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MATTER OF RAMIREZ v. City of New York ia pART 3 Justice Stinson MATTER OF RAMIREZ v. City of New York – Motion by defendant/third-party defendant Fordham Bedford Housing Corporation (“Fordham”) for an order compelling plaintiff to authorize release of the academic records of infant plaintiff’s younger brother, Marco Mercado, is denied as academic in light of the disposition of the cross-motions. Cross-motion by defendant/third-party plaintiff City of New York (“City”) for the same relief is similarly denied. Cross-motion by plaintiff in Actions 1 and 2 for a protective order, an order amending the caption and partial summary judgment against Fordham and the City as to liability is granted only to the extent that the infant is substituted for his mother as the plaintiff in Action No. 1. Cross-motion by Fordham for summary judgment dismissing the complaints against it in Action 2, Index No.14065/98, and the third-party action, Index No. 2929/98, is granted. Pursuant to Civil Practice Law and Rules (“CPLR”) §3212(b), the complaints as against the City in Action 1, Index No. 6137/93, and against Albert Serrano as President of 3175-3177 Villa Avenue Tenants Association (“Tenants’ Association”) in Action 2, Index No.14065/98, are dismissed. The third-party action, Index No.1432/96, is dismissed accordingly as the City is no longer a defendant in Action 1. Infant plaintiff was allegedly injured by his exposure to lead paint between 1984 and 1986 in an apartment owned by the City and managed by the Tenants’ Association and Fordham. The building was first owned by defendant Villa Redevelopment Corporation. The City took title to the building in July 1984 for that owner’s failure to pay property taxes. The building was in a serious state of disrepair at the time. On November 4, 1984, the building’s tenants formed the Tenants’ Association and authorized their president to sign a lease with the City. In December 1984, the Tenants’ Association applied to the City’s Tenant Interim Lease program under which the Tenant’s Association would manage the building and the occupants would eventually become the owners. In April 1985, the City informed the occupants of the building that the Tenant’s Association was authorized to collect rent and be responsible for day to day management service. Beginning in June 1985, Fordham became a “sub-manager” of the building, meaning that it provided assistance to the Tenants’ Association in its management responsibilities and helped to negotiate the necessary repairs to the building to be financed by the City. According to Fordham’s employee, Cathy Brady, her title was “property manager” and her duties consisted of responsibility for the day-to-day operation of the multiple dwellings including rental of apartments, supervising employees, accounting, ordering supplies and legal matters. Repairs were decided upon by the Tenants’ Association and Fordham, subject to approval by the City. The superintendent of the building was an employee of the Tenants’ Association. Infant plaintiff was born on September 3, 1981. His mother, his older siblings and he moved into the subject apartment on January 20, 1984 when he was two years and four months old. Ms. Medina testified that she did not sign a lease. During a physical examination required for school in June 1986, when the infant was approximately four and a half years old, it was discovered that he had a micro lead level of 21 µg/dl and an elevated free erythrocyte protoporphyrin (“FEP”) level of 44 µg/dl. By September 18, the infant’s blood lead level tested at 34 µg/dl with an FEP of 80 µg/dl. The infant’s mother, Irma Medina, the plaintiff herein, brought a petition against Fordham and Cathy Brady in Housing Court, upon learning of her son’s diagnosis, to compel repairs to the walls and floors in the apartment, among other things. On August 14, 1986, the Housing Court ordered the repairs completed within sixty days. According to Ms. Medina’s deposition testimony, those repairs had just begun when she moved out of the apartment on September 3, 1986. An inspection by the Department of Health on September 24, 1986 still found lead paint on the door and window frames and an Order to Abate, dated October 6, 1986, was served on the City, as owner of the apartment. In the meantime, after leaving the subject apartment, the infant underwent chelation therapy in September and again in November 1986. After the second admission for chelation, the infant’s blood lead level fell to 11 µg/dl and his FEP measured 52 µg/dl. The family had moved first to Ms. Medina’s mother’s apartment in early September 1986 and then to various apartments in Yonkers after leaving the subject building. Nevertheless, the infant’s blood lead levels rose again until December 1987 when they reached a level of 32 µg/dl and an FEP level of 203 µg/dl. Since the subsequent residences were located outside the City of New York, there is no information as to whether those residences contained lead paint. Ms Medina testified that she did not attempt to ascertain whether or not they did. In 1993, plaintiff commenced the instant action and obtained a default judgment against the original owner, Villa Redevelopment Corporation. Plaintiff claimed that the injuries incurred by the infant due to his exposure to lead paint included slow social skills development, hyperactivity, learning disabilities and severe behavioral problems. A Preliminary Conference was not held until January 2000 but substantial discovery took place nonetheless. In November 2001, Fordham moved and the City cross-moved to compel the plaintiff to authorize disclosure of the academic records of the infant’s younger brother based on the deposition testimony of the plaintiff and the infant plaintiff that the younger brother suffered from depression, hyperactivity and academic and behavioral problems very similar to those of the infant plaintiff, and blood tests of the younger brother did not show evidence of elevated levels of lead. Both were enrolled in special education programs and both were treated with Ritalin. In response to the discovery motion and cross-motions, plaintiff moved for a protective order, for amendment of the caption and for summary judgment as to liability against the City and Fordham. Fordham then cross-moved for summary judgment dismissing the action against it. Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact. Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065 (1979). In order to set forth a prima facie case of negligence, plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty and an injury suffered by the plaintiff which was proximately caused by the breach. Derdiarian v. Felix Construction Corp., 51 N.Y.2d 308 (1980); Murray v. NYCHA, 269 A.D.2d 288 (1st Dep’t 2000). “If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.” Civil Practice Law and Rules (“CPLR”) §3212(b). 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. Juarez v. Wavecrest Management Team, 88 N.Y.2d 628 (1996). The New York City Housing Maintenance Code, Local Law 1, 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 permissible level of lead. This constitutes constructive notice to a building owner that a lead paint hazard is present and imposes a duty on the owner to abate the hazard. Id. A managing agent does not have a duty under Local Law 1, however, in the absence of a contract granting the managing agent complete and exclusive control of the premises. Ioannidou v. Kingswood Mgmt. Corp., 203 A.D.2d 248 (2nd Dep’t 1994); Keo v. Kimball Brooklands Corp., 189 A.D.2d 679 (1st Dep’t 1993); see also Gardner v. 1111 Corp., 286 A.D. 110, affd.1 N.Y.2d 758 (1955)(management cannot be liable for negligence as owner would be unless it stands in owner’s shoes). In support of her motion for summary judgment, plaintiff argued that she has made a prima facie case with the following undisputed facts: the infant suffered from a blood lead level exceeding 10 µg/dl, the infant was younger than seven years old when first diagnosed as suffering from lead poisoning, the infant resided in a building owned or managed by the defendants when diagnosed and the building was erected before 1960. Plaintiff has not set forth a prima facie case against Fordham, the City or the Tenants’ Association. Documents submitted by Fordham and the uncontradicted testimony of Cathy Brady shows that neither Fordham nor the Tenants’ Association had the necessary complete and exclusive control of the premises required to impose liability on a building manager. See Ioannidou, supra. Fordham offered a letter by the President of the Tenants’ Association, Carol Springman, to a Mr. Romolo Samaniego from the New York City Department of Housing Preservation and Development (“HPD”) reporting that the Tenants’ Association had voted to approve a particular repair plan. The lease between the City and the Tenants’ Association stated that the Tenants’ Association was not authorized to make any improvements or alterations without written approval of the City’s HPD. Cathy Brady testified that all decisions concerning management and renovations were made by consultation between the Tenants’ Association, Fordham and the City, so no one party had exclusive control of the decision-making process. See Gardner, supra. The City, as owner, had a duty to inspect for and abate lead paint pursuant to Local Law 1 only if it had notice of the residency of a child six years of age or under. See Juarez, supra. There is no evidence that Fordham, the City or anyone from the Tenants’ Association had prior notice of a lead paint hazard, actual or constructive. It is uncontested that the building was erected prior to 1960 and plaintiff testified that there was peeling paint and holes in the walls and floors. However, there is no evidence that the City was aware of children six years of age or under living in the subject apartment prior to the October 1986 notice received from the Department of Health. There is no evidence that Fordham had notice of a lead paint problem prior to service on Cathy Brady of plaintiff’s lawsuit in Housing Court. Plaintiff testified she did not sign a lease. She testified that she paid her rent to Cathy Brady in her office and always brought her children with her. Cathy Brady testified she did not remember the children. However, the fact that plaintiff had children with her when she paid her rent or recalls Cathy Brady inquiring as to their health and education is not enough to constitute notice, for purposes of imposing liability by summary judgment, that those children were plaintiff’s or that they resided in the apartment. But even assuming that Cathy Brady had notice of the children and their ages, Fordham, as a property manager without complete control of the premises, had no duty to inspect for or abate lead paint hazards and knowledge of children under six years of age residing in the subject apartment did not constitute constructive notice to Fordham of a lead paint hazard as it would have to an owner. Plaintiff has offered no evidence at all to show that the City had prior notice of children under six years of age residing in the apartment. There is no foundation for plaintiff’s argument that Cathy Brady was an agent of the City, giving the owner notice of young children residing in the building. Once plaintiff served her Housing Court lawsuit on Cathy Brady, repairs were promptly undertaken in accordance with the court order, but the plaintiff moved before repairs were complete. Therefore, there is no material issue as to negligent repair. Neither Cathy Brady nor Fordham were served with the subsequent Notice to Abate by the Department of Health. That was served upon the City as owner of the premises. Once again, by the time the City was served with the Notice to Abate, plaintiff had moved. Therefore, there is no material issue as to negligent abatement. In addition to plaintiff’s failure to show actual prior notice or constructive notice on the part of any defendant, plaintiff cannot show the extent to which the injuries allegedly suffered by the infant plaintiff are due to his exposure to lead at the subject premises. See Derdiarian, supra.. The report by plaintiff’s expert, Joel Redfield, Ph.D., relates a history of unacceptable levels of lead in the infant’s blood over a period of seven (7) years, continuing through March 1992, six years after moving from the subject apartment. When the infant’s blood lead measurements fell after chelation treatment, they rose significantly once again, more than a year after moving from the apartment. In addition, Dr. Redfield’s report states that a review of the infant’s medical records from “several sources” showed a test for lead done in July 1983, before his move to the subject apartment, revealing an elevated FEP level of 38 µg/dl, a test performed because the infant had begun to lose weight and become irritable and aggressive. According to Dr. Redfield, the infant was eventually diagnosed with lead poisoning at age three and treated for the condition, but additional details were unavailable. The report stated that there was no available record of subsequent testing until June 1986. A report by defendant’s psychiatric expert, William Kaplan, M.D., relates that the plaintiff told him in his interview with her that the infant was first diagnosed with lead poisoning in July 1983 at two years of age. A copy of the infant’s medical records from Westchester County Medical Center, dated March 20, 1992, report a history of lead poisoning at age three and state that the family noted a change in the infant’s behavior about that time “with patient being more prone to aggression.” Plaintiff has chosen to remain silent regarding these statements by her own expert, information she herself appears to have provided to defendant’s expert and medical records predating commencement of this action. In light of the disposition of the cross-motions for summary judgment, it is not necessary to decide the discovery issue. Therefore, the motion and cross-motion to compel disclosure of the infant’s brother’s academic records is denied as moot. Plaintiff’s motion to amend the caption is granted only to the extent that the infant’s name may be substituted for his mother’s as the plaintiff in Action No.1 since the infant has reached the age of majority. Plaintiff argued that further amendment was warranted because the actions had been consolidated by a previous order, but they were, in fact, only joined for trial. See Order of Acting Supreme Court Justice Stanley Green, dated March 30, 1999. The caption will be further amended, but only as set forth below in accordance with this order. In summary, the action against the City of New York is dismissed because plaintiff has put forth no evidence that the City had prior notice, actual or constructive, of a lead-paint hazard at the subject premises and because plaintiff cannot prove the extent to which the injuries suffered by infant plaintiff were proximately caused by his exposure to lead in the City-owned building. The action against Fordham and the Tenant’s Association is dismissed for all the above reasons and, in addition, because neither, as property managers without exclusive control of the premises, had a duty pursuant to Local Law 1. The action as against Albert Serrano as President of the Villa Avenue Tenants Association is dismissed because there is no evidence plaintiff served Albert Serrano and because there is no evidence of any liability on the part of the Tenants’ Association. Both third-party actions are dismissed because neither third-party defendant is liable to the plaintiff in the main action and because the City, as third-party plaintiff, is no longer a defendant in the main action. Therefore, Action 2, Index No. 14065/98, and both third-party actions, Index Nos. 1432/96 and 2929/98, are all dismissed. The only remaining action is Action 1, Index No. 6137/93. The caption of that action shall be amended to read as follows: MIGUEL RAMIREZ v. VILLA REDEVELOPMENT CORP. – Cross-movant City is directed to serve a copy of this order on the Clerk of Court who shall amend the caption as set forth above and transfer the action to a non-City part. This constitutes the decision and order of the court.

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