SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1358 

CA 13-00923 

PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

QUINN HEYWARD, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

BRUCE SHANNE AND VALERIE SHANNE, 

DEFENDANTS-RESPONDENTS.

ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DANIEL J. PAUTZ OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an amended order of the Supreme Court, Oneida County

(Samuel D. Hester, J.), entered April 15, 2013 in a personal injury

action. The amended order, inter alia, denied that part of the motion

of plaintiff for partial summary judgment. 

It is hereby ORDERED that said appeal from the amended order

insofar as it denied that part of the motion to preclude defendants

from presenting evidence of factors other than lead poisoning that may

have contributed to plaintiff’s injuries is dismissed and the amended

order is affirmed without costs. 

Memorandum: Plaintiff commenced this action seeking damages for

injuries he allegedly sustained as the result of his exposure to lead

paint in an apartment rented by his mother from defendants when he was

a child. Plaintiff moved for partial summary judgment “on the issues

of notice, negligence and substantial factor,” and for an order, inter

alia, taking judicial notice of certain statutes and regulations

regarding lead based paint; “precluding defendants’ attorneys and

hired experts from claiming socioeconomic, genetic, eugenic or

euthenics alternative and/or negating cause[s]”; and dismissing

defendants’ affirmative defenses, with the exception of the

affirmative defense seeking a collateral source offset under CPLR

4545. Supreme Court denied the motion except with respect to that

part of the first affirmative defense asserting lack of actual notice

as a result of the issuance of violations by health authorities, and

plaintiff appeals.

We note at the outset that the appeal from the order insofar as

it denied that part of the motion seeking to “preclud[e] defendants’

attorneys and hired experts from claiming socioeconomic, genetic,

eugenic or euthenics alternative and/or negating cause[s]” must be
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CA 13-00923 

dismissed. “ ‘[A]n evidentiary ruling, even when made in advance of

trial on motion papers constitutes, at best, an advisory opinion which

is neither appealable as of right nor by permission’ ” (Pagan v

Rafter, 107 AD3d 1505, 1507). 

Plaintiff further contends that the court erred in denying that

part of his motion seeking partial summary judgment “on the issues of

notice, negligence, and substantial factor.” We reject that

contention. “It is well settled that in order for a landlord to be

held liable for injuries resulting from a defective condition upon the

premises, the plaintiff must establish that the landlord had actual or

constructive notice of the condition for such a period of time that,

in the exercise of reasonable care, it should have been corrected”

(Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646; see Stokely v Wright,

111 AD3d 1382, 1382). Under the circumstances of this case, we

conclude that there is an issue of fact whether defendants had notice

of the dangerous lead paint condition in the subject apartment “for

such a period of time that, in the exercise of reasonable care, it

should have been corrected” (Juarez, 88 NY2d at 646; see Derr v

Fleming, 106 AD3d 1240, 1242; Woods v Alvarez, 300 AD2d 301, 302;

Perez v Ward, 271 AD2d 590, 591). With respect to constructive

notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d

9, 15) wrote that constructive notice of a hazardous, lead-based paint

condition may be established by proof “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 leadbased interior paint was banned, (3) was aware that paint was peeling

on the premises, (4) knew of the hazards of lead-based paint to young

children and (5) knew that a young child lived in the apartment.” 

Here, we conclude that there is an issue of fact with respect to the

third Chapman factor, i.e., whether defendants were aware that paint

was peeling on the premises (see generally id.; Watson v Priore, 104

AD3d 1304, 1305-1306, lv dismissed in part and denied in part 21 NY3d

1052). We also conclude that the court properly determined that there

is an issue of fact as to causation (see Robinson v Bartlett, 95 AD3d

1531, 1534-1535; Cunningham v Anderson, 85 AD3d 1370, 1374-1375, lv

dismissed in part and denied in part 17 NY3d 948). 

To the extent that plaintiff challenges the amended order insofar

as it denied without prejudice that part of the motion with respect to

judicial notice (see generally Ciesinski v Town of Aurora, 202 AD2d

984, 984), we conclude that the court properly denied that part of the

motion inasmuch as the statutes and regulations in question are

inapplicable at this juncture of the litigation (see Stover v

Robilotto, 277 AD2d 801, 802, affd 97 NY2d 9; Hamilton v Miller, 106

AD3d 1476, 1477-1478; Sykes v Roth, 101 AD3d 1673, 1674; Skerritt v

Bach, 23 AD3d 1080, 1081). We also conclude that the court properly

denied those parts of the motion with respect to the affirmative

defenses other than that part of the first affirmative defense

concerning actual notice, as previously noted herein. The court

properly concluded that defendants are entitled to assert that

plaintiff’s mother “affirmatively created or exacerbated the lead

paint conditions” at the apartment or elsewhere, such as at

plaintiff’s “secondary address” with his grandmother at the Howard
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CA 13-00923 

Avenue residence (M.F. v Delaney, 37 AD3d 1103, 1105), although she

was not liable for alleged negligent parental supervision (see id.;

see generally LaTorre v Genesee Mgt., 90 NY2d 576, 579). The court

further properly determined that defendants are entitled to assert

that “[p]laintiff’s conduct when he was a preteen and teenager . . .

may have constituted a failure to mitigate damages at a time when

plaintiff could be held legally responsible for his actions”

(Cunningham, 85 AD3d at 1372), although the affirmative defenses

alleging plaintiff’s culpable conduct, failure to mitigate damages and

assumption of risk will not apply prior to the time when he could be

held responsible for his actions (see id.; see also Watson, 104 AD3d

at 1306; Sykes, 101 AD3d at 1674). Likewise, we conclude that the

court properly determined that defendants may present evidence at

trial with respect to the affirmative defenses based on CPLR article

16 and alleging that plaintiff was exposed to lead paint at a location

other than the apartment rented from defendants by plaintiff’s mother,

and that any injury plaintiff suffered as a result of exposure at that

apartment is distinct from injury plaintiff suffered as a result of

exposure to lead paint elsewhere (see generally Cunningham, 85 AD3d at

1372).

SMITH, J.P., LINDLEY, SCONIERS, and WHALEN, JJ., concur; FAHEY, J.,

concurs in the following Memorandum: I respectfully concur in the

result reached by the majority, namely, the dismissal of the appeal

from the amended order insofar as it denied that part of the motion to

preclude defendants from presenting evidence of factors other than

lead poisoning that may have contributed to plaintiff’s injuries and

the affirmance of the amended order. I write separately, however, to

address the dismissal of part of the appeal. I agree with the

majority that “ ‘an evidentiary ruling, even when made in advance of

trial on motion papers constitutes, at best, an advisory opinion which

is neither appealable as of right nor by permission’ ” (Pagan v

Rafter, 107 AD3d 1505, 1507), and that the appeal from the amended

order insofar as it denied that part of the motion seeking to

“preclud[e] defendants’ attorneys and hired experts from claiming

socioeconomic, genetic, eugenic or euthenics alternative and/or

negating cause[s]” must be dismissed. I also note, however, that I am

troubled by the concept that an individual’s family history may be

relevant to establishing a baseline for the purpose of measuring

cognitive disability or delay. I acknowledge that an explanation for

cognitive problems may arise from one’s personal history, but as a

conceptual and general matter I cannot agree with the principle of the

eugenics defense that defendants propose here. To my mind, the family

of a plaintiff in a lead paint case does not put its medical history

and conditions at issue, and the attempt to establish biological

characteristics as a defense to diminished intelligence, i.e., a

eugenics argument, cannot be countenanced and is something I

categorically reject. 

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court