Juarez v. Wavecrest Management Team Ltd.

OPINION OF THE COURT

This case, brought on behalf of a child suffering from lead

We hold that to establish liability plaintiffs must demonstrate that the building owner had actual or constructive notice that a child six years of age or under was living in one of its residential units. Under the statutory scheme, a landlord who has such notice is chargeable with notice of any hazardous lead condition in that unit.

Here, defendant landlord has failed to contest plaintiffs’ allegations that a lead hazard existed in the apartment and that defendant made no attempt to remedy it. Defendant has also failed to rebut plaintiffs’ prima facie showing of causation. Thus, no triable issues exist regarding defendant’s constructive notice of the hazard, the reasonableness of abatement efforts or causation — these issues were all correctly resolved against the landlord. There remains for resolution only the disputed question whether defendant had notice of the residency of a child under seven.

Facts

Defendant Mayaghor Realty obtained title to the building at 2295 Morris Avenue in the Bronx in September 1984. The tenant of record in apartment 4C at that time was Julio Ortiz. The lease between Mayaghor and Ortiz prohibited the tenant from subletting all or part of the apartment. Nevertheless, in October 1987, plaintiff Noemi Juarez and her two infant daughters sublet part of apartment 4C from Ortiz. Juarez paid Ortiz $150 per month to rent a bedroom and for use of the kitchen and bathroom. This arrangement continued until October 1991.

According to Juarez, peeling paint from the outset pervaded the apartment, with paint chips on the window, pipes, radiator and falling from the ceiling. On several occasions, she observed both daughters with paint dust on their hands and found them eating paint chips. At no time during their residency did

After approximately a year, two-year-old plaintiff Peggy Juarez began complaining of stomach pain and exhibiting behavioral problems. In 1988, she was diagnosed as having lead poisoning. She received treatment at Montefiore Hospital and subsequently underwent outpatient chelation therapy.

On September 16, 1988, a New York City Department of Health sanitarian took 39 samples of paint from apartment 4C, and 38 of those samples tested positive for lead paint. A "Lead Poisoning Investigation Checklist” completed by the sanitarian that day indicates that Peggy had been seen eating paint chips, that there were defective surfaces and peeling paint in every area of the apartment, and that no other environmental conditions indicating a different source of lead were present.

Five days later, the Department of Health issued an Order to Abate Nuisance to the managing agent of the building, Wavecrest Management Team Ltd. The Order explained that a child with a specified high blood level of lead resided in apartment 4C, which was identified as a nuisance. The Order further stated that an inspection of the apartment had revealed paint containing levels of lead in violation of New York City Health Code § 173.13 (c) and (d) and detailed numerous lead contamination violations in seven areas of the apartment.

A principal of Mayaghor acknowledged during his deposition testimony in February 1992 that the corporation learned from Wavecrest that the City had discovered a lead poisoning problem in apartment 4C. Nevertheless, a subsequent Health Department inspection report showed that, as of October 19, 1988, the problem had not been corrected. Finally, on or about November 2, 1988, a construction company hired by the City commenced repairs but failed to eliminate the problem. A Department of Health sanitarian conducted another inspection of the apartment in December 1988 and issued a notice of remaining violations in January 1989. A Department of Health document established that the lead violations continued as late as February 1989.

Consequently, when Peggy returned from the hospital, her toys remained covered with dust and she continued to put her dust-covered hands into her mouth. Blood tests conducted in December 1988 revealed that, notwithstanding the treatment

Plaintiffs subsequently brought this action against defendants Mayaghor, Wavecrest and the successor owner of the building (2295 Morris Associates), alleging that Peggy suffered injury as a result of the defendants’ negligence. In their bill of particulars, plaintiffs claimed that defendants violated various provisions of the Administrative Code, the City Health Code and other State and Federal health regulations.

Plaintiffs moved for summary judgment as to liability, arguing that landlords have an affirmative duty to inspect multiple dwelling units for dangerous lead conditions. Although the trial court rejected this argument, it granted plaintiffs’ motion nonetheless, concluding that defendants had acquired notice of the lead condition and that a child was living in the apartment upon receiving the Department of Health Order. The court further found that there was no evidence that defendants took any steps to alleviate the dangerous condition.

On appeal, the Appellate Division concluded that summary judgment should have been denied against Wavecrest, since plaintiffs failed to submit evidence that Wavecrest had complete and exclusive control of the building. The court also denied summary judgment against the successor owner, finding an issue of fact as to the infant plaintiff’s continued exposure to a lead condition after 2295 Morris Associates assumed ownership of the premises. As to defendant Mayaghor, the Appellate Division affirmed the grant of summary judgment, holding that Local Law 1 imposes an affirmative duty of inspection on landowners irrespective of notice, and granted Mayaghor leave to appeal.

We conclude that liability does not attach under Local Law 1 unless a landlord has actual or constructive notice that a child under seven resides in the apartment, but that landlords with such knowledge may be charged with notice of dangerous lead conditions within their buildings. Because a material issue of fact exists here as to whether defendant had notice prior to receipt of the Order to Abate Nuisance that a child under seven was living in apartment 4C, we remit for further proceedings on that limited issue.

Legal Analysis

Background of Local Law 1

The serious health hazard posed to children by exposure to lead-based paint is by now well established. Children under the

While the use of lead-based paint on interior building surfaces has been prohibited since January 1960 (see, NY City Health Code § 173.13), such paint continues to cover the walls of two out of three City dwellings (see, 1993 Final Report of Mayor’s Advisory Comm to Prevent Childhood Lead-Paint Poisoning, at 1). Its widespread use thus renders lead poisoning a continuing threat to the health of young children in New York City, especially those in older and poverty-ridden neighborhoods (see, New York City Coalition To End Lead Poisoning v Koch, 138 Misc 2d 188 , 189, affd 139 AD2d 404 ; 1995 Report of Lead-Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation’s Housing, at 3). Indeed, "[c]hildhood lead-paint poisoning may be the most significant environmental disease in New York City, in terms of the numbers of cases, the severity of the medical damage created, and the personal, social, and economic costs it imposes” (1993 Final Report of the Mayor’s Advisory Comm to Prevent Childhood Lead-Paint Poisoning, at 1).

Abatement of lead-based paint is an expensive process (see, Coyne, Lead Paint Abatement: Who Should Pay?, 2 Wis Envtl LJ 113 , 115, n 9 [Winter 1995] [estimating abatement costs to range from 20 cents to $130.96 per square foot]; Miceli, Pancak and Sirmans, Protecting Children From Lead-Based Paint Poisoning: Should Landlords Bear the Burden?, 23 BC Envtl Aff L Rev 1 , 8 [Fall 1995]). With nearly two million apartments in New York City built before lead-based paint was banned in 1960, addressing this problem therefore requires a weighing of policy interests, a responsibility that rests with Federal, State and local legislative bodies.

At issue here is the lead abatement legislation adopted by the New York City Council in 1982 and contained in the Housing Maintenance Code, Local Law 1. It 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 § 27-2013 [h] [1]).

Paragraph (2) establishes a rebuttable presumption that, in any unit within a multiple dwelling erected prior to 1960 in which a child six years of age or under resides, any peeling paint or similar surface-coating material contains more than the specified level of lead. Paragraph (3) classifies the existence of paint or other substance containing the designated level of lead in an apartment with a child six years of age or younger to be a class C immediately hazardous violation, which must be corrected within 24 hours (see, Administrative Code § 27-2115 [c]).

Plaintiffs argue that the failure to keep a residential unit free of lead-based paint, in violation of Local Law 1, gives rise to absolute liability. Alternatively, they urge that defendant negligently failed to maintain the premises in a reasonably safe condition by failing to comply with Local Law 1. Defendant counters that it cannot be liable for plaintiff’s injuries because, prior to receiving the Health Department Order, it had no notice that the infant plaintiff resided on the premises or of the dangerous lead condition.

Resolution of these questions requires a brief review of some general principles of premises liability.

Premises Liability

Generally, 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 and reserves the right to enter for inspection and repair (see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559 , 565-566; Worth Distribs. v Latham, 59 NY2d 231 , 238). Additionally, the burden is on the plaintiff to prove not only that a dangerous condition existed on the premises but also that the landlord had notice of that condition and a reasonable opportunity to repair it (Madrid v

At common law landlords had no duty to maintain leased premises, other than common areas, in good repair (Altz v Leiberson, 233 NY 16 , 17; see, Prosser and Keeton, Torts § 63, at 434 [5th ed]; 2 Rasch, New York Landlord and Tenant— Summary Proceedings 18:1, at 30-31 [3d ed]). This was changed by adoption of the Tenement House Act (L1901, ch 334). Its successor, the Multiple Dwelling Law, directs that "[e]very multiple dwelling * * * and every part thereof and the lot upon which it is situated, shall be kept in good repair” (§ 78 [1]). This statute thus imposes upon a landlord “a duty to persons on its premises to maintain them in a reasonably safe condition” (Mas v Two Bridges Assocs., 75 NY2d 680 , 687; see also, Altz v Leiberson, 233 NY at 17-18 , supra). New York City landlords are further charged under the Administrative Code with the responsibility for safe maintenance of their buildings and facilities (Administrative Code §§ 27-127, 27-128; see, Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 566 , supra).

In addition to these general obligations to remedy any defective condition on the premises, Local Law 1 imposes a specific duty to ameliorate hazardous levels of lead-based paint. Correlative with the specific obligation to abate a hazardous lead condition, Local Law 1 implicitly grants landlords the right of entry to effectuate such repairs (see, Gildea v Harris Fine Realty & Constr. Co., 249 App Div 775 ; see also, Administrative Code § 27-2008 [giving owner right to enter premises to make repairs required by the code]). Local Law 1 thus vests landlords with sufficient control over leased premises to sustain liability (see, Worth Distribs. v Latham, 59 NY2d at 238 , supra). The nature of the liability imposed by Local Law 1 is the subject to which we next turn.

Liability Under Local Law 1

We reject plaintiffs’ argument that violation of Local Law 1 results in absolute liability, under which "[n]o excuse is recognized, and neither reasonable ignorance nor all proper care will avoid liability” (Prosser and Keeton, Torts § 36, at 227 [5th ed]). Unlike lead paint measures adopted in some other jurisdictions, Local Law 1 does not establish a statutory cause of action for civil remedies (compare, Mass Gen Laws Ann ch 111, § 199). Furthermore, while Local Law 1 is unques

Indeed, Local Law 1 does not itself create an additional standard of care. Rather, Local Law 1 defines a particular hazardous condition — the presence of specified levels of lead-based paint in an apartment occupied by a child six years of age or under — to which a landlord’s general duty to repair applies. That is, Local Law 1 simply obligates landlords to remedy a specific dangerous defect. Breach of a landlord’s general statutory duty to maintain leased premises in a safe condition, moreover, does not impose liability without fault, but requires a showing of those elements comprising common-law negligence (see, Altz v Leiberson, 233 NY at 18 , supra; Collins v Noss, 258 App Div 101 , affd 283 NY 595 ).

Consequently, we agree with the Appellate Division that Local Law 1 imposes "a standard of reasonableness” that allows a landlord to "persuade the fact finder that the existence of a lead paint hazard existed despite his diligent and reasonable efforts to prevent it” ( 212 AD2d 38 , 48) (emphasis in original). Local Law 1 places a duty on landlords to abate a lead hazard. Where, however, a landlord establishes that it exercised due care, it will not be held liable. To avoid liability, a landlord must prove that, even though it violated Local Law 1, it was acting reasonably under the circumstances.

That liability turns on the reasonableness of a landlord’s efforts to ameliorate or prevent a dangerous lead condition is supported by the regulatory scheme. Tellingly, Local Law 1 does not provide how the abatement of a hazardous lead condition is to be accomplished or provide its own safety measures but states that the defect shall be removed or covered "¿n a manner approved by the department” (Administrative Code § 27-2013 [h] [1] [emphasis added]). Local Law 1 expressly defers to the rule-making authority of the Department of Housing Preservation and Development to establish the requisite safeguards. Chapter 11 of title 28 of the Rules of the City of New York sets forth the precise methods by which a landlord

Notice

It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord 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 (see, e.g., Piacquadio v Recine Realty Corp., 84 NY2d 967 , 969; Worth Distribs. v Latham, 59 NY2d at 238 , supra; see also, Putnam v Stout, 38 NY2d at 612 , supra). In construing Local Law 1, which creates a basis of landlord liability not recognized under the common law, we must presume that the City Council was aware of the common-law rule and abrogated it only to the extent indicated by the clear import of its enactment (Morris v Snappy Car Rental, 84 NY2d 21 , 28; B & F Bldg. Corp. v Liebig, 76 NY2d 689 , 693).

Under Local Law 1, lead-based paint constitutes a hazard when two conditions are present: first, lead in an amount exceeding the stated threshold and second, a child six years of age or under residing in the apartment. Manifestly, neither Local Law 1 itself nor the regulations promulgated thereunder expressly eliminate the common-law notice requirement as to either element (see, Administrative Code § 27-2013 [h]; 28 RCNY 11-01 — 11-07). To the contrary, the regulatory scheme explicitly provides for notice to the landlord of the presence of hazardous levels of lead-based paint in an apartment occupied by a child (see, 28 RCNY 11-06) and allows the landlord an opportunity to remedy the condition after receiving notice (see, Administrative Code § 27-2115 [c]). To be liable for injuries caused by the lead hazard, then, a landlord must have actual or constructive notice of both the hazardous lead condition and the residency of a child six years of age or younger.

Nor does Local Law 1 require landlords affirmatively to ascertain whether children six years of age or under reside in their buildings. The absence of language charging landlords with such a duty of inspection is particularly telling when the lead abatement scheme is compared to the regulatory provisions requiring landlords to install window guards in multiple dwellings (see, Administrative Code § 17-123; 24 RCNY 12-03 [c]). Under the window guard law, a landlord is explicitly required to deliver an annual notice to each residential unit

Given the absence of similar inspection provisions under Local Law 1, we conclude that the City Council did not intend to charge landlords with the responsibility of determining whether young children reside in any of their dwelling units. For the reasons that follow, however, we hold that where a landlord has notice that a child under the specified age is residing in an apartment, Local Law 1 provides for constructive notice of the hazardous lead condition.

Local Law 1 places a specific duty on landlords to abate lead paint in leased premises where children under the specified age reside (see, Administrative Code § 27-2013 [h]). It further establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition (see, Administrative Code § 27-2013 [h] [2]). Local Law 1 thus gives landlords authority to enter dwelling units occupied by such children for the very purpose of inspecting for and repairing a lead paint defect (see also, Administrative Code § 27-2008 [granting right of entry to repair and inspect premises in order to comply with code]).

We have held, moreover, that a building owner may be charged with constructive notice of defects in those parts of the building into which it has authority to enter (see, e.g., Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d at 565-566 , supra; Tkach v Montefiore Hosp., 289 NY 387 , 389-390, supra). Thus, retention in the lease of the right to enter the interior of an apartment to inspect the premises has sufficed to charge an out-of-possession landlord with constructive notice of a defect within the apartment (see, Tkach v Montefiore Hosp., 289 NY at 389-390 ). Likewise, the right of entry conferred by Local Law 1 gives a landlord constructive notice of any lead paint hazard within an apartment that the landlord knows is occupied by a child of the specified age.

Here, defendant acknowledges that, as of the date it received the Order to Abate Nuisance, it had actual notice both that a

If, however, defendant had knowledge that a child under seven resided in the apartment, it may be charged with notice of the lead hazard prior to receipt of the Order. Defendant had a right of entry under Local Law 1 as well as the lease and failed to contest plaintiffs’ allegation of a long-standing, manifest peeling paint condition.

Causation

As a final matter, we determine that plaintiffs established causation as a matter of law.

Plaintiffs’ proof sufficed to establish prima facie causation. In particular, they produced evidence that the apartment contained hazardous levels of lead-based paint, that Peggy Juarez was observed ingesting paint chips and dust and had elevated blood levels of lead, that Peggy was never out of her mother’s custody for any substantial period of time and that she did not complain of stomach pains or manifest certain behavioral changes prior to moving into this apartment.

In response, defendant submitted speculative assertions by its attorney as to other possible sources of the lead poisoning and Peggy’s behavioral disorders. The bare allegations of counsel, who lacked personal knowledge of the underlying facts, do not constitute competent evidentiary proof sufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557 , 562-563). The only other proof offered was an affidavit by Dr. Robert M. Gordon, an expert physician who evaluated Peggy. Although he did not dispute the diagnosis of lead, poisoning and even agreed that it may have contributed to Peggy’s deficiencies, Dr. Gordon speculated that they may also have been the result of her bilingual background and parents’ education level. Such surmise, however, is insufficient to raise a triable issue of fact.

In sum, we conclude that Local Law 1 does not impose on landlords a continuous and affirmative duty to inspect for the residence of children under seven. The law, however, does allow landlords to be charged with notice of dangerous lead conditions in their building. Whether a landlord has satisfied its duty to remedy a hazardous lead condition is governed by a standard of reasonableness. Here, defendant had constructive notice of the hazardous lead condition in apartment 4C; there is no issue as to the reasonableness of its abatement efforts — it made none; and no triable issue of fact exists as to causation. Only the narrow question of notice of the residency of a child under seven remains open for determination.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs’ cross motion for partial summary judgment as to liability with respect to defendant Mayaghor Realty, Inc., denied and the certified question answered in the negative.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ci~ parick concur.

Order reversed, etc.