Justice Charles J. Markey
Martinez sought damages for lead poisoning suffered by his infant son while they resided at the subject premises owned by Levy in this negligence action. Plaintiffs resided in the first floor apartment from the minor’s birth in April 2004 through vacatur after the Department of Health issued an abatement order in April 2006. Levy sought summary judgment dismissing the complaint arguing she had no notice of the alleged dangerous condition. The court noted deposition testimony and affidavits from tenants indicated the paint in the apartments was visibly peeling and Levy would enter the apartments monthly to collect rent and make repairs. It found there was evidence Levy knew there were children in the first floor apartment, noting Local Law 1 required the owner of a multiple dwelling to “remove or cover” paint containing hazardous levels of lead in an apartment containing children under seven years old. The court ruled Levy knew there was a child under seven living in the apartment and the apartment had a hazardous level of lead paint. It found the child suffered lead paint injuries from such hazardous levels, ruling Levy failed to meet her burden of showing she lacked constructive notice of the lead condition at the premises. Thus, dismissal was denied.
