D.V. v 997 Hart St., LLC

2024 NY Slip Op 33166(U)

September 10, 2024

Supreme Court, Kings County

Docket Number: Index No. 526413/2019

Judge: Kerry J. Ward

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
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At an IAS Term, Part 9 of the Supreme Comt 

of the State of New York; held in and for the 

County of Kings, at the Courthouse, at 360 

Adams Street, Brooklyn, New York, on the 

101h day ofSeptember, 2024. 

PRESENT: 

HON. KERRY J. WARD, 

Justice. 

---· --------------------. ------------· ----. ------------· . ··------------. X 

D.V., an Infant by his Mother and Natural Guardian, 

SOLANGEL BAUTISTA, and SOLANGEL BAUTISTA, 

Individually, 

Plaintiffs, 

-against.,. 

·997 HART STREET, LLC; 

Defendant 

----- .---. ------------. ------- .- . -- .------ .. -- . --------------. ----- .--X 

The following c-filed papers read he,·ein: 

Notice of Motion/Order to Show Cause/ 

PetitionJCrbss Motion m1d 

Affidavits (Affinnations) Annexed. __________ _ 

Opposing Affidavits (Affirmations) __________ _ 

Affidavits/Affirmations in Reply __________ _ 

Plaintiffs Memorandum of Law __________ _ 

··oefendant's Memorandum of Law __________ _ 

Index No.: 526413/2019 

Mot. Seq. No. 4 

NYSCEF Doc Nos.: 

42-64 

69 71-76 

78-83 

65 

70 

Upon the fotegoing papers, in this action by the infant plaintiff D.V., 1 brought on 

his behalf by his mother and natural guardian, Sol angel Bautista (plaintiff), and by plaintiff, 

individually, .against defendant 997 Hart Stre.et, LLC (defendant), to recover damages for 

it1j1.1ries sustained due. to D.V.'s exposμre arid ingestion of lead~based paint, plaintiffs 

1 The child's name has been r~dacted in accordan.ce with 22 NYCRR 202.5 (e) (1) (iii). 

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move, under motion sequence number four, for an order granting them summary judgment 

on the issue of liability against defendant. 

Facts and Procedural Background 

The premises located at 997 Hart Street, Brooklyn, New York, is a two-family 

house, which was built in the 1930s (NYSCEF Doc No. 52} On June 1, 2018~ plaintiff, 

who was then pregnant, signed a lease with Nateram Ramkissoon (Ramkissoon), who was, 

atthattime, the owner and landlord ofthe premises, to rent apartment 2~ which consisted 

of the second floor ofthe premises (NYSCEF Doc No. 64). Ramkissoon occupied the first 

floor apartment at that time. Apartment 2 has three hGdrooms, a kitchen, and a bathroom, 

l)pon signing the lease, plaintiff moved into apartment 2 with her mother, D.V.'s father, 

artd her son, K:D., who was then two years old. Approximately, three months later, on 

September 15, 2018, D.V. was born and immediately became an additional resident of the 

apartment. 

Approximately two months after D.V. was born, Ramkissoon, by a deed dated 

December n, 2018, sold the premises to defendant (NYSCEF Doc No. 53). Plaintiff claims 

that defendant's property manager, Joanna Moloney (Moloney), came "[a] number of 

times" to see the apartment, and, thercfi:)rc, was aware that a childresided in the apartmeht 

(NYSCEF Doc No. 48, plaintiffs dep tr at 41) lirte25). 

After defendant purchased the property I Martha Garcia (Garcia} became the 

superintendent of the prernises. Garcia would go to the building twice a we.ck to take. out 

the garbage and clean the property (NYSCEF Doc No. 49, Mo!Qney's dep tr at 48-49). 

Plaintiff would inake any complaints she and her family had regarding the condition of the 

2. 

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apμrtment to Garcia, who· would inform Mql,:mey :ab.out these coinplaims (NYSCEF Doc . . 

No. 48, plaintiff,s dep. tr .at 46, lineS22-25~ at.4 7-, lines. l-9) 

According to plaintiff: the paint in the apartment was in "bad condition,'' and in 

February or March 2019, two or thtee months after defondantpurchasedthe apa1iment, she 

complained to Garcia thadhe. paint was chipping in the apartment (ic(. :;it-4_7, li_nes 19;.,22; 

at 48, _lin_es 4, 18-20 ). Plaintiff described the size· nfthe paint chips ;;i_s being_ .approximately 

one-half of an inch {id. at 51, line 10). 

On June 14, 2019, when D.V. was approximately nine months. cild, a lead test 

reveaied that he had an elevated- blood lead Ievel2 of 5 ug/dL 3 On June 26_;- 20..I 9, the New 

York City Department of l-lealth and Mental." Hygi<;!_ne Healthy l.f omes Pt.ogram/Lead 

Poisoning Prevention Progratn (the DOH) inspected ihe apartment for lyad-based paint 

pursuant to section 173.13 (d) (1) of the New York City Health Code. tbeinspectiort report 

stated that 30 ofthe 62 XRF readings retur11ed positive results for lead-bas.ed-paint hazards 

(NYSCEF Doc No. '55). 

According to Moloney, she learned about violations against the property in late Jurie 

or July 2019 via erriai] from an alert service subscribed to by defendant that alerted 

defe_ndarit to Violations: -as to missing window _.guar_ds and a missing sinoke detector. 

2EffectiveApril i4, 2019, Public Health Law§ 1370 (6) was amended to define an elevated lead level asmeaning "a. 

biood lead l_evel greater than or equal to five m icrograriis of lead pet dei;:i!iter of whci le blood or such i~wer qlood 

lead I eve! as may be established by the d epartin erit pursuant to rule or regu latioh. ,; Prior to th at a mend ment, an 

elevated lead level was defined as ineahing "a blood lead level greatetthan orequal to ten micrograms.of lead per 

deciliter ofwhcile blood or.such lower bJoo.d lead level. as niay be established by t_he department pursuant to rule 

or r~gulati1;:m;'! lO;NYCRR 67-1.L(e) similarly,_ a~:amended in 2Di9, provici"es tbat -,;[¢]!evated blood lead le_vel me;al")s 

a bfood iead com:ehtratjon eql!ai to orgreaterthari. five micrograms perdeciliter-ofwhole lllood." · 

;i Ug/dlstands for micrograms of lead per·decili.ter .of whole blood., 

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Moloney sent Garcia and her handyman Kenny to the building. When Garcia and Kenny 

went to plaintiffs apartment, they observed stamps on the walls that stated, "lead paint'' 

and. Garcia told Moloney about these' stamps (NYSCEF Doc No. 49, Moloney) s dep tr at 

107; lines 4-16; at 108, lirtes 7-8). On July 3, 2019, defendant sent a letter to plaintiff 

requesting access to the apartment so that they could have a lead abatement company look 

at the apartment and provide a proposal for the remediation (id. at 123, lines 3-5; at 126, 

lines 2-4) .. 

On July 26, 2019; the DOH issued an Order to Abate Nuisance to defendant 

{NYSCEF Doc No. 56). The Order to Abate Nuisance 1,,vas addressed to defendant and 

dated July 26, 2019 (id.). The Order to Abate Nuisance stated that a DOH inspection on 

June 26, 2019 determined that the dwelling unit contained lead-based paint thatwas peeling 

and/or located on one or more window friction or other surfaces that the DOH had 

determined to be a lead hazard because of its concentration; condition, location, and/or 

accessibility to children (id.). The Order to Abate Nuisance furtherstated that the leadbased paint hazard(s) identified in the Violation Report appended to this Order to Abate 

Nuisance constituted a nuisance pursuant to the Administrative Code of the City of New 

York § 17-142 (id.); The Ordet to Abate Nuisance directed defendant, pursuant to . . . 

Administrative Code §§ 17-113; 17-114, and 17-141 through 17-158, and New York City 

Health Code §§ 3.01, 3.07, 3.09, and 173.13 (d) {l), to remove, correct, and/or otherwise 

abate the lead-based paint violations noted inthc appended Violation R,eport in ac:cordance 

with the procedures prescribed in New York City Health Code § J 73,14 and to complete 

all abatement work within five days of receipt of thiS Order (id.). 

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Defendant didnot complete the abatement work within five days ofteceipt of the 

Order to Abate Nuisance. Moloney asserts that she was personally served with the Order 

to Abate N1.1isance on August l, 2019. 

By a letter dated .August I, 2019, Moloney requested that plaintiff contact her or 

Garcia immediately in order to schedule several access d:ites, both for an inspection and to 

complete the repairs necessary to remove the lead paint (NYSCEF Doc No. 49, August l_, 

2019 letter). Moloney did not take immediate action to have the abatement work 

performed. Mo Ion ey -did not remember if she started looking for a_ con tractor dt1ri ng August 

orSeptember2019 (NYSCEF DocNo. 49, Moloney's dep tr a_t 133, lines 12-16). Moloney 

obtained access to the apartment and walked through it with a lead-paint remediation 

contractor, but did not hire him because his proposal ·'came in a littlCbit high" (id. at 134, 

lines 15-I6). 

An August 9, 2019 letter to defendant(NYSCEF Doc No. 58)stated that review of 

records of the DOH Healthy Hornes Program indicated that defendant wasservecl with the 

Order of the Commissioner (if Health to abate lead-based paint and that pursuant to New 

York City Health Code § I 73'14 (C) (1) (A), defendant had not filed with the Lead 

Poisoning Prevention Program notification of starting lead abatement. This letter further 

provided that notification must be filed no less than 24 hours and no more than 96 hours 

before starting c1,bat~111ent, using the fori11 enclosed with the Order; and it enclosed another 

form for defendant's convenience _(id.). 

An August 21~ 2019 linal notice (NYSCEF Doc No; 59) was sent to defcndartt, 

which stated that an inspection by theDOH,sJ-Iealthy Homes Program and a review of its 

5. 

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records indicated that the lead paint hazards cited at the premises had not been abated or 

contested. It provided that in accordance with New York City Health Code § 173. lJ (d) 

( 4 ), the DOH was requesting the Department of Housing Preservation artd Development 

(HPD) to execute the Order. It set forth that the failure to comply with this OrderwUl result 

inplacement of a lien and may subject defendant to civil or criminal penalties. The DOH 

scheduled the work itself~ which was performed by HPD, and billed to defendant (NYSCEF 

Doc No. 49, Moloney's dep tr at 138, lines 3-25; at 139. line 2). 

On or about September 10, 20191 Moloney eventually hired BNH Lead Examiner;4 

a lead paint abatement contractor, to perform the abatement work {NYSCEF Doc No. 60; 

NYSCEF Doc No. 49, Moloney' s dep tr at l 34, lines 4-5; at 1371 lines I 6-22). However, 

by the time thatBNH Lead Examiner came to perform the work in plaintiffs' apartment on 

September 11, 20191 over six weeks from the issuance of the July 26, 2019 Order to Abate 

Nuisance, Moloney learned that the work had already been performed by HPD because 

defendanthad taken too l01tgto schedule the work (NYSCEF Doc No. 49,Moloney's dep 

tr at 138, line 25; at 139, line 2). 

lh addition to not timely abating the hazardous lead condition in accordance with 

the Order to Abate Nuisance, defendant did not offer to relocate plaintiff and her family, 

including D.V. As a result, D.V. remained in the apartment, which continued to contain 

lead, for over six more weeks while t}le lead paint hazard was not ameliorated ~nd during 

4 The Notification of Commencement of Lead Abatement/Rem ediatlon is dated .Septe mb¢r 10, 2019 and actually· 

lists Certified Environm1:ntal as the EPA Contrai:tcir, BMH Lead Examiner as the dust testing company, and .EnviroProbera.s the Laboratory for Sample Analysis (NYSCEF Doc No. 5b). 

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which time the lead abatement work was actively being performed by HPD, resulting in 

D.V.'s further exposure to the lead condition in the apartment. 

D.V.'s blood lead level incteased dra111atically when defendant failed to remediate 

the lead-based hazards within five days from July 26, 2019 as required by the Order to 

Abate .Nuisance. A September 26, 2019 lead test revealed that D .V. had an increased blood 

lead level of lO ug/dL, which was double the mnount found on June 14, 2019 (NYSCEF 

Doc, No. 54, DOH records; NYSCEF Doc No. 51, D.V.'s medical records). After the DOH 

had abated the dangerous lead paint condition, a November 4,2019 lead test recorded that 

D.V.'s blood lead level decreased to 8ug/dL, which was stillelevated (NYSCEF Doc No. 

51, D.V. 'smedical records). A May 28,2020 lead testrevealed that D. V.'s blood leadJevel 

haddecreased to 4 ug/dL (id.). A Septe111ber29, 2021 lead test showed that D.V.'s blood 

lead level was 2 ug/dL, and an October 24, 2022 lead test showed that D.V. 's blood lead 

level was only I ug/dL (id.). At some point in 2019, defendantlisted the building for sale. 

By a letter dated December 13, 2019 (NYSCEF Doc No. 49, December 13, 2019 

letter), Moloney informed the DOH that she had taken steps to coordinate the removal of 

lead paint dust described in the Order to Abate Nuisance. Specifically, Moloney stated that 

cleaning wa.s: conducted of all surfaces referenced with a HEP A vacuum, followed by 

washing with a detergent solution, and a final 1-IEP A vacuuming on December 10, 2019. 

In addition, Moloney informed the DOH that a third~party lead-based paint inspector was 

hired in order to collect dust samples, which was completed on December 11, 2019. 

Moloney enc.losed a report ·providecl to her by Envfro-test lnc., who conducted the dust 

wipe. samplilig. 

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Bya letter dated January 10, 2020 (NYSC:EF Doc No. 49, January 10; 2020 letter), 

. . 

the DOH informed Moloney that the violations in the Commissioner'·s Order to Abate 

Nuisance were corrected, and that acceptable dust wipe clearance test results were 

received. According to plaintiff~ she and her family vacated the apartmentin September 

2019 (NYSCEFDoc No. 47 at paragraph 5) or in 2020 (NYSCEF Doc NcJ. 48, plaintiffs 

deptr at 11, lines 19-20), Defendant, on the other hand, claims that plaintiff and her family 

vacated the apartment in September 2020 (NYSCEF Doc No. 69 at paragraph 16) ot 

February 2021 (NYSCEF Doc No. 49, Moloney· s dep tr at 195, I ine 6). 

On December 4; 2019,. plaintiffs filed the instantaction against defendant (NYSCEF 

Doc No. I). Plaintiffs' complaint alleges claims of negligence and violation of the 

Administrative Code of the City of New York, and a loss uf services claim on behalf of 

plaintiff; On May 19, 2020, defendant filed an answer to plaintiffs' complaint (NYSCEF 

Doc No. 4). On November 29, 2023, plaintiffs filed their instant motion, under motion 

sequence number four (NYSCEFDoc No. 42). Defendant has submitted opposition papers, 

and plaintiffs have submitted reply papers. All discovery has been completed, including 

the depositions- ofplaintiffand Moloney. Plaintiffs filedtheir note of issue on Match 7, 

2024(NYSCEFDoc No. 67}. 

Discussion 

Local Law l, applicable in the City of New York, ''requires. that the owner of a 

multiple dwelling remove or cover paint containing specified hazardous levels of lead in 

any apartment in which a child six years of age or younger tesidcs" (Shafi v Motta, 73 

AD3d 729, 729 [2d Dept 201 O]; see also Administrative Code of City of NY § 27-2056.3, 

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§ 27~2056.18; Juarezv Wavecrest Mgt. Team, 88 NY2d 628, 641'"642 [1996]; LMvNew 

York City Haus. Auth, l71AD3d 1154, 1154~U55 [2dDept 2019]; Turner v Davis, 105 

AD3d 946, 947 (2d Dept 2013}; O'Neal v New York City Haus: Auth, 4 AD3d 348_, 349 

[2d Dept 2004]). "'ViolationofLocal Law 1, however, does not resultin absolute liability 

for injuries causedby exposure to lead'; (Shafi, 73 AD3d at 729; see also Juarez, 88 NY2d 

at 643}. "Rather, a plaintiff must establish that the landlord had actual or constructive notice 

of the condition for a period of tiine such_ that, in the ·exercise of reasonable care, the 

condition should have been remedied'; (Shafi, 73 AD3d at 729-730; see also Juarez; 88 

NY2d at 646). 

Administrative Code § 27-2056;5 (a), part ofLocal Law 1, provides that "[i]n any 

multiple dwelling erected prior to J anμary 1, 1960, it shall be presumed that the paint or 

other similar surface-coating material in any dwelling unit where a child ofapplicable age 

resides or in the com111onareas is lead-based paint"·(emphasis added;-see Juarez, 88 NY2d 

at 642; Turner, 105 AD3d·at 947).Applyingthis presumption,-thelandlord will be charged 

with constructive notice of any lead paint hazard within an apartment that he or she knows 

is occupied bya child of the specified age (Juarez, 88 NY2d at 647; Hill v Larae House, 

Inc., 135 AD3d 659,659 [h;tDept 2016]; Turner, 105 AD3d at 947; Shafi, 73 AD3d 729, 

729"' 730 [2d Dept 2010]; Jirninez v City of New York, 7 AD3d 268, 269 (1st Dept 2004]; 

Chadwick v Sabin, 304 AD2d 603, 603-604 [2d Dept 2003]; Woolfolk v New York City 

Haus. Aidh., '.263 AD2d 355, 355-356 [1st Dept 19991, 1vden.ied4 NY3d 711 [2005]; Rivas 

v 1340 Hudson Realty Corp,, 234 AD2d 132, 135 [1st Dept 1996]; Colon vNew YorkCity 

Hous. Auth, 233 AD2d 123, 123 [1st Dept 1996]}. Thus, under Local Law 1, ''whether the 

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landlord had actual notice of peeling paint or other indications of a [lead paint] hazard are 

immaterhtl" (Woolfalk, 263 AD2d at356; see also Hill, 135 AD3d at 659). 

Local Law 29 of 2020, which was approved on February 11, 2020 and becaine 

effective on February 10, 2021, n1ade LocalLaw l applicable to owners ofone- and two,. 

family rental properties. Specifically, Administrative Code § 27-2056,l provides as 

follows: 

"For the purposes of this article; the tenn 'multiple dwelling' includes a 

private dwelling where· at least one dwelling unit within such dwelling is 

occupied bY persons other than the owner of such dwelling or a member of 

such owner's family, provided, however, that the provisions of this article, 

other than section 27-2056.14, shall not apply to a dwelling unit that is 

occupied by such owner or a member of such owner's family."· 

At the time that D. V. was living at the premi-?es and lead paintviolations existed in 

2019, Administrative Code§ 2T-2056.l was not yet in effect. Rather, a two".fantily house 

was not considered to be a n1ultiple dwelling and, therefore, Local Law I was·inapplicable 

to it (see Ne tra l v L;ppo ld, 3 04 A 02d 491, 4 9 2 [ 1 st Dept 2 00 3]). N ote2 to Administrative 

Code § 27-2056.l states that "[t]his local law takes effect 1 year after it becomes law, 

except the. commissioner of housing preservation and development may take s11ch actions 

as are necessary for implementation, including the promulgation of rules, before such 

effective date.';5 Thus, Administrative Code§ 27-2056.ltook effect on February iO, 2021. 

5 ,;HPD expanded its enforcement work through the implementation oflocal Law 29 of2020, which made Local 

Law 1 applicable to owners.of one- and two-famiiy rental pr9perties'' 

( https ://www: nyc:gov /assets/h pd/ down loads/pdfs/services/loca!-law-1-report-fy2021. pdf at l). Beginning on July 

1, 2020, prior to when Local Law 29 of 2020 went into effect on February 10, 2021, "HPD began to enforce Local 

Law 1 requirements regarding lead-based paint hazards in one- ahd two-family homes pursuant to Local Law 29 of 

2020" (id. at 4). HPD, in partnership with LeadFreeNYC, launched the "Get Ahead of Lead" campaign in November 

2019 for multiple dwelling properties and continued it in early 202d with a-particular focus on one- and two-family 

properties" (id. at 2). "This outreach and education campaign reminded.property owners oftheirobligation.under 

the law to proactive!y address lead-based paint hazards" (id.). "The campaign ran in eight languages on bus 

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Plaintiffs argue-that the-.court should apply this: provision retroactively so that Local 

Law l is .applicable to the premises. and defendant. The court. notes the remedial purpose 

of this proyision. Furtlwrmore_, in Mttt(e.r of Regina Met NJ, Co., LLC v New York State Div. 

of Haus. & Community Renewal (35 NY3d 332, 378 [2020], rearg denied 35 NY3d 1079 

[2020].artd 3:5 NY3d- .1081[2.020]), the Court of Appeals noted.that "'where retroactivity is 

·integral to full achievement of the fundamental pqrpo&e of the· )~gishition, a rational basis 

for the. retroactive effect may be readily identifiable.'' 

However, the g·eneral rule is that"""an arhend1nent will have prospective· appli"cation 

only~. and will have no retroactive effect, unless its language dearly indicates that it·$hall 

receive-. .a contrary interpretati.ori" {McKinnets Cons Laws of.NY, Book l, Statutes § 52 

[ footnotes orriitted]). Since Administrative Code § 2 7-2 0 5 6. I . provides a specific effective 

date and its effective date was postponed by one year .frmri the· time·:of its enactment_, this 

militates- a,gainst refro,activity- (.~ee: Matter of Elhatmon Who_iesple Nitrsery, Inc. 

[Commissioner of Labor]. 225 AD.3d 948; 950 [3d Dept 2024]). Furthermorec since 

Administrative Code§ 27-2056.1 was .. not in effect until February 10, 202i. it would be 

fundamentally unfair-to hold defendant liable under this provision since it did not exjst and 

Local Law 1 was inapp.licable_·.to defendant at the time ofD.V. 's lead ·poisoning. Thu~_, the 

court finds that Adrninistrative Co<;le § 27-2056. l is not retroactive and Local Law 1 does 

not apply in this case (see O'Connor v Weiss, 18 Misc 3d 1124[A], 200"8 NY Slip Op 

50.19l[U],_ *7 [Sup-Ct, Kings Couhty2008]). 

shelters, subway ads, storefronts, newspapers, and social media ih 19 zip codes with high rates of children with 

elevated blood. lead levels (id.). · 

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While plaintiffs are not entitled to the presumption of Local Law l, that is not the 

end ofthe inquiry. Where certain requisites are satisfied; a landlord still may be liable for 

negligence under traditional common-law principles. Under New York common law, a 

landowner-has a duty to maintain his or her premises in a reasonably safe condition (see 

Basso v Miller, 40 NY2d 233,241 [1976J; Greene v Mullen, 127 AJ)3d 696,697 [2d Dept 

20151). "[I]n order for a landlord to be held liable forinjuries 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, 88 NY2d at 646; see also Greene, 

127 AD3d at 697; Alonso v Coutinho Enters., LLC, 35 AD3d 641, 641 [2d Dept2006]). 

"In order '[t]o establish that a l,rndlord is liable for a lead-paint condition, a plaintiff 

must demonstrate that the landlotd had actual or constructive notice of, and a reasonable 

opportunity to remedy, the hazardous condition''' (Wood v Giordano, 128 AD3d 1488; 

1489 [4th Dept 2015], quoting Rodriguez v Trakansook, 67 AD3d 768, 768-76_9 [2d Dept 

2009]; see alsoAlonso, 35 AD3dat 641). Where there is no evidence that the landlord had 

actual notice of the lead paint hazardous condition, plaintiffs may establish that the landlord 

had constructive notice of such condition by demonstrating that the landlord '·(l) retained 

a right of entry to the pteinises 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 lead-based paint 

to young children, and (5) knew thata young child lived in the apartment" (Chapman v 

Silber; 97 NY2d 9, 15 [2001]; see also Rodrigues v Lesser, 150 AD3d 1686; 1687 [4th 

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Dept 2017]; Wood, 128 AI>3dat 1489; Greene, 127 AD3d at 697; Clark v Davis, 52 AD3d 

639, 640 [2d Dept 2008]). Thes~ five factors set forth in the Court of Appeals decision of 

Chapman remainthebasis for determining whether a landlord had constructive notice ofa 

hazardouslead..;based paint condition and thus may be held liable (see John v Cassidy, 151 

AD3d 1598, 1599 [4th Dept2017], rearg denied 153 AD3d 1676 [4thDept2017]}. 

As to the first Chapman factor, defe11dant, in the lease to plaintiff, retained a right 

of entry to the premises and assumed a duty to make repairs. ''[A] building owner may be 

charged with constructive notice of defects in those parts of the building into which it has 

authority to enter;'(Juarez, 88 NY2d at 647). Here, the lease specifically stated that 

'"Landlord will repair the plumbing, heating and electrical systems" (NYSCEF Doc No. 64, 

lease,, 8). The lease also stated: 

"Landlord may enter the Apartment at reasonable hours to: repair, inspect, 

exterminate, install or work on master antennas or other· systems or 

equipment artd perform other work that Landlord decides is necessary or 

desirable. At reastmable hours Landlord may show theApartmentto possible. 

buyers, lenders, or tenants of the entire Building or land. At reasonable hours 

Landlord may show the Apartment to possible or new tenants during the last 

4 months of the Term. Entry by Landlordmust be on reasonable notice except 

in emergency'' (id at 111 ). 

Indeed, plaintiff testified,.at her deposition, that defenda,nt's Superintendent, Garcia, 

entered the premises multiple times to fix other problems inside the apartment, including 

leaks (NYSCEF Doc No. 48, plaintiff's dep tr at 45, lines 10-25). Plaintiff also attested that 

''at leastortcea week, from December20J·g to June 2O19,.asuperintendcmt.named [Garcia], 

who spoke Spanish, came to [her] apartment in response to complaints that [she] made, or 

when she came to take out the garbage, artd c:lean the hallway ai1d stairway inside the 

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building~; (NYSCEF Doc No. 47, plaintiff's affidavit). Plaintiff farther asserted thatGarcia 

"came to the apartmeneto look at a.water lea}( ~otning from the ceiling, and~ water leak in 

the bathroom" (id.). 

Defendant argues that while the lease gave it a right of entry, there is no evidence 

·-that it had the ahility to.enter plaintifi:"s.apartment by a key. Defendant:notes __ that Moloney 

testified that she did not remember if she had a key to plaintiffs' apartinent Qr if the prior 

landlord gave her keys_ to plaintiffs' apartment (NYSCEF Doc No, 49; Mofohey's dep tr at 

79, li11e·s 17 .;24 ). Defendant al-so assorts that nothing fri plaintitr s deposition testimony or 

affidavit indicates that Garcia let herself into plaint1 ffs' apartment. 

Defendanf s argument is unavailing. There is no affirmative testimony by defendant 

that it did not have a key to plaintiffs' apartment. Moloney merely testified that ~he did not 

remember if defendant rctainedkeys to the apartment (id. at 79; line 20), Moloney admitted 

that the lease·_ required the tenant to provid·e keys to the landlord, and that defendant 

received keys from the prior landlord· at the closing of the sale of the property (Which 

consisted of two apartments) (id. at 80, iines 2-8). Moloney merely claimed that she qid 

·rtot recall wiiether the keys to.-p1aintiffs~ apartment were contailled within those keys (id: 

at80. lines 2-14). However, Mokm~y.ad111itted that-Oar'ciaand Kenny were ableto enter 

plaintiffs' apartment, at the time ihat they observed stamps on the walis that stated; ''lead 

paint" (NYSCEF Doc No. 49, Moloney's dep tr at 107, lines 4-16; at 108, lines 7-8). 

Moloney also testified that she and the first lead abatement·contractor (w.h:o was not hifed) 

saw the lead paint stamps while in plaintiffs apartment, and that th_ere was l)llly luteroo_m 

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that had been locked and could not he access·ed (id: at 193, lines 2-7). This shows that 

·d.efendant had access· to· the area where: the lead .paint condition ·existed and was_ stmhped. 

As to Garcia, Moloney testified that s:he did_ not recall Garcia or her handyman, 

Kenny, having any trouble gettinginto the apartment to fix the light fixtures (id: at 187, 

lines 8--11 ). Moloney also testified tha,t she did tmt know of any record -of Garcia or Kenny 

havingaily problems with respect to putting in_ the light.fixtures,. the window guards,_ or the 

smoke detectors (id. at 187, lines 12~ 16) . 

. Moloney testified that after she learned ofthe lead paint condition, she sent the July 

andA1.1gust2019 letters to pl_aintiffto obtain access to. remediate. it(id:· at 183, .. lines 21-24) . 

. Moloney also testified that she asked plaintiffs cousin to assist in obtaining ac9css: to 

remediate the leadpaint condition, but did not remember the date on which she niade this 

reque·st(id at 184, lines 17-25; at 186, lines 7-l l). Moloney additionally testified that she 

did not remember how ·1ong she: had ,a problem with. gaining access' t_o the apartrnent or 

wheth~r it was more or less than a week (id. at 19 l~ lines 7-14 ). :Moloney did n.ot remember 

if she ever knocked on plain ti rr s door to gain access{ld: at 186, lines 12-J 4-). As previously 

rioted; Moloney admits that she had -access at the time that sh~ walked thtoμgh the 

apartment with the fir.st lead paint remediation. vendor who she did not hire (id. at 194, _ lines 

3-6). 

Moloney never testified that she was deriied access or unable to gain access to the 

preinises. There is ·uo affidavit submitted by-Moloney or Garcia, and there is no deposition 

testimony by Garcia, which addre:sses access to the·-apartment or defendanf s right ofentry. 

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Thus,there is nothing to refute that defendant had the right of entry as expressly provided . . . 

in the lease, and the first Chapman.factor is satisfied. 

As to the second Chapman factor that defendant knew that the apartment was 

constructed at a time before lead--:based interior paint was banned, Moloney and defondant, 

as sophisticated real estate investors; must have considered the age of the property when 

purchasing it. The certified property card (NYSCEF Doc No. 52) discloses that the 

premises were occupied in the 1930s, which is long before 1960, when New York City 

banned the·use of lead-based paint oh interior building surfaces (see Juarez, 88 NY2d at 

64l). Moreover, defendant does not dispute that it was aware of the age of the premises. 

Thus, this second Chapman factor is met. 

As to the third Chapman factor~ i.e., that defendant was aware that paint was peeling 

on the premises, plaintiff testified, at her deposition, that she told Garcia ''[t]hat the painting 

was chipped ·"' - that the paint was chipping and that it needed to be painted, again'' 

(NYSCEF Doc No. 48, plaintiffs dep tr at 4 7, lines 18~22). Plaintiff also attested, in her 

sworn affidavit, that "[o_Jne thne when [she]saw [Garcia] in the building in the beginning 

of 2019, [she] complained to her that the paint in the apartment was chipping, that it was 

in bad condition, and it was in need of repair, but nothing was ever done'.;, 

Plaintiff explained that whenever she noticed the paint chips, she would sweep them 

up and throw them away (NYSCEF Doc No. 48, plaintiff's dep tr at 51, lines 1s.:21). 

Plaintiff specifically testified that paint chips were "[ a]ll over the place. It was everywhere. 

On the door, on the door to the bathroom, on the <ioor to the closet, in the windows, the 

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windows of the. kitchen. Everywhere" (id. at 52; lines 20-24). Plahitiff witnessed D.V. 

·eating.paint chips a number oftinies_·(ic(; at54_, lines 2~2-1). 

Defendant argues that plaintiff has failed to establish that it knew that the apartment 

contained defective or peeling paint Moloney, at her deposition, deni"ed that pla'intiff made 

,coinplaints about chip.ping paint or made requests for repair _prior to the issuance of the 

lead paint viol~tions (NYSCEF Doc No .. 49, Moloney'.$ dep·. tr at 95, lines 3-9.). Moloney 

testified, at her deposition, thatshe did, not know the condition of the paint in the- apartment 

.in January 20l9 (id. at 198, lines 7-9). Moioney also testified that when she looked at the 

areas ::.;tamped-as having lead._paint, she,did not·-rememh¢r if the paint was peeling inthose 

areas (id. at 142, lines 22-24) .. Moloney, howcvt!r,. when confronted wHh the DOH's 

notation on August 16, '.2019 that work was riot started at the time of its inspection of all 

areas cited in the Order to Abate Nuis·ance, as evidenced by. chipping and peeling pa:int, 

and asked when it says chi ppiμg arid peeling_ paint re1nained, · .if fr was.-'~true in fact ... that 

there was chipping and _peeling paint inside that apartment," she. responded, ''l suppose so" 

(id. at 159; iines 2,-14). 

Thus, ·Moloney hm:i conceded that at l_east frmi1 _the time that .the DOH issued the 

violations, she was aware pf chipping a_nd pee.ling paint Defendant also never contested 

the existence of lead paint violations, as cited ih the Order to Abate- Nuisance, dated July 

26, 2019. Moreover, the lead paint violations were evident from the lead paint stamps .in 

the apartment, whic;h were--_discov~red by-·.defendani'-~ worl<:_ers and-ofwbichMoioney was 

infonned and then witnessed herself when she walked around the apartment (id at l 93~ 

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lines 18-21). Thus,the.third Chapmqn .tactor-is-satisfied.from at least the time ofthe Order 

toAb.ate Nuisance, w,hich Moloney stated, she personall.y r~c~jved on.Augu·st 1, 201_9. 

_As to the; fourth. Chapman factor,i .e.,,_ that defendant knew of the hazards of leadbased paintto young children, :Moloney adhlitted that as of2"0l 8, she was aware that there 

was a lead paint notice that had, to be given to tenants who were moving into an .apart1nent, 

and that a lead paint riderhad_to be signed stating that the tenants received t_h(} lead.paint 

notice regarding lead p~int and stating 'that they understood what was in the rtotice6 

(NYSCEF Doc No. 49, :Moloney's dep trat 57,_lines 16~25). Moloney further admitted-that 

·she k_p.ew th~t. chipping· lead paint was a potential health hazard to small children ifih~y eat 

.or ingestthe,paint in some form (id. at 59, lines 4-25; at 60~ lines 2-5; at 66, lines 2-10). 

Moloney testified that the lead paint disclost1re fonn and the patnphlet that accompanies it . . 

:"indicated the type of harm that-can happeri to a child if he or she ingested. lead and that 

"'may.be"·-she read the t;o.rm and pamphlet (id. at 61, lines 2-18}. In addition, when Molo·ney 

· was asked at h_er deposit ion whether she knew from the time that she received the notice of 

violation thatthere were lead-based hazards in.the aparti:nent and that theywere dangerous 

to children, she. responded ••yes_" (id. at 189, Jines 6'- 10.).-Thu&.,. the fourth Chcqirndn factor 

i_s satisfied. 

6 Defendant doe·s not claim to have·provid~d-this notic_e.to plaintiff: Plaintiff, in her:affidavit, ~ttests-that at-no time 

did the prior landlord or defendant·have her·,sign a N·ew York City Lead Paint Notice,which wo_uld have:r~quired 

that.she notify them wbether a child under the age of seven years resided ih the apartment, or a Window Guard 

Nqth:;~, Which IAIOuld h,11ve r~quiredthat she-identify whether a child 10 years of age or young_er lived in the 

apartment (_NVSCEF Doc No. 47). H_owever,-a.t. thetlme that plai"~tiff moved:iri.to the apartment and at the--tirriethat 

she renewed her lease with def!:!ndant, Lo.cal Law i, which mandates thatthis lead pa.int notice be glven1 did not 

apply to two::family homes. 

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As to the fifth Chapman factor that defendant knew that a young child lived in the 

apartment, plaintiff testified that Moloney came "[aJ number oftimes" to sec the apartment 

(NYSCEF Doc No.48, plaintiffs dep tr at 4 l, lines 23-25), Plaintiff, in her sworn affidavit, 

also attests that befote defendant purchased the building, Moloney carne in to look at the 

apartment, and when she was present in theapartment,b.V., who was then a baby, as well 

as her other child, K.V., who was: then three years old, were present (NYSCEF Doc No. 

47); Plaintiff further attests that Moloney saw her two children, and also saw the cribs, 

highchairs, and baby toys that Were in the apartment (id). ln addition, plaintiff attests that 

after defendant purchased the building and before she learned that D.V. had been lead 

poisoned, Moloney was in her apartment at least lO to 12 times andthat she was told that 

the n~ason for Moloney 's presence was that defendant was getting ready to se:ll the building 

and was showing it to prospective buyets, even though defendant had just purchased it 

(id.). Plaintiff explained that "[e]ve;ry time [Moloney] came to [her] apartment, [her] two 

children, who were three (3) years of age or younger, were present in the apartment" (id.). 

Plaintiff asserts that additional notice of a child present in the apartment was 

provided by aJune 2019 letter to Moloney from her cousin, Ernesto Hodgson, who, when 

writing on behalf of plaintiffs family regarding a lease modification, stated that the 

previous landlord had increased the rent when they found out plaintiff was pregnant 

(NYSCEF Doc No. 63J. Molortey admitted that she· remembered receiving this letter 

(NYSCEF Doc No. 49, Moloney's dep tr -at i20, lines l i ~23). Plaintiff asserts that notice 

of a child under six years old can al~o be imputed from defendant's superintendent; Garcia, 

wh a. went to the apartrn ent to fix a c<!ili ng leak and a bathroom leak and wou Id tell Mo lon.ey 

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about the -frunily's coinplaints regarding the apartment (NYSCEF Doc No. 48, plaintiff's 

dep tr at 45, lines 8-2.5-;_ -at 4 7, lines 4-9), 

Moloney admitted that she went for a tour of the property, including both 

apartments,_prior to defondanf s purchase of it (NYSCEF Doc No. 49, Moloney' s dep tr at 

34, Jines U-14), Moloney, howev¢.t. t~stified thai she only briefly walked into the 

.apartment prio_r to de.fendan.t's. purchase ofit (id. at 35, lines 2-13). Moloney further 

testified that she did not reca:li who. was in the apartment _and did not remember if she 

discussed who occupied the apartment -in the Fall of 2018 (id, -at 51, lines 2-20). Moloney 

claimed that she- was unpertain as to whether she knew that.there were children liying in 

plaintiffs apartin~nt prior to the DOH inspection (NYSCEF Doc No. 70., defendant's 

Memorandum of Law at paragraph 28). Moloney stated that she was unable to. say one way 

·or the:.other whether she was aware that there, were small children living in the apartment 

·-in 20r8 or January 2019 (id. at 113,lines 19-25; at 114, line$ 2~5). Moloney tesHfiecl that 

she did not remember if she k,new that there were small children living there (id, at 111, 

lines 23~25; at 112, line2). 

Moloney _admitted that she was aware ofthe children~s presence by August l; 2019 

(id .. at 145, lines 7-1-0). This admisslon was consistent with the fact th<1t defendant.. had 

window guards irtstailed to prevent small children from falling out .of the apartment's 

wind·ows (id. at 112, lines 8-25). Moloney testified that ·she:saw two small :children in the 

apa1-tme11t. when she wcrtt there witl1 the fifat lead-paint remedia,tioh vendor (id. at 177_,.1 

lines I ff-24; at 178, lines 13~22). M.oloney also acknowledged thatthe lead paint violation 

stated that there were small children in the apartment (id. at 145, Jines 12~ 17). Thus, the 

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fifth Chapman factor has been satisfied at least -as of the time that defendant -received" the 

.Order to Abate Nuisance. 

While triable issues of fact exist as to whether plaintiffs satisfied the. thfrd and fifth 

Chapman factors prior to D.V.~s lead po"isoning on June 14, 2"019.(whenhe had an elevated 

blood level of 5 ·ug/dL )-, iher.e. can be· .no dispute; that these fa,ctors werf;: satisfied as o.f the 

time when the Order to Abate Nui$a:ricie_was issued on J11ly 26~. 2019. Indeed~ as of the date 

that defendantreceived the Order to Abate Nuisance~ it had actual notice both that a. child 

under the requisite age was .residing in the apartment ·and that the apartment contained 

hazardous I eve.ls of lead (see Juarez, ·-8·8 NY2d at 647;.648; Clatk, 52 AD3d at 640} 

Once a landlord _is found to have had the requis_ite notice ofth.e residency ofa: child 

under the age of six and that a lead paint hazard exists irt the apartment, the landlord's 

liability then turns oh the reasonableness ofits· e.flbrts to ameliorate the ·existing· lead paint 

condition (see Juarez, 88 NY2d at 644; Clark;- 52 AD3 d .at 640; lbert v T uscan.Ass_oc., .Inc., 

37 AD3d 194~ 196 [1st Dept 2007]). ln_ addit_ion, the plaintiff must deinonstrate that the . . 

. . 

child's lead poisoning is causally copnected to the lead paint condition in the apartment 

(see Jt,arez, 8_8. NY2d at 648) .. 

Here, there is no- issue- as to the reasonableness of defendant's. abatement efforts 

after receiving actual notice of the lead paint condition since it made. none {see Jocelyn C. 

v SoundviewApis. Realty, LLC, 154.AD3d.573, 573 [1st D~pt2017]).Defendant-only went 

to .the apartn1ent with a lead abatement .contractor which it ·4id not hire. Moloney admitted. 

thatHPD h_ad to perfqrm the abatement work becauSeidefendaht "took too long'~ t.0 start it I . 

(NYSCEF Doc No. 49, Molonefsdeptrat 138; Hnes23-25). 

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During the time period after defendant had actual notice, D.V. continued to be 

exposed to the lead paint condition and his blood lead level dramatically increased to 10 

ug/dL, double the blood lead level that he had on June 14; 2019, as shown by his blood 

lead test on September 26, 2019, shortly after HPD performed the remediation work due 

to defendant's failure to commence any abatement work (NYSCEF Doc No. 59). Thus, 

defendant's failure to timely temediate the lead paint condition resulted in D.V. 's fmiher 

exposure to. lead paint (see Galicia v Ramos, 303. AD2d 63 l, 632-633 [2d Dept 2003]; 

Woods v Alvarez~ 300 AD2d 301, 302 [2d Dept 2002]; Bellany v Siegel, 288 AD2d 411.. 

412 [2d Dept 2001 ]); The court, therefore, finds that defendant may be held Hable for 

D.V.'s injuries sustained after the time thatit; by the Notice to Abate Nuisance, had actual 

notice of the lead paint condition in the apartment, tuthe extent that such injuries are shown 

to be proximately causedbysuch lead paint condition. 

Plaintiffs contend that lead creates an indivisible brain injury, and, as a result, 

defendant must be held liable for all injuries caused by D.V. 's lead poisoning, both before 

it had· actual notice of the lead paint condition and after it had such actual notice. It has 

been held that where the record is devoid of any proof which would render a plaintitrs 

injuries "divisible'' and enable the jury to appmiion damages to separate periods of 

culpability and provide the jury a nonspeculative basis upon whic;h to make a practical 

division of a plaintiffs injuries, a defendant may be held liable for all such injuries, Le'. 1 

prenotice and post;.notice periods ofexposure to kad paint, without apportiomnent (see La . . 

Fountaine v Franzese, 282 AD2d 935, 918[3d Dept 2001J; Zandre T. v Beulah Church of 

God in Christ Jesus, Inc., 24 Misc 3d 1234[A], 2009 NY Slip Op 51748[UJ, *5 [Sup Ct, 

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Kings County 2009]). Here, defendant has not pres·ented any proof which would-render 

D..V.'$. injuries ~'divisible" and enable the apportionment of damages with respect to 

prenotice and post-notice periodsofexposureto lead paint. Indeed, D.V. ha4 Substantially 

higher blood· lead levels post-notice tha_n h¢•had. prenotice. Thus, due to the indiv.isibility 

of any .injuries. susfaine_d by D.V. due tb his lead ·paint exp·osure, defendant must be held 

responsible for all injuries caused :by lead poisoning itt the apartment (see Tejeda v 116 W 

Co_rp.) 293 AD2d 261, 261 [ lstDept2002], Iv denied 99 NY2d 502 [2002.];La Foimtaine~ 

282 AD2d at 9J8). 

}fowever, as to causation, a plaintiff moving for smnmaryjudgment mustestablish 

"a legally sufficient causal nexus behveen the alleged breach and the claimed damages" 

( Chapman, 97 NY2d at 22). Plain ti ff has set forth D; V .' s cJaimed injuries in their bill of 

p_atticulars (NYSCEF Doc No. 46). Piaintiff has submitted th~ report .of Daniel Adler, 

M.D., Which is·:affirmed pursuant to CJ.>LR 210t>...(NYSCEF Do.c No. 50).·Dr'. Adler, who 

specializes in pediatric neurology, saw D.V. in. a pediatric neurological consultation on 

January 12, 2023. Dr. Adler's clinical impressions were lead poisoning, low muscle tone 

with fine and gross motor incoordination, dysarthria {a speech disorder caused by inuscle 

weakness)~ and .. cognitive impairment. Dr. Adler sets. forth that D.V. has low tone and .is 

poorly coordinated, and .that his speech ·is poorly artic.ulated, Dr. Adler States that these 

developmental variations are highly correlated with learnihg chatlenges in the future. Dr. 

_Adll;!r further ~tates that wnile lead poisoning does not cause these neurodevelopmental 

d_isabilitie_s, lead poisonii1g will negatively affect the therapies that children like D.V. 

require ih order to inake developmental progress. Dr. Adler opines,_ to a reasonable degree 

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of medical certainty, that if D.V. had not been lead poisoned, his overall level ofintellectual 

and future academic functioning would have been higher. Dr. Adler further opines, to a 

reasonable degree of medical certainty, that D. V. 's exposure to lead paint in the apartment 

qwned by defendant was the substantive cause ofD.V.'s cognitive and intellectual deficits. 

Dr. Adler states that hereviewed therecords of the New York City Department of 

Health and Menta1 Hygiene; the records of the Wycoff Heights Medical Center, the records. 

of Allergy and Asthma Care of Brooklyn, the recordsofNew York Presbyterian ffospital,. 

the laboratory test results from LabCorp, and the records of Ridgewood Pediatrics. De 

Adler also states that he reviewed the expert teport ofVicki Sudhalter, Ph.D., dated January 

7, 2023. Dr. Adler notes that Dr. Vicki Sudhalter, who is a psychologist, performed a 

neuropsychological evaluation on D.V., reviewed D.V.'s medical records, and 

administered numerous tests on D.V. He points out that Dr. Sudhalter observed that D.V. 

had an IQ.in the average range with asignificantdifference between·verbalcomprehension 

and non-language composites such as visuospatial and working memory, and thatD.V. had 

a severe articulation and syntax deficit. He notes that it was theimpression of Dr. Sudhalter 

that lead poisoning had contributed to D.V. 's documented cognitive, social, and behavioral 

impairments. 

Defendant, in response, states that plaintiffs have not exchanged a copy of Dr. 

Sudha1ter's report, but have only provided their expert disclosure~ in which plaintiff's 

cou:nsel discusses Dr. Sudhalter's expected testimony and her findings. (NYSCEF Doc No. 

76}. This expert disclosure states; in detail; Dr. Sudhalter's evaluation of D.V., and her 

findings and conclusions as to D.V.'s intelligence assessment, neuropsychologica.1 

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assessm:ent,_sensory-motor functioning, learning a:i1d memory, and executive.functioning, 

and it appears to. c_onta.in the contents of Dr. Sudhalte(s report (id.). It specifically states 

that bas_ed upon ccmsidera.ti6n of D.V. 's neurobehavioral and neuropsychological deficits, 

mcqical history ·and the current medical" literature, Dr. Sudhalter Will opine··that brajn 

damage from .lead poisoning has significantly·contributedto documented cognitive, social, 

and behavioral impairments (id.). 

No affirmed report by Di.·. Sμdhalter has been submitted. Defendant contencls that 

Dr. Adler, irt his t.eport,_ depends and relies upon the findings.and opinions ofDr. Sudhalter 

and that this is not a ·prop.er foundation upon which an .expert may base his opinions arid 

conclusions. Defondant notes that there is nothing in D.V. 's 111.edical records, \\fhich have 

been submit_tecj by plaintiff, whjch show any cognitive injury.sustained by ·o .V. (NYSCEF 

Doc No., 51). 

D,V. was .. exatnined by defendant's .eJ<pert, Walter Molofsky, M.D., a pediatdc 

neurolog,ist, on January 4, 2022. Dr. Molofsky~ in his report, :opines that there is no 

evidence of any decrement in.function from D;V.'s lead exposure (NYSCEFDoc No .. 73). 

D.V. was tested by de.fendant's expert, David M .. Masur, Ph.D._, a neuropsychologist, on 

July 7, 2022. Dr. Masur, in his report, opi_nes- that D.y. demonsttated:·.no evidence for the 

presence of arty cognitive. deficit that could be causally related to his history of elevatet:l 

lead levels (NYSCEF Doc No. 74). 

Jiowever, neither Dr. Molotsky's expert report •nor ·nt-~ Masur's expert report is 

-affirmed.-Since both ofthese -reports ar~ un~wom,they are not in admissible fonn and do 

not constitute competent evidence .. Therefore; the.y n'it'\-Y nbtbe .. con:sidered in opposition to 

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plaintiffs' summary judgment motion and cannot create a triable issue of fact as to 

causation {see CPLR 2106; Ulm l Holding Corp. v Antell, 155 AD3d 585, 586 [1st Dept 

2017]; Mazzola v City ofNew York, 32 AD3d 906,907 [2d Dept 2006]). 

In any event, defendant argues that Dr. Adlerimproperly relies upon Dr. Sudhalter's 

report, which has not been exchanged. The court notes that since Dr. Sudhalter's report has 

not been submitted to the court, it cannot be ascertained ifit was sworn. It is true that an 

affirmed report by a medical expert may not ptopcdy rely on an unswom, and therefore 

inadmissible, report, to conclude that the plaintiff suffered actual injuries (see Concepcion 

v Walsh, 38 AD3d 317, 318 [1st Dept 2007]; Lora v Calle~ 16 AD3d 359, 360 [Jst Dept 

2005]; Vallejo vBuildersfor Family Youth, Diocese of Brooklyn, Inc., rs AD3d 741, 742 

[2d Dept 2005]). Contrary to defendant's argument, however, Dr. Adler does not base his 

opinion solely on Or. Sudhalter'sreport. Rather~ Dr. Adler bases his concJusions on his 

own examination and clinical impressions. 

Plaintiffs' proofsuffices to establish prirna facie causation, In partkular, plaintiffs 

have produced evidence thatthe apartment contained hazardous levels oflead-based paint, 

that D. V. was observed ingesting paint chips, that U.V. had elevated blood levels of lead, 

and that D.V. had lived in the apartment since birth. Furthermore! Dr. Adler, in 'his expert 

affirmation, opines, to a reasonable degree of medical certainty, that had D.V. not been 

lead poisoned, his overall level of intellectual and future acade1nic functioning would have 

been higher,.that.D.V.'s·exposure to lead paint in his apartment was the substantive cause 

of his cognitive and intellectual deficits, and that lead poisoning will negatively affect the 

therapies that D.V. will requjre in order to make developmental progress (NYSCEF Doc 

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No. 50). Defendant, in opposition, has submitted no evidence that D.V.'s lead poisoning 

was related to any factors otherthan his exposure to lead in the apartment. 

Furthermore, while defendant, without admissible sworn expert affidavits, argues ... /". . .. / 

that D.V. was not i11juredby his lead poisoning; D.V.'s elevated blood lead levels and Dr. 

Adler's expert affidavit establish that D.V. sustaineci an actionable injury (see Taylor v 

BrookeTowers LLC, 73 AD3d535, 536 [l:stDept20l0];Bygravev New York City Haus. 

Aitth., 65 AD3d 842, 847 [1st Dept 2009]; KyddvDaa,:ta Realty Corp., 60 AD3d 997, 998 

[2d Dept 2009]; Baez v Sugrue, 300 AD2d 519, 521 [2d Dept 2002]; Wynn v T.R.LP: 

Redevelopment Assoc., 296 AD2d 176, 184 [3d Dept 2002]). The issue oftheexte_nt o~the ····"':-.. , .... : 

il1iuries sustained by D.V. as a result of his elevated blood lead levels go to the question of 

damages (see Lanza v Delbalso, 217 AD3d 664, 665 [2d Dept 2023]; Fo.ster v Alfred S. 

Friedman Mgt. Corp., 63 AD3d 446,447 [lstDept2009J;.Munoz v Mae! Equities, 2 AD3d 

118, 119 [ 1st Dept 2003]). 

Conclusion 

Accordingly, plaintiffs' motion, under motion sequence number four, for $Uinmary 

( 

judgment on the issue ofliability is gnmted. This lllatter shall be set do:wn foran assess;nent 

of dainages. 

This constitutes the decision artd order of the court. 

ENTER, 

A, l S. C. 

27 Hon. Kerry J. Vvard, AJ.S.C. 

[* 27]