De-lead or De-fend

In 2003, the New York City Council amended Local Law 1 of 1982 to make it “the responsibility of every (multiple dwelling) owner…to investigate for lead-based paint hazards, to address such hazards on a case-by-case basis as the conditions may warrant,” and to remove lead paint that is peeling or chipping (as opposed to intact.) Local Law 1 of 2004, as it is called, maintains the rebuttable presumption that peeling paint in pre-1960 multiple dwellings in which a child under age 7 resides is an “immediately hazardous lead condition” (which is defined to include “lead-contaminated dust”, “chewable” (protruding and readily accessible), “deteriorated”, “peeling,” “impact” and “friction” surfaces.) The statute and case law focus on 1960 because the City banned the use of lead-based paint on interior building surfaces in January of that year, and on peeling paint because surfaces that are intact or are not accessible to children are not considered hazardous regardless of their lead content.

The law requires that a landlord inspect for children residing in units at least once per year and more when in the exercise of reasonable care: a) he has actual or constructive knowledge of a condition reasonably foreseeable to cause a hazard; b) a tenant complains about an apartment condition or; c) the Department of Health issues an Order to Abate. If the tenant states that there are no children residing in the dwelling and the landlord does not otherwise have notice, the presumption does not apply in lead poisoning litigation. Local Law 1 of 2004 also obligates an owner of residential property erected between 1960 and 1978 in which a child(ren) of applicable age reside(s) to inspect for hazardous conditions (defined above), if he “has actual knowledge of the presence of lead-based paint.”  A landlord’s violation of either the 1982 or the 2004 law does not result in absolute liability for injuries caused by exposure to lead. In order to prove liability, a complainant must establish that the owner had actual or constructive knowledge of a hazardous condition for such a period of time that in the exercise of reasonable care, he should have remedied it, that the owner did not take reasonable steps to remedy that condition, and that the condition proximately caused the child’s injuries.

In the case of Martinez-Dela Rosa v. New Matthews Avenue LLC., et al, (Supreme Court, Bronx County; Index No.: 0350517/07; Judge Robert E. Torres), plaintiffs claimed that the infant resided in defendant’s multiple dwelling and that she sustained blood lead levels as high as 31 mg/dL when she was about 4 and 1/2 years old. The timing of the relevant events was such that Local Law 1 of 2004 applied. The Kardisch Law Group represented the landlord and sought summary judgment (dismissal before trial) on the grounds that the building was erected after 1960, that the rebuttable presumption did not apply, and that defendant did not otherwise have actual or constructive notice that there was a hazardous lead paint condition within the child’s apartment.

The infant’s mother (the adult plaintiff) testified that the landlord had painted the apartment at the tenancy’s inception (less than one year before the child displayed elevated blood lead levels), that the unit was in and remained in “good condition” until the date of diagnosis, that there was no peeling paint when the DOH inspected, that the owner rectified all complaints within two or three days, and that she had never seen the infant ingesting paint particles. The summary judgment submissions also showed that the building was “well-maintained,” that the landlord “actively managed,” painted each unit upon vacancy and every three years, and rectified paint-disturbing conditions within 48 hours of complaint. Neither the DOH nor the bank which held the mortgage found any hazardous conditions before the child tested positive. The owner first learned of a problem when he received the DOH’s October 16, 2006 Order to Abate (based on 258 samples, only three of which yielded slightly elevated lead readings), and he remediated the unit immediately.

The Court granted KLG’s motion and dismissed the case against the owner. In so doing, the Judge noted that plaintiffs could not invoke the lead presumption to establish notice because the subject premises were built after 1960. The Court also pointed out that since the landlord did not have “actual knowledge of the presence of lead-based paint,” he did not have a duty to inspect for peeling (i.e., the hazard). Under all applicable circumstances, Judge Torres held, the landlord acted reasonably and fulfilled his duties under the law.

Local Law 1 places a huge burden on the owners of multiple dwellings within the City of New York. But if the landlord or his attorney reviews the law carefully and in light of the salient facts, he/she may find grounds to get a lead poisoning lawsuit dismissed.