the first visit, the apartment should be abated by the Emergency Repair Program ("ERP"). (Tr. 264). Upon the PHS's recommendation, DOH sent a letter to ERP, dated November 22, 1993, ordering that agency to abate the hazard. Pl.Ex. 10, p. 24.

Ms. Franco was never notified of this decision, (Tr. 265); indeed, at no point was there any communication between the family and ERP. ERP did not come in to repair the premises as scheduled, and at trial, the City offered no evidence as to why no repairs were completed beyond noting that there was a "lapse." (Tr. 268).3

On February 16, 1995, a full fifteen months since the last PHS visit, a PHS returned and found that the lead hazard in the apartment remained unabated. One or more PHSs again visited on March 8, 1995, March 30, 1995, May 11, 1995, July 17, 1995, September 28, 1995, and on October 2, 1995. Throughout this period, no repairs were made to abate the lead paint. In fact, despite DOH's significant intervention in the matter, its September 16, 1993 Order to Abate was not fully complied with until June of 1996, some eight months after Christian and his family moved out. Pl.Ex. 10 (Report of Inspection, dated June 28, 1996).

In addition to the visits by PHSs relating to monitoring the abatement, the Department of Health on four occasions stretched over a two year period sent Public Health Advisors ("PHA") to counsel Ms. Franco. A PHA visited on August 26,

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1993, May 2, 1994, November 22, 1994, and August 30, 1995. Pl.Ex. 10. On each of these visits, the respective PHAs advised Ms. Franco on several topics, including what to feed Christian, how and when to wash Christian, Christian's continued blood testing, and how to clean the apartment and Christian's toys. (Tr. 56-58, 105); see also Pl.Ex. 10 (PHA notes, dated 8/26/93, 5/2/94, 11/22/94, and 8/30/95). It is undisputed that Ms. Franco consistently followed this advice. (Tr. 58).

Christian's pediatrician at Lutheran Medical Center was also involved with Christian's care. She provided Ms. Franco with vitamins (primarily iron), and advised Ms. Franco to give Christian milk. (Tr. 94-95). In addition, on August 23, 1993, Christian's first visit to the pediatrician after a dangerously high level of lead was detected in his blood, the doctor advised Ms. Franco that one source of the lead in Christian's blood could be paint from the apartment. (Tr. 99). Beyond this advice, however, the pediatrician did not instruct Ms. Franco on how and when to clean Christian or the apartment, or what diet — beyond drinking milk — Christian should follow. (Tr. 98-101).

While acknowledging that she knew the lead paint to be a continued hazard, (Tr. 88, 109), Ms. Franco believed that as long as she followed the advice of the PHAs and PHSs, Christian's health would not be in jeopardy. (Tr. 71-72). At no time did any PHS or PHA advise Ms. Franco to remove Christian from the apartment despite the fact that DOH was aware that he continued to be exposed to a lead hazard for over two years. (Tr. 59-63). Nor did anyone advise Ms. Franco that the cleaning and diet instructions she was receiving would not fully protect Christian from the lead paint hazard. (Tr. 59-63). In fact, the first indication that anyone advised Ms. Franco that Christian risked continued lead poisoning even if she followed their advice was August 30, 1995-two years after the initial contact between Ms. Franco and DOH. (Tr. 281).4 Further, no PHS or PHA explained to Ms. Franco that blood lead levels under 30 μg/dl could be dangerous to the child's health. (Tr. 79). Ms. Franco testified that if the above advice had been given, she would have moved from the apartment. (Tr. 72). In light of the fact that it is undisputed that Ms. Franco was a diligent and conscientious mother who followed the advice she was given, there is no reason not to credit this testimony.

In November of 1995, when Christian was approximately three and one-half years old, the family moved to a new residence in Ridgewood, Queens. In the relevant time frame — from when Christian was first found...

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2 practice notes
  • Valencia ex rel. Franco v. Lee, Docket No. 01-7327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 21, 2003
    ...F.Supp.2d 122 (1999) ("Valencia I") (granting in part and denying in part the City's motion for summary judgment), and Valencia v. Lee, 123 F.Supp.2d 666 (2000) ("Valencia II") (finding in favor of plaintiffs after trial), were as Christian was born in 1992. Until late 1995, he and Franco l......
  • Amorgianos v. National Railroad Passenger Corp., No. CIV A. CV-96-2745 (DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 29, 2001
    ...injury the ordinance was designed to protect against. See Martin v. Herzog, 228 N.Y. at 170, 126 N.E. at 816; see also Valencia v. Lee, 123 F.Supp.2d 666, 685-86 (E.D.N.Y.2000) (applying New York law) (shifting burden on causation where infant plaintiff, who had blood lead levels above limi......
2 cases
  • Valencia ex rel. Franco v. Lee, Docket No. 01-7327.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 21, 2003
    ...122 (1999) ("Valencia I") (granting in part and denying in part the City's motion for summary judgment), and Valencia v. Lee, 123 F.Supp.2d 666 (2000) ("Valencia II") (finding in favor of plaintiffs after trial), were as Christian was born in 1992. Until late 1995, he an......
  • Amorgianos v. National Railroad Passenger Corp., No. CIV A. CV-96-2745 (DGT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 29, 2001
    ...injury the ordinance was designed to protect against. See Martin v. Herzog, 228 N.Y. at 170, 126 N.E. at 816; see also Valencia v. Lee, 123 F.Supp.2d 666, 685-86 (E.D.N.Y.2000) (applying New York law) (shifting burden on causation where infant plaintiff, who had blood lead levels above limi......

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