Velez v. South Nine Realty Corp.

• Decision Date: 23 December 2008
• Docket Number: 2006-10111.,2007-03470.
• Parties: JESUS VELEZ et al., Respondents-Appellants, v. SOUTH NINE REALTY CORP. et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 889

871 N.Y.S.2d 614

2008 NY Slip Op 10157

JESUS VELEZ et al., Respondents-Appellants, v. SOUTH NINE REALTY CORP. et al., Appellants-Respondents.

2006-10111.

2007-03470.

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

December 23, 2008.

In an action to recover damages for personal injuries, etc., (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated September 28, 2006, as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Steven Weil and Icik Meizlik, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment on the issue of liability as against the defendant South Nine Realty Corp., and (2) the defendants appeal, as limited by their brief, from so much of an order of the same court dated March 5, 2007, as, upon reargument, adhered to so much of the original determination as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Steven Weil and Icik Meizlik, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as, upon reargument, adhered to so much of the original determination as denied their motion for summary judgment on the issue of liability as against the defendant South Nine Realty Corp. and granted that branch of the defendants' cross motion which was for leave to amend their answer to assert release and satisfaction as an affirmative defense with respect to the individual claims of the plaintiff Pablo Velez.

Ordered that the appeal and cross appeal from the order dated September 28, 2006 are dismissed, as that order was superseded by the order dated March 5, 2007, made upon reargument; and it is further,

Ordered that the order dated March 5, 2007 is modified, on the law, the facts, and in the exercise of discretion, (1) by deleting the provision thereof, upon reargument, adhering to so much of the original determination in the order dated September 28, 2006, as denied that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Steven Weil and Icik Meizlik, and substituting therefor a provision, upon reargument, vacating so much of the order dated September 28, 2006, as denied that branch of the defendants' cross motion and granting that branch of the defendants' cross motion, and (2) by deleting the provision thereof, upon reargument, granting that branch of the defendants' cross motion which was for leave to amend their answer to assert release and satisfaction as an affirmative defense with respect to the individual claims of the plaintiff Pablo Velez, and substituting therefor a provision, upon reargument, adhering to the original determination denying that branch of the defendants' cross motion; as so modified, the order dated March 5, 2007, is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendants.

The Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability against the defendant South Nine Realty Corp. (hereinafter South Nine). The infant plaintiffs allegedly sustained injuries from exposure to lead paint while residing in an apartment building owned by South Nine. To establish their prima facie entitlement to summary judgment on the issue of liability, the plaintiffs were required to establish, as a matter of law, the existence of a lead hazard at the subject premises, that South Nine had actual or constructive notice of the condition, that South Nine failed to exercise reasonable care in remedying the condition, and that the infant plaintiffs' injuries were causally related to the condition at the subject premises (see Chapman v Silber, 97 NY2d 9, 22 [2001]; Alonso v Coutinho Enters., LLC, 35 AD3d 641 [2006]; Shafqat v Blackman, 16 AD3d 574 [2005]; Zaman v Patwary, 295 AD2d 424, 424-425 [2002]). The evidence submitted in support of the plaintiffs' motion failed to demonstrate, as a matter of law, that the infant plaintiffs' injuries...