Walton v. ALBANY DEV. AGENCY

• Decision Date: 11 January 2001
• Citation: 718 N.Y.S.2d 456,279 A.D.2d 93
• Court: New York Supreme Court — Appellate Division
• Parties: JOHN WALTON, Individually and as Parent and Guardian of RALISHA WALTON, an Infant, et al., Appellants,<BR>v.<BR>ALBANY COMMUNITY DEVELOPMENT AGENCY, Defendant, and<BR>WEST HILL IMPROVEMENT CORPORATION et al., Respondents.

279 A.D.2d 93

718 N.Y.S.2d 456

JOHN WALTON, Individually and as Parent and Guardian of RALISHA WALTON, an Infant, et al., Appellants,

v. ALBANY COMMUNITY DEVELOPMENT AGENCY, Defendant, andWEST HILL IMPROVEMENT CORPORATION et al., Respondents.

ROSE, J.

January 11, 2001.

O'Connell & Aronowitz, Albany (Mo Athari of counsel), for appellants.

Thuillez, Ford, Gold & Johnson, Albany (Donald P. Ford, Jr., of counsel), for Peter J. Farrell, respondent.

D'Agostino, Krackeler, Baynes & Maguire, Menands (Arete Sprio of counsel), for County of Albany, respondent.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P. C., Albany (Andrew G. Ceresia of counsel), for West Hill Improvement Corporation, respondent.

Bouck, Holloway, Kiernan & Casey, Albany (Mark D. Sanza of counsel), for Anthony Smith, respondent.

Hodgson, Russ, Andrew, Woods & Goodyear, Albany (Theresa J. Puleo of counsel), for Savitrie Boodwha and another, respondents.

CREW III, J.P., SPAIN, MUGGLIN and LAHTINEN, JJ., concur.

OPINION OF THE COURT

ROSE, J.

This consolidated action was commenced on behalf of three children, Ralisha, Mercedes and Larissa, seeking damages for injuries sustained as a result of their ingestion of lead-based paint during their residence in apartments owned or maintained by defendants from 1991 to 1993. Supreme Court granted defendants' motions for summary judgment dismissing the action solely on the ground that plaintiffs failed to establish a causal connection between the children's injuries and exposure to lead. Plaintiffs now appeal. Asserting that lead poisoning itself is an actionable injury, plaintiffs argue that Supreme Court improperly dismissed the action because the expert medical affidavits submitted in support of defendants' motions failed to make a prima facie showing that, as a matter of law, there is no causal connection between the children's exposure to lead paint and their claimed injuries. We agree.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Also, "[t]he evidence produced by the movant must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference" (Horth v Mansur, 243 AD2d 1041, 1042). "Only after the movant has made this prima facie showing does the burden shift to the party opposing the motion to produce evidence showing the existence of material issues of fact which would require a trial [citations omitted]" (id., at 1042).

As to claims for a child's exposure to lead, the Court of Appeals has held that prima facie causation is established by evidence that the child's residence contained a hazardous level of lead-based paint and that the child was observed ingesting paint fragments, had elevated lead levels,^[1] was not out of the parent's custody for any substantial period of time and did not manifest the pertinent symptoms before moving into the residence (see, Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 648). Here, plaintiffs allege and defendants do not dispute that the children had elevated lead levels in their blood measured by tests administered in 1993 and 1994,^[2] that they received medical treatment for those elevated levels, that lead-based paint was present in their residences at the relevant times, that they were observed ingesting particles of such paint, that they resided continuously at those residences and that they became ill while living in those residences. Thus, the threshold issue on this appeal is whether the proof in support of defendants' motions was sufficient to shift the burden to plaintiffs to present more than this prima facie evidence of causation.

Defendants supported their motions with the affidavits of Phillip Riback, a physician specializing in pediatric neurology, and Robert McCaffrey, a neuropsychologist. Basing their opinions upon, inter alia, their examinations of each infant in 1999, a review of the depositions, and detailed histories from the custodians and biological mother, these experts opined that the children's existing conditions were primarily related to factors other than their exposure to lead.

However, after review of these opinions in the light most favorable to plaintiffs, we conclude that defendants did not meet their initial burden of demonstrating the absence of any issues of fact regarding the causal connections between the children's injuries and their ingestion of lead. First, we note that defendants' experts examined the children in 1999, several years after their exposure to lead, and offer no opinion as to whether the various conditions alleged in plaintiffs' bill of particulars may have been present prior to those examinations and may have been caused by exposure to lead. Thus, defendants' experts do not exclude the possibility of earlier injuries caused by lead. Second, defendants' experts address only the possible causal connections between the...