Yaniveth R. v. LTD Realty Co.

• Decision Date: 05 April 2016
• Docket Number: No. 35,35
• Citation: 27 N.Y.3d 186,2016 N.Y. Slip Op. 02550,32 N.Y.S.3d 10,51 N.E.3d 521
• Parties: YANIVETH R., an Infant, by Her Mother and Natural Guardian, RAMONA S., et al., Appellants, v. LTD REALTY CO. et al., Respondents, et al., Defendants. (And a Third–Party Action.).
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 186

51 N.E.3d 521

32 N.Y.S.3d 10

2016 N.Y. Slip Op. 02550

YANIVETH R., an Infant, by Her Mother and Natural Guardian, RAMONA S., et al., Appellants

v. LTD REALTY CO. et al., Respondents, et al., Defendants.(And a Third–Party Action.).

No. 35

Court of Appeals of New York.

April 5, 2016.

Levy Konigsberg, LLP, New York City (Alan J. Konigsberg and Brendan E. Little of counsel), for appellants.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead (Susan Weihs Darlington and Josephine DeLuca of counsel), for respondents.

McGaw, Alventosa & Zajac, Jericho (Andrew Zajac and Dawn C. DiSimone of counsel), Margaret G. Klein, Defense Association of New York, Inc., Rona L. Platt, and Brendan T. Fitzpatrick, for Defense Association of New York, Inc., amicus curiae.

Herzfeld & Rubin, P.C., New York City (Linda M. Brown and David B. Hamm of counsel), for New York City Housing Authority, amicus curiae.

Matthew J. Chachère, Northern Manhattan Improvement Corp. Legal Services, New York City and Andrew Goldberg, New York City, for New York City Coalition to End Lead Poisoning and another, amici curiae.

OPINION OF THE COURT

PIGOTT, J.

New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of City of N.Y. former § 27–2013[h][1], as added by Local Law No. 1 [1982] of City of N.Y.). The issue in this case is whether a child “ reside[s]” in an apartment containing lead-based paint, thereby triggering a landlord's duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver.

I.

Plaintiff Yaniveth R. was born in January 1997. She lived with her father and mother, plaintiff Ramona S., in an apartment in the Bronx from early 1997 until 2002. Yaniveth's paternal grandmother lived nearby on the first floor of an apartment building owned by defendants LTD Realty Co. and LTD Realty Co., LLC. When Yaniveth was three months old, her grandmother began watching her five days a week at her apartment, from approximately 9:30 a.m. until 6:30 or 7:00 p.m., while Yaniveth's parents were at work. Yaniveth returned to her parents' apartment each evening, where she lived with her mother, father and older sister. According to both Ramona and Yaniveth's grandmother, Yaniveth did not live with the grandmother—she lived only at her parents' apartment.

In January 1998, Yaniveth was found to have an elevated blood lead level. The New York City Department of Health identified hazardous lead-paint conditions at the grandmother's apartment and issued defendants an order to abate.

In 2006, Ramona commenced this negligence action individually and on Yaniveth's behalf against defendants and related individuals. Plaintiffs alleged that, because Yaniveth “spent a significant amount of time” in her grandmother's apartment, defendants owed her a duty to abate the apartment of hazardous lead-paint conditions pursuant to former section 27–2013(h)(1) of the Administrative Code, and that their failure to do so caused plaintiffs' injuries. Former section 27–2013(h) provides:

“The owner of a multiple dwelling shall remove or cover in a manner approved by the department any paint or other similar surface[-]coating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the non-volatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside” (Administrative Code former § 27–2013[h][1] ).¹

Defendants moved for summary judgment, arguing that, under Local Law 1, they owed no duty to remove lead-based paint from the grandmother's apartment because Yaniveth did not “reside” there. In the absence of a duty, defendants claimed, there can be no negligence.

Supreme Court granted defendants' motion and dismissed the complaint. The Appellate Division unanimously affirmed, holding that defendants established prima facie that while the infant plaintiff was cared for at the apartment, during the day, she resided elsewhere, with her parents, and that “plaintiffs failed to raise an issue of fact as to the infant's residence” (120 A.D.3d 1142, 1142, 992 N.Y.S.2d 434 [1st Dept.2014] ). We granted plaintiffs leave to appeal (24 N.Y.3d 912, 2014 WL 7180097 [2014] ) and now affirm.

II.

“[A] landlord may be held liable for injury caused by a defective or dangerous condition upon the leased premises if the landlord is under a statutory or contractual duty to maintain the premises in repair” (Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 642–643, 649 N.Y.S.2d 115, 672 N.E.2d 135 [1996] ). Local Law 1 imposes such a duty, requiring landlords to “remove or cover” lead-based paint “in any dwelling unit in which a child or children six (6) years of age and under reside ” (Administrative Code former § 27–2013[h][1] [emphasis added] ).

This appeal turns on the meaning of the word “reside.” Plaintiffs contend that we should interpret the term as broadly as possible, to include places in which a child is physically present or spends a substantial amount of time. By that definition, plaintiffs claim Yaniveth “reside[d]” in her grandmother's apartment and therefore Local Law 1 required defendants to abate the premises of lead-based paint. If, however, the word “reside” requires something more than mere physical presence in a place (as the courts below determined), then Yaniveth did not “reside” in her grandmother's apartment, defendants did not owe a duty under the statute and plaintiffs' negligence claim must fail (see Juarez, 88 N.Y.2d at 647, 649 N.Y.S.2d 115, 672 N.E.2d 135 ; Rivera v. Nelson Realty, LLC, 7 N.Y.3d 530, 534–535, 825 N.Y.S.2d 422, 858 N.E.2d 1127 [2006] [dismissing plaintiff's complaint where neither the common law nor any statute imposed a duty on landlords to cover radiators in apartments in which young children live] ).

Local Law 1 does not define the word “reside.” In the absence of a statutory definition, “we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase” (Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 N.Y.2d 475, 479–480, 729 N.Y.S.2d 658, 754 N.E.2d 760 [2001] [internal quotation marks omitted]; see also Matter of Orens v. Novello, 99 N.Y.2d 180, 185–186, 753 N.Y.S.2d 427, 783 N.E.2d 492 [2002] [relying on Merriam–Webster's and Black's Law Dictionary to ascertain the meaning of the term “lay member” in Public Health Law § 230(6) ] ).

Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a place as one's legal domicile” (Merriam–Webster's New Collegiate Dictionary 1003 [9th ed. 1986] ) and “[to] have a settled abode for a time: have one's residence or domicile” (Webster's Third New International Dictionary, Unabridged 1931 [Merriam–Webster 1981] ). According to Webster's Third, “reside” is the “preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” (id. ).² Black's Law Dictionary notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile” (Black's Law Dictionary 1176 [5th ed. 1979] [citation omitted] ).

This understanding of the term “reside” is consistent with the rule we set out in Matter of Newcomb, 192 N.Y. 238, 84 N.E. 950 (1908). Although plaintiffs cite Newcomb for the proposition that “[r]esidence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one's domicile” (id. at 250, 84 N.E. 950 ), our opinion made clear that “[r]esidence means living in a particular locality,” even if a person does not intend to make that place a “ fixed and permanent home,” i.e., a domicile (id. [emphasis added] ). As we stated more recently, a person's “residence” entails “something more than temporary or physical presence,” with some “degree of permanence and [an] intention to remain” (Dean v. Tower Ins. Co. of N.Y., 19 N.Y.3d 704, 708, 955 N.Y.S.2d 817, 979 N.E.2d 1143 [2012] ). Thus, “[a]lthough it is true that a person may have more than one residence[,] ... to consider a place as such, he must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency” (Hammerman v. Louis Watch Co., 7 A.D.2d 817, 818, 181 N.Y.S.2d 65 [3d Dept.1958] ; see also Katz v. Siroty, 62 A.D.2d 1011, 1012, 403 N.Y.S.2d 770 [2d Dept.1978] [holding that plaintiff did not establish a second residence at his sister's apartment in Manhattan even though he kept a room there and occasionally stayed overnight for business because, citing the rule in Hammerman, he did not “have the bona fide intent to retain the place as a residence for some length of time and with some degree of permanency”] ).

Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of the words it used as well as existing decisional law (cf. Matter of Knight–Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 157, 518 N.Y.S.2d 595, 511 N.E.2d 1116 [1987] ), which, in this case, understood residence as something more than physical presence but something less than domicile—living in a particular place with the intent to retain it as a...