SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

996 

CA 13-01391 

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.

 

 

DEVON FAISON AND TIERRA FAISON, AN INFANT, BY 

HER PARENT AND NATURAL GUARDIAN, KIMBERLY 

BARNETT, PLAINTIFFS-APPELLANTS-RESPONDENTS,

V MEMORANDUM AND ORDER

LEE LUONG, JAMES L. CUYLER AND GEORGIA CUYLER, 

DEFENDANTS-RESPONDENTS-APPELLANTS. 

(APPEAL NO. 1.) 

 

ATHARI & ASSOCIATES, LLC, NEW HARTFORD (MO ATHARI OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS-RESPONDENTS. 

SLIWA & LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR

DEFENDANT-RESPONDENT-APPELLANT LEE LUONG.

BURGIO, KITA, CURVIN & BANKER, BUFFALO (STEVEN P. CURVIN OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS-APPELLANTS JAMES L. CUYLER AND GEORGIA

CUYLER.

 

Appeal and cross appeals from a judgment and order (one paper) of

the Supreme Court, Monroe County (John J. Ark, J.), entered May 9,

2013. The judgment and order denied the motion and cross motions of

the parties for summary judgment. 

It is hereby ORDERED that the judgment and order so appealed from

is unanimously modified on the law by granting the motion and

dismissing the complaint against defendant Lee Luong and by granting

the cross motion of defendants James L. Cuyler and Georgia Cuyler and

dismissing the cause of action for negligent ownership and maintenance

against them for the time period prior to September 30, 1994 and as

modified the judgment and order is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries allegedly sustained by plaintiff Devon Faison and his sister,

Tierra Faison, as a result of their exposure to lead paint as

children. The consolidated complaint asserted causes of action for

negligent ownership and maintenance of the subject properties, as well

as negligent abatement of the lead paint hazards. Defendant Lee

Luong, the landlord of one of the properties, moved for summary

judgment dismissing the complaint against him, which was limited to

allegations concerning Devon. Plaintiffs cross-moved for, inter alia,

summary judgment on the issues of “liability (notice, negligence and

substantial factor) against defendants” and dismissal of various
-2- 996 

CA 13-01391 

defenses. Defendants James L. Cuyler and Georgia Cuyler, the

landlords of the other subject property, cross-moved for partial

summary judgment. By the judgment and order in appeal No. 1, Supreme

Court denied the motion and cross motions. Thereafter, the order in

appeal No. 2 was entered, which again denied the Cuylers’ cross

motion, and the order in appeal No. 3 was entered, which, inter alia,

again denied Luong’s motion. Plaintiffs appeal and defendants crossappeal from the judgment and order in appeal No. 1. In addition, the

Cuylers appeal from the order in appeal No. 2, and plaintiffs appeal

and Luong cross-appeals from the order in appeal No. 3.

At the outset, we note that the “judgment and order” in appeal

No. 1 encompasses Supreme Court’s determination of the motion and

cross motions before it, and the orders in appeal Nos. 2 and 3 contain

no material or substantial change from the judgment and order in

appeal No. 1. We therefore dismiss the appeal from the order in

appeal No. 2 and the appeal and cross appeal from the order in appeal

No. 3, inasmuch as the appeal properly lies from the judgment and

order in appeal No. 1 (see generally Matter of Kolasz v Levitt, 63

AD2d 777, 779).

Even assuming, arguendo, that plaintiffs tendered admissible

evidence establishing that Devon and Tierra were exposed to lead

paint, we conclude that the court properly denied that part of

plaintiffs’ cross motion for summary judgment on the issues of

“liability (notice, negligence and substantial factor).” “In order

for a landlord to be held liable for a lead paint condition, it must

be established that the landlord had actual or constructive notice of

the hazardous condition and a reasonable opportunity to remedy it, but

failed to do so” (Spain v Holl, 115 AD3d 1368, 1369; see Pagan v

Rafter, 107 AD3d 1505, 1506; see generally Juarez v Wavecrest Mgt.

Team, 88 NY2d 628, 646). We conclude that plaintiffs failed to meet

their initial burden of establishing that defendants had actual or

constructive notice (see generally Zuckerman v City of New York, 49

NY2d 557, 562). We reject plaintiffs’ further contention that the

court erred in denying that part of their cross motion seeking

dismissal of the Cuylers’ second affirmative defense, alleging

plaintiffs’ failure to mitigate. Here, plaintiffs “failed to show

that [the] defense[] lacked merit as a matter of law” (Pagan, 107 AD3d

at 1507).

We agree with Luong, however, that he met his burden on his

motion with respect to the cause of action for negligent ownership and

maintenance of the subject property by establishing that he did not

have actual or constructive notice of the hazardous lead paint

condition, and Devon failed to raise a triable issue of fact (see

Spain, 115 AD3d at 1369; see generally Chapman v Silber, 97 NY2d 9,

15). We further agree with Luong that he met his burden with respect

to the negligent abatement cause of action by establishing that he

abated the lead paint hazard in a reasonable manner, and Devon failed

to raise an issue of fact (cf. Pagan, 107 AD3d at 1506-1507; see

generally Juarez, 88 NY2d at 646). We therefore modify the judgment

and order in appeal No. 1 by granting Luong’s motion and dismissing

the complaint against him. Inasmuch as the complaint against Luong is
-3- 996 

CA 13-01391 

dismissed, we do not address the contentions of plaintiffs concerning

the court’s refusal to dismiss Luong’s various defenses. 

We agree with the Cuylers that the court erred in denying their

cross motion for partial summary judgment dismissing the cause of

action for negligent ownership and maintenance against them insofar as

it concerns the time period prior to September 30, 1994, the date on

which they received notification of a lead paint hazard from the

Monroe County Department of Health. We therefore further modify the

judgment and order in appeal No. 1 accordingly. Those defendants

established that, prior to that date, they did not have actual or

constructive notice of a lead paint hazard at the subject property,

and plaintiffs failed to raise a triable issue of fact (see Spain, 115

AD3d at 1369; see generally Chapman, 97 NY2d at 15). 

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court