Wynn v. TRIP REDEVELOPMENT

• Citation: 745 N.Y.S.2d 97,296 A.D.2d 176
• Parties: SHANE L. WYNN, an Infant, by ADRIANA E. WYNN, His Mother, et al., Appellants,<BR>v.<BR>T.R.I.P. REDEVELOPMENT ASSOCIATES et al., Respondents. (And a Third-Party Action.)
• Decision Date: 03 July 2002
• Court: New York Supreme Court Appellate Division

296 A.D.2d 176

745 N.Y.S.2d 97

SHANE L. WYNN, an Infant, by ADRIANA E. WYNN, His Mother, et al., Appellants,

v.T.R.I.P. REDEVELOPMENT ASSOCIATES et al., Respondents. (And a Third-Party Action.)

SPAIN, J.

July 3, 2002.

Seymour Fox P.C., Troy (Bonnie P. Chavin of counsel), for appellants.

O'Connor, O'Connor, Mayberger & First P.C., Albany (Colleen D. Galligan of counsel), for T.R.I.P. Redevelopment Associates and another, respondents.

CARDONA, P.J., CREW III, CARPINELLO and ROSE, JJ., concur.

OPINION OF THE COURT

SPAIN, J.

Plaintiffs commenced this negligence action seeking damages for lead poisoning injuries which plaintiff Shane L. Wynn (hereinafter the infant) allegedly sustained as a result of ingestion and/or inhalation of lead-based paint in the residential building owned by defendants in which plaintiffs resided from May 1991 through April 1993. Defendants are engaged in the business of community revitalization in which they, inter alia, purchase, develop and manage affordable housing in the City of Troy, Rensselaer County. In 1980, defendants purchased the subject three-story residential building and thereafter entered into an agreement with Troy Architectural Project which resulted in the "complete restoration" of the building. Defendants assert that all interior surfaces were either removed, covered with new sheetrock or brick and painted with nonlead paint or, at the least, the existing surfaces were painted over with nonlead paint.^[1] No specifics were presented regarding the restoration of stairs, railings or other woodwork. Thereafter, the City Code Enforcement Bureau issued a certificate of occupancy.

Plaintiff Adriana E. Wynn (hereinafter plaintiff) leased the first floor apartment in 1991, renewed in 1992, and resided there until April 1993. The infant was born in July 1991 and thereafter resided in the apartment with plaintiff. In July 1992, the infant was diagnosed with an elevated blood-lead level of 15.2 micrograms per deciliter (hereinafter mcg/dl), and a subsequent test in September 1992 showed an increased lead level of 20.5 mcg/dl.^[2] The Rensselaer County Health Department notified defendants in October 1992 that a child in the building had tested positive for lead and, following an inspection of the building, informed defendants by letter dated December 30, 1992 that while no lead hazards were detected inside plaintiffs' first floor apartment, lead paint hazards were detected in the interior common areas and on the outside of the building. Specifically, the inspection revealed lead paint on the baseboards along the right and left sides of the interior stairs leading to the second floor, on the kick plates between those stairs, on an exterior wall of the building and on the frame of the front door to the building.^[3] Defendants timely completed the interior and exterior abatement measures to the satisfaction of the County Health Department, as confirmed by its June 1993 inspection.

Plaintiffs moved out in April 1993 and, in May 1995, commenced this action against defendants for the infant's lead poisoning and related injuries, including developmental and behavioral problems claimed to relate to his ingestion and/or inhalation of lead-based paint chips and dust in defendants' building, and also sought damages for plaintiff's derivative claim for loss of services.^[4] Following joinder of issue, defendants moved for summary judgment dismissing the complaint and plaintiffs cross-moved for summary judgment in their favor. Supreme Court granted defendants' motion and dismissed the complaint, and denied plaintiffs' cross motion. Plaintiffs now appeal.

Although this action involves the still-emerging area of the liability of landlords for lead paint poisoning of children residing in their buildings, it nonetheless remains, fundamentally, a common-law negligence action addressed to the duty of landlords to inspect and maintain the common areas of their premises in a reasonably safe condition. Under long-standing common law, a landlord has a duty to use ordinary care to keep those areas which are reserved and intended for the common use of the tenants and owner of the building and subject to the landlord's control, i.e., the common areas, "in a reasonably safe and suitable condition" (Walsh v Frey, 116 App Div 527, 528; see, Bernstein v El-Mar Painting & Decorating Co., 13 NY2d 1053, 1055; Harrington v 615 W. Corp., 2 NY2d 476, 482; Altz v Leiberson, 233 NY 16, 17 [Cardozo, J.]; Hirsch v Radt, 228 NY 100, 104; Dollard v Roberts, 130 NY 269; see also, Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 643; Golob v Pasinsky, 178 NY 458, 461). In contrast, historically—at common law—landowners had no duty to maintain in good repair leased premises for which they had transferred possession and, thus, they generally could not be held liable for injuries caused by defective conditions in leased premises (see, Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 322, cert denied 444 US 992; Campbell v Elsie S. Holding Co., 251 NY 446; Altz v Leiberson, supra at 17; Edwards v New York & Harlem R.R. Co., 98 NY 245, 250; see also, Juarez v Wavecrest Mgt. Team, supra at 643). Over time, this doctrine was relaxed and landlords saw a measured expansion of their duties to maintain and repair dangerous conditions in their leased premises, of which they had notice and a reasonable opportunity to repair, under various contract and lease principles (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565-566; Worth Distribs. v Latham, 59 NY2d 231; Putnam v Stout, 38 NY2d 607, 616-617), by statute (see, Juarez v Wavecrest Mgt. Team, supra at 642-643; Park W. Mgt. Corp. v Mitchell, supra at 325, 328; Altz v Leiberson, supra; see also, Multiple Dwelling Law § 78) and, again recently, under traditional common-law negligence principles (see, Chapman v Silber, 97 NY2d 9, 19-22). Thus, a review of the common law governing premises liability and the duty of landlords to maintain their premises reflects that a distinction was drawn and exists between leased premises, such as an apartment unit of which possession has been transferred to a tenant, and common areas, such as stairs and hallways intended and required to be used by tenants and to which the landlord generally retains possession and unrestricted access.

It is also well established that in order for landlords to be liable for injuries resulting from a defective condition upon their premises, the plaintiffs must demonstrate "that the landlord[s] had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected" (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646, supra; see, Lyons v Cold Brook Cr. Realty Corp., 268 AD2d 659; Pacelli v Pinsley, 267 AD2d 706) and that the failure to do so caused the plaintiffs' injuries (see, Juarez v Wavecrest Mgt. Team, supra at 646, 648; Perry v Uccellini Enters., 275 AD2d 495, 496-497). In Chapman v Silber (supra), the Court of Appeals recently addressed claims of lead paint poisoning suffered by tenants' children which the plaintiffs therein attributed to chipping and peeling lead-based paint inside their apartments. The Court held that, absent controlling legislation, where the plaintiffs are not able to show that their landlords actually knew that lead was present in the chipped and peeling paint in their apartments, i.e., the landlords' actual notice of the lead hazards, the plaintiffs could raise a triable issue of fact so as to defeat their landlords' summary judgment motions premised upon lack of notice, by showing that the landlords:

"(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) [were] aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (id. at 15).

The Court held that such a five-part showing would entitle the jury to find that a landlord had constructive notice of the lead hazard condition, based upon actual knowledge "of the existence of many conditions indicating a lead paint hazard to young children" (id. at 21), i.e., such a showing would "raise an issue [of fact] as to the landlord's knowledge of a high degree of risk that there was a lead paint danger in the apartment sufficient to trigger its duty to address the condition" (id. at 22).

Here, since defendants deny having actual notice that there was a lead paint hazard in the building and plaintiffs did not offer proof that they provided notice to defendants, the issue is whether plaintiffs established that defendants/landlords had constructive notice of the dangerous condition sufficient to survive defendants' motion. We find that plaintiffs sufficiently raised a question of fact as to whether defendants knew or should have known of the existence of many conditions indicating a lead paint hazard to children, so as to enable but not require a jury to find that defendants had constructive notice.

In this case, viewing the evidence most favorably to plaintiffs on defendants' summary judgment motion, defendants admitted through their executive director that, as of the time of the infant's exposure, they had knowledge of possible lead hazards in older buildings and that this building may contain lead paint and that they were "probably" aware of the harmful effects of lead-based paint on children. Plaintiff's lease application established defendants' knowledge that an infant was living in this apartment. Thus, the second, fourth and fifth parts of the Chapman showing are satisfied. However, in our view, application of the remaining parts of the showing set out in Chapman—the first and third—to these facts requires further analysis.

Here, defendants retained possession of the common areas, obviating any need to "retain[] a right of entry" to their...