SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

598 

CA 15-01383 

PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND SCUDDER, JJ. 

 

MARILYN RODRIGUES, MADELINE RODRIGUES 

AND ANIBAL RODRIGUES, PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

ROBERT LESSER, ET AL., DEFENDANTS, 

JOSEPH J. TIMPANO, AS ADMINISTRATOR OF THE 

ESTATE OF MARIO BEVIVINO, DECEASED, AND 

ANTONIA BEVIVINO, DEFENDANTS-RESPONDENTS. 

 

ATHARI & ASSOCIATES, LLC, NEW HARTFORD (ANDREW BOUGHRUM OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

BAILEY, KELLEHER & JOHNSON, P.C., ALBANY (SYMA AZAM OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oneida County (Patrick

F. MacRae, J.), entered May 7, 2015. The order, insofar as appealed

from, upon reargument, granted in part the motion for summary judgment

of decedent, Mario Bevivino, and defendant Antonia Bevivino and

dismissed the complaint against Mario Bevivino to the extent it

alleged claims for the period of August 1992 through September 15,

1992. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the motion is denied in

its entirety with respect to decedent, Mario Bevivino, and the

complaint is reinstated against defendant Joseph J. Timpano, as

administrator of decedent’s estate. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries they sustained as a result of their exposure to lead paint as

children. The exposure allegedly occurred when they resided at

various apartments rented by their mother, including one owned by

decedent, Mario Bevivino, who died during the pendency of this action,

and defendant Antonia Bevivino, his wife. The administrator of

decedent’s estate has been substituted as a defendant for decedent. 

Plaintiffs alleged that the Bevivinos were negligent in their

ownership and maintenance of the apartment and in their abatement of

the lead paint hazard. The Bevivinos moved for summary judgment

dismissing the complaint against them, and Supreme Court granted the

motion with respect to Antonia but denied it with respect to decedent. 

They subsequently moved for leave to reargue the motion and, upon

reargument, the court granted the motion in part with respect to
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CA 15-01383 

decedent, dismissing plaintiffs’ claims for the time period from the

date of first occupancy to the date on which decedent was notified by

the Oneida County Department of Health of a lead-paint hazard. We

agree with plaintiffs that the court erred, upon reargument, in

granting the motion in part with respect to decedent. 

“In order ‘[t]o establish that a landlord is liable for a leadpaint condition, a plaintiff must demonstrate that the landlord had

actual or constructive notice of, and a reasonable opportunity to

remedy, the hazardous condition’ ” (Wood v Giordano, 128 AD3d 1488,

1489). Where, as here, there is no evidence that the landlord had

actual notice, plaintiffs may establish that the landlord had

constructive notice of such condition by demonstrating that the

landlord “(1) retained a right of entry to the premises and assumed a

duty to make repairs, (2) knew that the apartment was constructed at a

time before lead-based interior paint was banned, (3) was aware that

paint was peeling on the premises, (4) knew of the hazards of leadbased paint to young children and (5) knew that a young child lived in

the apartment” (Chapman v Silber, 97 NY2d 9, 15). Here, it is

undisputed that decedent retained a right of entry and assumed a duty

to make repairs, but the remaining Chapman factors are in dispute. 

By submitting the deposition testimony of plaintiffs’ mother,

wherein she testified that she told decedent that she would be living

at the residence with her young children, decedent and Antonia raised

a triable issue of fact on the fifth Chapman factor. Similarly,

decedent’s own deposition testimony raised a triable issue of fact on

the second Chapman factor inasmuch as he testified that the subject

residence was old, that lead was taken out of gasoline in 1970, and he

“must have known” that laws regarding lead started to come out in the

1970s (see generally id. at 22). Even assuming, arguendo, that

decedent and Antonia met their initial burden on the third and fourth

Chapman factors, we conclude that plaintiffs raised triable issues of

fact by submitting “ ‘evidence from which it may be inferred that

[decedent] knew that paint was peeling on the premises’ . . . , and

‘evidence from which a jury could infer that [decedent] knew or should

have known of the dangers of lead paint to children’ ” (Bowman v

Zumpano, 132 AD3d 1357, 1358; see Manford v Wilber, 128 AD3d 1544,

1544-1545, lv dismissed 26 NY3d 1082). 

Finally, the present contentions concerning the negligent

abatement cause of action against decedent are not properly before us

in the absence of a cross appeal by decedent and Antonia (see Matter

of Sheldon v Jaroszynski, 142 AD3d 762, 762). 

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court