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.

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

1 of 27 At an IAS Term, Part 9 ofthe Supreme Comt ofthe State ofNew 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 byhis 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 ofMotion/Order toShow Cause/ PetitionJCrbss Motion m1d Affidavits (Affinnations) Annexed.
__________ _ Opposing Affidavits (Affirmations)
__________ _ Affidavits/Affirmations in Reply
__________ _ Plaintiffs Memorandum ofLaw __________ _ ··oefendant's Memorandum ofLaw __________ _ Index

### No.: 526413/2019 Mot. Seq. 

### No. 4

NYSCEF DocNos.:

42-64 69 71-76

78-83

65 

### 70 Upon the 

### fotegoing papers, in this action by

### the infant plaintiffD.V., 1 brought on his behalfby his mother and natural guardian, SolangelBautista (plaintiff), 

### andbyplaintiff, individually, 

### .against defendant 

### 997 Hart Stre.et, 

### LLC (defendant), torecover 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).



### [* 1]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

2 of 27 move, under motion sequence number four, for an order granting them summaryjudgment
on the issue ofliability 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, signeda lease with Nateram Ramkissoon (Ramkissoon), who was, atthattime, the owner and landlord ofthe premises, to rent apartment 2~ which consisted ofthe second floor ofthe premises (NYSCEF Doc No. 64). Ramkissoon occupied thefirst floor apartment atthattime. Apartment2 has three hGdrooms, a kitchen, and a bathroom, l)pon signing the lease, plaintiffmoved 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 ofthe apartment. Approximately two months after D.V. was born, Ramkissoon, by a deed dated December 

## n, 2018, sold thepremisesto defendant (NYSCEF Doc No. 53).Plaintiffclaims that defendant's property manager, Joanna Moloney (Moloney), came 

### "[a] number 

### of times" to see the apartment, and, thercfi:)rc, was aware that a childresidedin the apartmeht 

### (NYSCEF Doc

## No. 48, plaintiffs dep tr at 

### 41) lirte25). After defendant purchased the property I Martha 

### Garcia (Garcia} became the superintendent ofthe prernises. Garcia would goto 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). 

### Plaintiffwould inake 

### any complaints she 

### and her family had regarding the 

### condition of

### the 2. 

### [* 2]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

3 of 27 

### 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 orMarch 2019, two orthtee 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). Plaintiffdescribed the size·

### nfthe paint chips ;;i_s 

### being_.approximately one-halfofan inch {id. at51, 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 of5 ug/dL3 On 

### June 26_;- 20..I9, the 

### New 

### York City Department 

### of l-lealth and 

### Mental." 

### Hygi<;!_ne Healthy 

### l.fomes 

### Pt.ogram/Lead Poisoning Prevention Progratn (the 

### DOH) inspected ihe apartment 

### for lyad-based paint pursuant to section 

### 173.13 (d) (1) 

### ofthe New York 

### City Health Code. tbeinspectiortreport 

### stated that 

### 30 ofthe 62 XRF

### readings retur11ed positive 

### results for lead-bas.ed-paint 

### hazards 

### (NYSCEF Doc

### No. '55). Accordingto

### Moloney, she learned aboutviolations 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.

2 EffectiveApril i4, 2019, Public Health Law§ 1370 (6) was amended to define an elevated lead level asmeaning "a. biood lead l_evel greater than orequal to five m icrograriis of lead petdei;:i!iter ofwhcile blood orsuch i~wer qlood lead I eve! as may be established by the departinerit pursuantto rule or regulatioh.,; Priorto that amendment, an elevated lead level was defined as ineahing "a blood lead level greatetthan orequalto 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 orr~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 oflead per·decili.ter .ofwhole blood., .3 

### [* 3]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

4 of 27 

### 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 

## aproposal 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 paintthatwaspeeling 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 ofthe City ofNew 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 paintviolations noted inthc appended Violation R,eport in ac:cordance with the procedures prescribed in New York City Health Code § 

### J73,14 

### and to complete all abatement work within five days ofreceipt ofthiS Order (id.). 4 

### [* 4]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

5 of 27 Defendant didnot complete the abatement work within five days ofteceipt ofthe 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 Garciaimmediately 

### 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. MoIoney- did notremember ifshe started looking

### for a_contractor dt1ringAugust 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, butdid not hire him because his proposal ·'camein a littlCbit high" (id. at 134, lines 15- I6). An August 

### 9, 2019 letter to defendant(NYSCEF Doc No. 58)stated thatreview of records ofthe DOH Healthy Hornes Program indicated that defendant wasservecl with the Order ofthe Commissioner (ifHealth to abate lead-based paint and that pursuant to New York City Health Code § I73'14 (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 

### bytheDOH,sJ-Iealthy Homes Program 

### and a review ofits 5. 

### [* 5]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

6 of 27 records indicated that the lead paint hazards cited atthepremises 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 ofHousing Preservation artd Development (HPD) to execute the Order. It set forth that the failure to comply with this OrderwUl result inplacement ofa lien and maysubject defendant to civil or criminal penalties. The DOH scheduled the workitself~ which was performedby HPD, andbilledto defendant (NYSCEF DocNo. 49, Moloney's dep tr at 138, lines 3-25; at 139. line 2). On or about September 10, 2019 1 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 l34, lines 4-5; at 137 1 lines I6-22). However, by the time thatBNHLead Examiner came toperform the work in plaintiffs' apartment on September 11, 2019 1over six weeks from the issuance ofthe July 26, 2019 Orderto 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 nottimely abating the hazardous lead condition in accordance with the Order to Abate Nuisance, defendant did not offer to relocate plaintiffand 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

4The Notification of Commencement of Lead Abatement/Remediatlon 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). 6 

### [* 6]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

7 of 27 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 toremediate the lead-based hazards within five days from July 26, 2019 as required by the Order to Abate .Nuisance. A September

### 26, 2019 lead testrevealed thatD

### .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 bloodlead 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.'sblood 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 DOHthat she had 

### taken steps to coordinate the removal of lead paint dustdescribed inthe Order to Abate Nuisance. Specifically, Moloney stated that cleaning wa.s: conducted of all surfaces referenced with a HEPA vacuum, followed by washing with 

### a detergent solution, and 

### a final 1-IEPA 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. 7 

### [* 7]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

8 of 27 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 at11, lines 19-20), Defendant, on the other hand, claimsthat plaintiffand her family vacated the apartment in September 2020 (NYSCEF Doc No. 69 at paragraph 16) ot February 2021 (NYSCEFDoc No. 49, Moloney·s dep tr at 195, Iine 6). OnDecember4; 2019,.plaintiffs filed the instantaction against defendant (NYSCEF Doc No. 

### I). Plaintiffs' complaint alleges claims of negligence and violation of the Administrative Code ofthe City ofNew York, and a loss uf services claim on behalfof plaintiff; On May 19, 2020, defendantfiled an answer to plaintiffs' complaint (NYSCEF Doc No. 4). On November 29, 2023, plaintiffs filed their instant motion, under motion sequence number four (NYSCEFDocNo. 42). Defendanthas submittedopposition papers, and plaintiffs have submitted reply papers. All discovery has been completed, including the depositions- ofplaintiffand Moloney. Plaintiffs filedtheir note ofissue 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 oflead in any apartment in which a child six years ofage or younger tesidcs" 

### (Shafi v 

## Motta, 73 AD3d 729, 729 [2d Dept 201

### O]; see also Administrative Code ofCity ofNY §27-2056.3, 8 

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9 of 27 §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 

### vNew 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 at729; see also Juarez, 88 NY2d at 643}. "Rather, aplaintiffmust establishthatthe landlord

### had actualorconstructive 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 ofLocalLaw 1, providesthat "[i]n any multiple dwelling erected prior to 

### Janμary 1, 1960, it shall be

### presumed that thepaint or othersimilar 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).Applyingthispresumption,-thelandlord willbe charged with constructive notice ofany lead paint hazard within an apartment thathe or she knows is occupied bya child 

### ofthe specified age 

### (Juarez, 88 NY2d at 647; 

### Hill v Larae 

### House, Inc., 135 AD3d 659,659 [h;tDept 2016]; Turner, 105AD3d at 947; Shafi, 73 AD3d 729, 729"'730 [2d Dept 2010]; Jirninez v City of New York, 7 AD3d268, 269 (1stDept 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.ied4NY3d 711 [2005];Rivas
v 1340Hudson

### Realty Corp,, 234AD2d 132, 135 [1stDept 1996]; Colon vNew YorkCity Hous. Auth, 233 AD2d 123, 123 [1st Dept 1996]}. Thus, under Local Law 1, ''whether the 9 

### [* 9]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

10 of 27 landlord had actual notice ofpeeling paint or other indications ofa [lead paint] hazard are immaterhtl" (Woolfalk, 263 AD2d at356; see also Hill, 135AD3d 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- andtwo,. 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 otherthanthe owner ofsuch dwelling or a member of such owner's family, provided, however, that the provisions ofthis article, other than section 27-2056.14, shall not apply to a dwelling unit that is occupied by such owner or a member ofsuch owner's family."· Atthetime that

### D.V. was living at the premi-?es and lead paintviolations existed in 2019, Administrative Code§ 2T-2056.l was notyet 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 Netral v 

### L;ppold, 304 A02d491, 4 9 2 [ 1st Dept2003]). Note2 toAdministrative Code 

### § 27-2056.l states that "[t]his local law takes effect 1 year after it becomes law, exceptthe. commissioner ofhousingpreservation 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 expandedits enforcementworkthrough 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/hpd/ downloads/pdfs/services/loca!-law-1-report-fy2021.pdfatl). 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. at4). HPD, in partnership with LeadFreeNYC, launched the "Get Ahead ofLead" campaign in November 2019 for multiple dwelling properties and continued it in early 202d with a-particularfocus on one- andtwo-family properties" (id. at 2). "This outreach and education campaign reminded.propertyowners oftheirobligation.under the law to proactive!y address lead-based paint hazards" (id.). "Thecampaign ran in eightlanguages on bus


### [* 10]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

11 of 27 

### Plaintiffs argue- thatthe-.court should apply this:provision retroactively so thatLocal Law l 

### is .applicable to the premises. and defendant. 

### The court. notes the remedial purpose ofthis 

### proyision. Furtlwrmore_, in 

### Mttt(e.r of Regina

### MetNJ, Co., LLC

### vNew 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 ofthe 

### fundamental pqrpo&e of

### the· )~gishition, 

### arational 

### 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 thatit·$hall 

### receive-. .a contrary 

### interpretati.ori" {McKinnets Cons Laws 

### of.NY, Book l, Statutes 

### § 

### 52 [ footnotes orriitted]). Since Administrative Code § 

### 27-20 56. 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 ofLabor]. 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 underthis 

### 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 ofchildren with elevated blood. lead levels (id.). · 11 

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12 of 27 

### While plaintiffs are not entitled to the presumption ofLocal 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-paintcondition, a plaintiff must demonstrate thatthe 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 thelandlord had actualnotice of the lead paint hazardous condition, plaintiffs may establishthatthe landlord had constructivenotice ofsuch 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 ofthe hazards oflead-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 12 

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13 of 27 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 ofAppeals decision of Chapman remainthebasis for determining whether a landlord had constructivenotice ofa hazardouslead..;based paint condition and thus may be heldliable 

### (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 ofentry to the premises and assumed a duty to makerepairs. ''[A] building owner may be charged with constructive notice ofdefects in those parts ofthe building into which it has authority to 

### enter;'(Juarez, 88 NY2d at 647). Here, the lease specifically stated that '"Landlordwill repair the plumbing,heating and electrical systems"(NYSCEF DocNo. 64, lease,, 8). The lease also stated: "Landlord may enter the Apartment atreasonable 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. Atreastmable hours Landlord may showtheApartmentto possible. buyers, lenders, ortenants ofthe entire Building orland. Atreasonable hours Landlord may show the Apartment to possible or new tenants during the last 4 months ofthe Term. EntrybyLandlordmustbe onreasonable notice except 

### inemergency'' (id at 111). Indeed, plaintifftestified,.at herdeposition, 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). Plaintiffalso attested that ''atleastortceaweek, from December20J·g toJune 2O19,.asuperintendcmt.named [Garcia], who spoke Spanish, came to [her] apartment in response tocomplaints that [she] made, or when she came to take out the garbage, artd c:lean the hallway ai1d stairway inside the
13 

### [* 13]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

14 of 27 

### building~; (NYSCEF Doc 

### No. 47, plaintiff's affidavit). Plaintifffarther 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 whilethe lease gave it a right ofentry, there is no evidence 

### ·-that it 

### had the

### ahility to.enter 

### plaintifi:"s.apartment

### by a 

### key. Defendant:notes
__

### thatMoloney testified that she did 

### not remember if

### she had a key

### to plaintiffs' apartinent Qr 

### ifthe 

### 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 plaintitrs depositiontestimony or affidavit 

### indicates that Garcia letherself

### into plaint1

### ffs' apartment. Defendanf

### s argument 

### is unavailing. There is no affirmative testimony 

## by defendant 

### thatit 

### did not have a key 

### to plaintiffs' apartment. Moloney 

### merely testified that ~he did not remember ifdefendant

### rctainedkeys

### to the

### apartment (id. 

### at79; 

## 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 ofthe 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 leadpaint stamps while in plaintiffs apartment, and thatth_ere 

### was l)llly 

### luteroo_m

14 

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15 of 27 that had been locked and could not 

### he access·ed 

### (id: at 193, lines 2-7). This shows that ·d.efendanthad 

### access·to·the areawhere: 

### 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 testifiedtha,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,_ orthe smokedetectors (id. at 187, lines 12~ 16)
.



### . Moloney testifiedthat after 

### she learned ofthe 

### lead paint 

### condition, 

## she sentthe 

### 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-ll). 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 19l~ lines 7-14). 

### :Moloney did 

### n.ot remember ifshe

### everknocked on 

### plain

### ti

## rr s 

### doorto gain access{ld: at 186, lines 

### 12-J4-). Aspreviously rioted; Moloney admits that she had 

### -access at the time 

### that sh~ walked thtoμgh 

### the apartmentwiththe 

### 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. Thereis

### ·uo affidavit submitted

### by-Moloney

### or Garcia, and there is 

### no deposition testimony by

### Garcia, which addre:sses access to the·-apartment or defendanfsright 

### ofentry.

15 

### [* 15]

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16 of 27 Thus,there is nothingto refute that defendant had the right ofentry as expressly provided

. . . in the lease, andthe 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 ofthe 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 oflead-based paint oh interior building surfaces (see Juarez, 88 NY2d at 

### 64l). Moreover, defendant does notdispute that

### itwas aware ofthe age ofthe premises. Thus, this second Chapman factor is met. As tothe third Chapman factor~ i.e., that defendant was aware thatpaintwaspeeling
on the premises, plaintifftestified, atherdeposition, that shetold Garcia ''[t]hatthe painting
was chipped ·"'
- that the paint was chipping and that 

### it needed to be painted, again'' (NYSCEFDoc No. 48, plaintiffs dep tr at 47, lines 18~22). Plaintiffalso attested, in her
sworn affidavit, that "[o_Jne thne when [she]saw [Garcia] in the building 

### in the beginning of2019, [she] complained to her that the paint in the apartment was chipping, that it was in bad condition, andit was in need ofrepair, but nothing wasever done'.;, Plaintiffexplainedthatwhenever she noticedthepaint chips, she would sweepthem up and throw them away (NYSCEF Doc 

### No. 48, plaintiff's dep tr at 51, lines 1s.:21). Plaintiffspecifically testified thatpaintchips were "[a]ll overthe place. It was everywhere. On the door, on the doorto the bathroom, on the <ioor to the closet, in the windows, the

16 

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17 of 27 windows ofthe. 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 plaintiffhas failed to establish that it

### knewthat the apartment 

### contained defective orpeelingpaint 

### Moloney, at 

### her deposition, 

### deni"edthat

### 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, ather deposition, thatshe 

### did, not know the 

### conditionofthe 

### paint in the- apartment .in 

### January 20l9 

### (id. at 198, 

### lines 7-9). Moioney also testifiedthat when she 

### looked at the 

### areas 

### ::.;tamped-as having 

### lead._paint, she,did 

### not·-rememh¢r ifthe 

### 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 

### riotstarted 

### at the time ofits 

### inspection 

### ofall
areas 

### cited in 

### the Order 

### to Abate 

### Nuis·ance, as evidenced by. chipping and peeling pa:int, and asked

### when it

### says chippiμg arid 

### peeling_

## paintre1nained, ·

### .iffr was.-'~true 

### in fact ...that there was chipping and _peeling 

### paint inside thatapartment," 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 paintviolations 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 l93~

[* 17]

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18 of 27 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 

### ofthe hazards 

### ofleadbased 

### painttoyoung 

### children, :Moloney 

### adhlitted that as of2"0l 8, she was aware 

### that there
was 

## alead paint notice 

### thathad, 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 paintwas a potential 

### health hazard

### to small 

### childrenifih~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 thatthe 

### lead paint

### disclost1re fonn and the patnphlet that accompanies it

. . 

### :"indicated the type 

### ofharm 

### that-can 

### happeri to a child 

### ifhe 

### 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 askedat h_er deposition whether she knew from the timethat 

### she received the 

### notice of violationthatthere were lead-basedhazards 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 theprior 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 underthe age ofseven years resided ih the apartment, or a Window Guard Nqth:;~, Which IAIOuld h,11ve r~quiredthat she-identify whether a child 10years ofage 

### 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 glven 1 did not apply to two::family homes.


### [* 18]

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19 of 27 As to thefifth 

### Chapman factorthat defendant knew that a young child lived in the apartment, plaintifftestified that Moloney came "[aJ number oftimes" to sec the apartment (NYSCEF DocNo.48, plaintiffs dep tr at4 l, lines 23-25), Plaintiff, 

### in her sworn affidavit, also attests thatbefote defendant purchased the building, Moloney carne 

### in to look at the apartment, and when she was present in theapartment,b.V., who wasthen 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 thatWere in the apartment (id). ln addition, plaintiffattests 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 defendantwas getting ready to

### se:ll the building and was showing it to prospective buyets, even though defendant had just purchased 

### it (id.). Plaintiffexplained that "[e]ve;ry time [Moloney] came to [her] apartment, [her] two children, who were three (3) years ofage oryounger, were present inthe 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). Plaintiffasserts that notice ofa child under sixyears oldcan al~o be imputed 

### from defendant's superintendent; Garcia, wh

### a. went to the apartrnent to fix a c<!iling leak and a bathroom leak

### and wouId 

### tell Mo

## lon.ey 19 

### [* 19]

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20 of 27 

### about the -frunily's coinplaints regarding the 

### apartment (NYSCEF 

### Doc No. 48, plaintiff's dep tr 

### at 45, 

### lines 8-2.5-;_

### -at4

### 7, lines 

### 4-9), 

### Moloney admitted 

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

### apartments,_prior 

### to defondanf

### s purchase 

### ofit (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 notremember 

### if she 

### discussed who occupied the apartment

### -in 

### the Fall 

### of2018 (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 

### MemorandumofLaw at 

### paragraph 28). Moloney 

### stated thatshe was unable 

### to. say one 

### way ·or the:.other whether she was 

### aware that 

### there, were small 

### children living in the apartment 

### ·-in 20r8 

### orJanuary 

### 2019 (id. at 

### 113,lines 19-25; at 114, line$ 2~5). Moloney 

### tesHfiecl that 

### she did not 

### remember ifshe 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 

### Iff-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 -20 

### [* 20]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

21 of 27 fifth Chapman factor has been satisfied at least-as ofthe time that defendant -received"the 

### .Orderto Abate

### Nuisance. Whiletriable 

### issues offact 

### exist as to whether plaintiffs 

### satisfied the.thfrd 

### and fifth 

### Chapman factors prior to D.V.~s leadpo"isoning on June 14, 2"019.(whenhe hadanelevated 

### blood level of5 ·ug/dL)-, 

### iher.e. can be·.no dispute;

### thatthese fa,ctors werf;: satisfied 

### as 

# o.fthe time

### when the Order

### to Abate 

### Nui$a:ricie_was issued on

### J11ly 26~. 

### 2019. Indeed~ as 

### ofthe 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, 52AD3d at 640} 

### Once a landlord _is 

### found to have had the requis_ite 

### notice ofth.e 

### residency ofa: child under the age ofsix 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 AD3d 

### .at640; lbert 

### vT 

### uscan.Ass_oc., .Inc., 37 AD3d 194~ 196 [1st 

### Dept 2007]). ln_ addit_ion, the plaintiff

### must deinonstrate thatthe

. .

. . 

### 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 

### ofdefendant's. abatement efforts after receiving actual notice ofthe lead paint conditionsince 

### 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). 21 

### [* 21]

### FILED: KINGS COUNTY CLERK 09/10/2024 03:34 PM INDEX NO. 526413/2019 NYSCEF DOC. NO. 85 RECEIVED NYSCEF: 09/10/2024

22 of 27 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 dramaticallyincreased 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 theremediation 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 [2dDept 2002]; 

### Bellanyv 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 ofthe leadpaintcondition in the apartment, tuthe extentthatsuch injuries are shown to be proximately causedbysuch lead paint condition. Plaintiffs contend that lead creates an indivisible brain injury, and, as a result, defendant mustbe held liablefor all injuries caused by 

### D.V. 

### 'slead poisoning, both before it had· actual notice ofthe lead paint condition and after 

### it had such actual notice. It has been held that where the record is devoid of any proofwhich 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 andpost;.noticeperiods ofexposure to kad paint, without apportiomnent 

### (see 

## La

. . 

### Fountaine 

### vFranzese, 

### 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, 22 

### [* 22]

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23 of 27 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 denied99

### NY2d 502 

### [2002.];La Foimtaine~ 282 AD2d at 9J8). }fowever, 

### as to causation, 

### a 

### plaintiffmoving for smnmaryjudgment 

### mustestablish 

### "a legally sufficient causal nexus 

### behveen

### the alleged 

### breach and the claimed 

### damages" 

### (Chapman, 97 NY2d at 

### 22). Plainti

### ff has set forth 

### D;V.'s cJaimed injuries 

### in their bill of p_atticulars (NYSCEF 

### Doc No. 46). 

### Piaintiff has submitted th~ report 

### .ofDaniel Adler, 

### M.D., Which 

### is·:affirmed pursuantto 

### 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 thatthese 

### 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 23 

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24 of 27 

### ofmedical certainty, that ifD.V. hadnotbeenlead poisoned, his overall level ofintellectual and future academic functioning would have been higher. Dr. Adler further opines, to 

## a reasonable degree ofmedical certainty, that D.V. 's exposure tolead paintin the apartment qwned by defendant was the substantive cause ofD.V.'s cognitive and intellectual deficits. Dr. Adler states that hereviewed therecords ofthe New York City Department of Health andMenta1 Hygiene; the records ofthe WycoffHeights Medical Center, the records. ofAllergy and Asthma Care ofBrooklyn, the recordsofNew York Presbyterian ffospital,. the laboratory test results from LabCorp, and the records of Ridgewood Pediatrics. De Adler also states thathe 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 thatDr. Sudhalter observed that D.V. hadan IQ.in the average range with asignificantdifference between·verbalcomprehension and non-language composites such as visuospatial and workingmemory, and thatD.V. had
a severe articulation and syntax deficit. Henotes that it wastheimpression ofDr. Sudhalter that lead poisoning had contributed to D.V.'s documented cognitive, social, andbehavioral impairments. Defendant, in response, states that plaintiffs have not exchanged a copy ofDr. 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 DocNo. 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 24 

### [* 24]

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25 of 27 

### assessm:ent,_sensory-motor functioning, 

### learning a:i1d 

## memory, and executive.functioning, and it 

### appears to. 

### c_onta.in the contents 

### ofDr. Sudhalte(s report (id.). It specifically states 

### that bas_ed upon ccmsidera.ti6n 

### ofD.V.'s 

### neurobehavioral andneuropsychological 

### deficits, 

### mcqical history 

### ·and 

### the current medical" literature, 

### Dr. Sudhalter 

### Will opine··that brajn damage from 

### .leadpoisoning 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 thatthis 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 showany 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 ofany 

### 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 ofelevatet: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 25 

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26 of 27 plaintiffs' summary judgment motion and cannot create a triable issue of fact as to causation {see CPLR 2106; Ulm 

### l Holding Corp. vAntell, 155 AD3d 585, 586 [1st Dept 2017]; 

### Mazzola v City 

### ofNew York, 32 AD3d 906,907 [2d Dept2006]). Inany event, defendantargues that

### Dr. Adlerimproperly reliesupon Dr. Sudhalter's report, which has notbeen exchanged.The courtnotes that sinceDr. Sudhalter's report has not been submittedto 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 plaintiffsuffered actual injuries (see Concepcion


### v Walsh, 38 AD3d 

### 317, 318 [1st Dept 2007]; 

### Lorav Calle~ 

### 16 AD3d 

### 359, 360 [JstDept 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 containedhazardous levels oflead-based paint, thatD.V. was observed ingesting paintchips, that U.V. had elevated blood levels oflead, 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 

### ofintellectual and future acade1nic functioning wouldhave been higher,.that.D.V.'s·exposure to leadpaintin 

### his apartment was the substantive cause ofhis 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 26 

### [* 26]

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27 of 27 No. 50). Defendant, in opposition, has submitted no evidence that D.V.'s lead poisoning
was related to any factors otherthan his exposureto lead in the apartment. Furthermore, while defendant, without admissible sworn expertaffidavits, 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 [1stDept 2009]; KyddvDaa,:ta Realty

### Corp., 60 AD3d997, 998 

### [2d Dept 2009]; 

### Baez v Sugrue, 

### 300 AD2d 519, 521 [2d Dept 2002]; Wynn 

### v T.R.LP: RedevelopmentAssoc., 296 AD2d 176, 184 [3d Dept 2002]). The issue oftheexte_nt o~the ····"':-.. , ....: il1iuries sustained by D.V. as a result ofhis elevated bloodlead levels go to the question of damages 

### (see Lanza v 

### Delbalso, 217 AD3d 664, 665 [2d Dept2023]; 

### Fo.ster v AlfredS. 

### Friedman Mgt. Corp., 63 AD3d446,447 [lstDept2009J;.Munoz

### v 

### Mae!Equities, 2 AD3d 118, 119 [1st Dept 2003]). Conclusion Accordingly, plaintiffs' motion, undermotion sequence number four, for 

### $Uinmary ( judgmentontheissueofliabilityisgnmted. Thislllatter shall be set do:wn foran assess;nent ofdainages. This constitutes the decision artd orderofthe court. 

### ENTER, 

## A, l S. C. 27 

### Hon. Kerry J. 

### Vvard, AJ.S.C.


### [* 27]