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A 3-year-old boy who allegedly suffered injuries from the lead paint in his father’s new house does not have standing under the Residential Lead-Based Paint Hazard Reduction Act of 1992 to sue the previous owner of the house, New York’s Appellate Division, 4th Department, has ruled. “[B]ased upon the express language of the Act designating the purchaser or lessee of a residence as the person intended to be protected thereby, we conclude that plaintiff’s son is not within the class of persons intended to be protected by the Act,” the unanimous panel held in Skerritt v. Bach, 1291. The court dismissed the child’s action and his father’s derivative action. The father’s individual claim remains ongoing. James Skerritt bought his Utica, N.Y., home in September 2001. Subsequently, a routine medical exam of his son Brandon revealed blood-lead levels three times higher than the “level of concern” set forth by the Centers for Disease Control, according to the Skerritts’ attorney, Mark G. Richter of Albany-based O’Connell and Aronowitz. Lead poisoning can cause learning disabilities, behavioral problems, seizures, comas and death, according to the CDC’s Web site. Though lead-based paints were banned for use in housing in 1978, they remain a leading source of lead exposure among children, who are particularly vulnerable to lead. An inspection of the Skerritts’ house revealed the presence of lead-based paints. Skerritt initiated an action against the seller, Michael Beaudette, and Beaudette’s attorney, Richard N. Bach, on behalf of himself and his son. The Supreme Court dismissed the action against Mr. Bach. Skerritt alleged that Beaudette violated the Residential Lead-Based Paint Hazard Reduction Act, which requires sellers of residential buildings, among other things, to alert them to the presence of any known lead-based paint. Last week, the 4th Department dismissed two of the Skerritts’ three claims against Beaudette. “[W]e note that the presence of lead-based paint hazards is particularly hazardous to children under the age of six [but] there is no implied private right of action on the part of plaintiff’s son pursuant to the Act,” the panel held in its unsigned decision. Justices Henry J. Scudder, Salvatore R. Martoche, Elizabeth W. Pine, John F. Lawton and Leo F. Hayes joined the unanimous decision. The decision marks the first time an Appellate Division court has addressed whether the child of a purchaser of a residence in New York has standing to sue under the federal act. The 4th Department’s decision puts the state in line with other jurisdictions that have ruled on the matter, according to Matthew Chachere, a staff attorney at the Northern Manhattan Improvement Corp., which represents the New York City Coalition to End Lead Poisoning. “I think the courts have fairly uniformly now determined that this is pretty much a real estate transaction statute and that damages accrue only to people who are parties to the [transaction],” said Chachere, who is not involved in this action. “[Children] do have their own remedies — they would have a cause of action, they just don’t have this federal statute giving them treble damages.” The defendant’s attorney, Michael T. Snyder of Albany’s Maynard, O’Connor, Smith & Catalinotto, said the decision sets a proper precedent. “I thought it was correctly decided based on the plain language of the statute,” he said. Along with Mr. Richter, Peter Danziger, also of O’Connell and Aronowitz, represented the Skerritts.

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