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A rarely invoked federal lead paint disclosure statute is the linchpin of a new lawsuit filed in Albany, N.Y., by a major upstate lead litigation team. The law in question, the Residential Lead-Based Paint Hazard Reduction Act, was enacted to protect consumers from unknowingly purchasing a house containing lead paint. It requires anyone selling a single-family home built before 1978 to notify potential buyers of a possible lead problem. Apparently, the statute is rarely the basis for litigation. This month, however, the lead litigation group at O’Connell and Arnowitz, an Albany firm handling dozens of upstate lead paint cases, cited the warning law in a case involving a state trooper who bought a farmhouse in Schoharie County. Sommers v. Whipple, 3584-03, alleged that George S. Sommers bought the property in 2000 from a real estate broker, Henry A. Whipple. It contends that Whipple received the proper notification when he purchased the property in January 2000, but did not share the information when he sold the house to Sommers nine months later. Sommers, according to the complaint, performed renovation work without realizing the century-old structure contained lead, and inadvertently poisoned his 1-year-old son. Under the disclosure act, sellers and real estate agents are required to reveal known lead hazards and to provide buyers with an educational brochure. A knowing violation exposes the seller or broker to treble damages, punitive damages and attorney fees. O’Connell and Arnowitz attorneys Peter Danziger, James E. Nixon and Mark G. Richter, who are handling the case for the plaintiff, are demanding $5 million in damages. Whipple was not immediately available for comment. “Most homes built before 1978 have dangerous amounts of lead in the paint,” Danziger said. “The law requires disclosures from sellers and real estate agents and disclosures from landlords. It is critical that homebuyers are aware of these hazards and their right to have a lead inspection. To ensure the enforcement of the law, Congress added a provision for triple damages and attorney fees.” However, there remains a question of whether the damages available under the disclosure act are limited to contractual recovery or if they extend to personal injury. NOTICES OF CLAIM In another recent upstate lead paint development, a judge in Albany granted permission to three children to file late notices of claim against Albany County. Matter of the Claims of Ebony Williams, Kyle Williams and Kenneth Williams v. County of Albany, 1164-03, stems from alleged poisonings that occurred as long as 17 years ago. Justice Bernard J. Malone Jr. found the application timely since it was brought within one year and 90 days of each claimant reaching his or her 18th birthday. “A court has broad discretion in deciding whether to permit a late notice of claim and should consider all of the factors,” Justice Malone said. Justice Malone observed that Albany County had the children’s medical records and its own inspection records within 90 days of the alleged exposure, so there is no issue of prejudice. Accordingly, the plaintiffs “need not demonstrate a reasonable excuse for the delay or tie their infancy into the reason for the delay,” the court said. Appearing were Richter for the plaintiff, and Arete K. Sprio of D’Agostino, Krackeler, Baynes & Maguire in Menands, Albany County, for the county.

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