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ALBANY � The state Court of Appeals yesterday saved New York and other cities from the threat of almost limitless damages in lead paint cases. At the same time, it eliminated a potential source of relief for poisoned children. In two appeals decided together, the Court said there is no private right of action under the state Lead Paint Prevention Act, and municipalities cannot be held responsible if their lax or even negligent enforcement of the law results in harm. The Court held that without a special relationship between the government and the individual � a relationship that is difficult to establish � the municipality is not liable. “While, on occasion, the government’s failure to act is so severe as to render it liable, no government could possibly exist if [it] was made answerable in damages whenever it could have done better to protect someone from another person’s misconduct,” Judge Albert M. Rosenblatt wrote for the 7-0 Court. Pelaez v. Seide, 23, and Harris v. Llewellyn, 24, generated wide interest from municipalities, attorneys and advocates for lead-poisoned children. The essential question in both cases was whether the passage of strict anti-lead laws and assumption of the responsibility of inspecting dwellings created a special relationship between the government and the individual tenant. In both cases, the Second Department ruled against the plaintiffs, and in both cases the Court of Appeals unanimously affirmed. http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47143 “Opening municipalities to liability for carrying out their duties imperfectly could even disserve the statutory objective of causing municipalities to withdraw or reduce services in dealing with lead paint,” Judge Rosenblatt wrote. One case came out of Brooklyn, where 4-year-old Ashley Harris was allegedly lead poisoned in her apartment. A New York City Department of Health official counseled the Harris family on safety measures and ordered a lead abatement. When the landlord failed to correct the problem, the family was relocated. Eventually, a county-approved abatement was performed and the Harris family moved back into the apartment. However, the girl’s lead levels remained high and an independent inspection revealed excessive lead levels in the apartment. The other case arose in Putnam County, where shortly after moving into an apartment, Maria Nancy Pelaez’s twin toddlers were diagnosed with lead poisoning. An inspection by a Putnam County public health official detected peeling and chipping paint. The landlord was ordered to fix the problem. When abatement work had not yet started a week before it was supposed to be completed, the county engineer allegedly advised the Pelaez family to leave or follow safety precautions. The family stayed, and because of improper abatement measures the children were exposed to lead dust. Ultimately, the house was condemned. ‘Special’ Relationship In both cases, the question before the Court of Appeals was whether the city or the county had assumed a voluntary duty to protect the individual plaintiff. Judge Rosenblatt said liability could attach only through the existence of a “special relationship” between the government and the individual, and took pains to explain the limited ways in which such a relationship can form. He said a special duty arises only in one of three ways: � When a municipality violates a law enacted to aid a specific class of citizens. � When it voluntarily accepts responsibility for certain actions and creates a “justifiable reliance” on the part of the person who should have benefited. � When the municipality assumes control “in the face of a known, blatant and dangerous safety violation.” None of those factors fit the cases decided yesterday, the Court found. Judge Rosenblatt said there is no question that New York City and Putnam County officials could have performed better, especially since they had direct contact with the plaintiffs. Fatal to their claims, Judge Rosenblatt said, was the lack of any justifiable reliance � the plaintiffs did not rely to their detriment on specific government action. “In retrospect, the municipal employees in both cases may have carried out their duties imperfectly, and it surely would have been far better � and the harm perhaps avoided � had the Putnam authorities been more aggressive and the New York officials more thorough,” he said. “But that is not the test.” The Court said a ruling to the contrary would in effect make municipalities insurers of their residents and expose them to “liability whenever it can be shown that they could have or should have done better.” In Harris, John M. Daly of Fitzgerald & Fitzgerald in Yonkers appeared for the plaintiff and Assistant Corporation Counsel Janet L. Zaleon argued for the city. Ms. Zaleon said a contrary result would have exposed the city to enormous liability, while creating a disincentive to make any attempt to address the lead paint problem. “We would have been sued in every case where a child had an elevated blood lead level, no matter how they got it, which is usually in a private landlord’s building, and no matter how long the lead paint had been there,” she said. Anthony J. Servino of Servino, Santangelo & Randazzo in White Plains defended Putnam County in Pelaez and Nancy Fairchild Sachs of Manhattan represented the plaintiff. Allen Case Also yesterday, the Court of Appeals rejected on mootness grounds a challenge by actor Woody Allen and his neighbors to the construction of a residential tower in New York’s Carnegie Hill Historic District. Mr. Allen and other residents of the Upper East Side complained that the building, because of its height, was out of character with their neighborhood. However, the plaintiffs failed to seek an injunction early in the proceeding and now the building at 91st Street and Madison Avenue is nearly complete. Matter of Citineighbors Coalition v. New York City Landmarks Preservation Commission, 36, lets stand a ruling by the Appellate Division, First Department, that the issuance of a certificate of appropriateness is a ministerial act exempt from the requirements of the State Environmental Quality Review Act. http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=47145 The Court of Appeals, however, never reached that issue. It said the plaintiffs’ tactical or financial decision against trying to enjoin construction at an early stage renders the matter moot. “Having pursued a strategy that foisted all financial risks (other than their own legal fees and related expenses) onto the property owner and the developer, petitioners may not expect us to overlook the substantial completion of this construction project,” the Court said in a memorandum. Assistant Corporation Counsel Dona B. Morris argued for the city defendants. Robert S. Davis of Bryan Cave in Manhattan appeared for the developer. Roger G. Crane Jr. of Nixon Peabody in Manhattan represented the plaintiffs.

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