Opinion
No. 228021.
2012-03-26
Melissa VAN WERT, Plaintiff, v. Elizabeth RANDALL and Randall Properties, Defendants.
Athari & Associates, L.L.C., (Mo J. Athari, Esq., of Counsel), Utica, for Plaintiff. Horigan, Horigan, & Lombardo, P.C., (Peter M. Califano, Esq., of Counsel), Amsterdam, for Defendants.
Athari & Associates, L.L.C., (Mo J. Athari, Esq., of Counsel), Utica, for Plaintiff. Horigan, Horigan, & Lombardo, P.C., (Peter M. Califano, Esq., of Counsel), Amsterdam, for Defendants.
CHRISTIAN F. HUMMEL, J.
Plaintiff has moved for a judicial subpoena duces tecum for production of certified records from the County of Rensselaer Health Department
; an order granting admission at trial of certified documents, those being 1991 CDC; 2002 CDC; 2006 CDC; 2006 EPA; and 2007 ATSDR, as well as an order giving judicial notice to 42 USC § 4851; PHL § 1370–6; RPL 235–b; 10 NYCRR § Part 67; and CSFP 731; a protective order preventing defendants' attorneys and experts from making speculative arguments or providing testimony regarding alternative, superseding or intervening causes of plaintiff's alleged injuries; an order granting plaintiff partial summary judgment against the defendants on the issue of negligence in this action to recover for alleged injuries from childhood exposure to lead; and an order pursuant to CPLR 3211(b) dismissing defendants' first, second, and third affirmative defenses.
Defendants do not object to the issuance of the subpoena, and the same has been signed and returned to plaintiff's counsel.
With the exception of plaintiff's request for the subpoena, plaintiff's motion must be rejected. Plaintiff improperly attempts to introduce evidence and obtain rulings without showing that the evidence or orders are relevant to plaintiff's case. Plaintiff improperly attempts to preclude defendants from defending themselves without plaintiff's first demonstrating that the requested relief is proper or that the evidence and arguments plaintiff seeks to preclude are irrelevant or improper. Plaintiff improperly attempts to obtain summary judgment of liability without meeting her initial burden of proof.
Plaintiff first seeks the Court's permission to admit certain public records under CPLR § 4540. These include three Center for Disease Control reports, a report from the Environmental Protection Agency, and a report from Agency for Toxic Substances and Disease Registry. While CPLR § 4540 does allow self-authentication of certified copies of public records, there must be a demonstration by plaintiff that the documents are relevant and an exception to the hearsay objection, neither of which has been demonstrated here. When a proper foundation is made, the trial court can deal with this request.
Plaintiff next requests that the Court take judicial notice of certain statutes pursuant to CPLR § 4511. When a Court is asked to take judicial notice, there is the implication that the statute or regulation is applicable to the case before it. Plaintiff has failed to establish how and why the statutes are relevant. When a proper foundation is made, the trial court can deal with this request.
Plaintiff next moves pursuant to CPLR § 3103(c) for a protective order which she describes as “precluding defendant's attorneys and expected hired experts from making arguments or providing testimony regarding any speculative alternative, superseding, or intervening cause surmise.” CPLR § 3101 does not provide for that relief.
CPLR § 3101(a) provides that there “shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The words “material and necessary” are interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406 [1968];Osowski v. AMEC Constr. Mgt., Inc., 69 AD3d 99, 106 [1st Dept., 2009] ).
CPLR § 3103(a) permits the Court to issue protective orders “denying limiting, conditioning or regulating the use of any disclosure device” for the purpose of preventing “unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or the court.” CPLR § 3103(c) provides that: “If any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed.”
Plaintiff's motion for a protective order pursuant to CPLR § 3103(c) must be denied. Plaintiff has failed even to suggest that defendants obtained any disclosure improperly or irregularly, much less specify what material was improperly disclosed, or explain how any of plaintiff's substantial rights have been prejudiced as a result of purported disclosure of the unspecified material.
Plaintiff's request for a protective order appears to be an impermissible effort to dodge the requirements for a proper motion in limine. A motion in limine is used to obtain a preliminary order before or during trial excluding the introduction or limiting the use of anticipated inadmissible, irrelevant, immaterial, and/or unduly prejudicial evidence at trial (Matter of PCK Dev. Co., LLC v. Assessor of Town of Ulster, 43 AD3d 539 [3rd Dept., 2007]; State of New York v. Metz, 241 A.D.2d 192, 198 [1st Dept., 1998]; Caster v. Increda–Meal, Inc., 238 A.D.2d 917, 918 [4th Dept., 1997]; Passino v. DeRosa, 199 A.D.2d 1017, 1017 [4th Dept., 1993] ) or precluding a party from submitting evidence in violation of some other restriction (Matter of Murtlow, 258 A.D.2d 686, 687 [3rd Dept., 1999]; Siewert v. Loudenville Elementary School, 210 A.D.2d 568, 569 [3rd Dept., 1994] ).
While a successful pretrial motion in limine offers the dual advantages of eliminating evidence without the jury becoming aware of it and promoting judicial economy by avoiding the time spent considering objections at trial, the movant bears an added burden before he or she obtains that relief. Unlike the procedure for challenging evidence during trial, one who makes a motion in limine may not simply object to the introduction of evidence and thereby shift the burden of establishing its admissibility. The movant must first meet the burden of establishing that the evidence he or she seeks to exclude is actually inadmissible, irrelevant, immaterial, and/or unduly prejudicial, before the opponent is called upon to justify introduction of the evidence.
Plaintiff has failed to identify any particular evidence that defendants propose to introduce or the exact limits of the evidence that plaintiff seeks to preclude through this proposed order. Evidence regarding “alternative, superseding, or intervening causes” is very broad. The order barring “speculative” evidence that plaintiff proposes would also be so vague that it would lend itself to abuse in the form of plaintiff's objecting to the introduction of any and all pieces of evidence regarding alternative, superseding, or intervening causes of plaintiff's alleged injuries.
The proposed order is also objectionable because it would save no time at trial and serve no valid purpose. An order barring “speculative” evidence is so vague that a fresh inquiry would be required into whether any particular piece of evidence introduced at trial was actually “speculative.”
The Court also notes that an order barring the introduction of evidence regarding alternative, superseding, or intervening causes of plaintiff's alleged injuries is facially improper. Defendants are entitled to dispute causation or the existence of a plaintiff's alleged injuries by presenting alternative, superseding, or intervening explanations for plaintiff's injuries and the symptoms that a plaintiff presents as evidence of her injury. For example, defendants are entitled to present evidence that a plaintiff's alleged symptoms are actually the result of other factors, such as social and environmental circumstances of the plaintiff's upbringing (Cunningham v. Anderson, 85 AD3d 1370, 1374 [3rd Dept., 2011] ), inherited disorders, and/or voluntary behaviors (Cooper v. County of Rensselaer, 182 Misc.2d 487, 490 [1999] ). Plaintiff's failure to meet her initial burden in support of in limine relief, requires that her pseudo-motion in limine be denied.
The Court next turns to plaintiff's motion pursuant to CPLR 3211(b) to dismiss defendants' first, second, and third affirmative defenses. CPLR 3211(b) provides that a party may move to dismiss one or more defenses on the ground that a defense “is not stated or has no merit.” Plaintiff, as the movant, is required to establish that each defense is without merit (Metz v. State of New York, 86 AD3d 748, 752 [3rd Dept., 2011]; Greco v. Christoffersen, 70 AD3d 769, 771 [2nd Dept., 2010] ). All of the defendants' allegations must be deemed to be true and defendants are entitled to all reasonable inferences to be drawn from the submitted proof (Metz v.. State of New York, 86 AD3d 748, 752 [3rd Dept., 2011]; Capital Tel. Co. v. Motorola Communications & Elecs., 208 A.D.2d 1150, 1150 [3rd Dept., 1994]; Grunder v. Recckio, 138 A.D.2d 923, 923 [4th Dept., 1988] ). Thus, regardless of whether the motion to dismiss is based on lack of legal basis or lack of substantial merit, the movant bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained.
Plaintiff's argument for dismissing defendants' first affirmative defense may be rejected out of hand because it carefully avoids addressing the legitimate aspects of defendants' defense. Defendants' first affirmative defense is “That the alleged injuries and resultant damages, if any, were caused by the contributory negligence, assumption of risk and culpable conduct on the part of the plaintiff and a third person, or persons, and without any negligence, carelessness or culpable conduct on the part of the defendants contributing thereto.” Given the allegation that defendants did not contribute to plaintiff's injuries, plaintiff's counsel is completely mistaken in equating the defense with a counterclaim for contribution based on a parent's negligent failure to supervise the infant plaintiff or the infant plaintiff's being held responsible for her own negligence.
Plaintiff is also mistaken in suggesting that there is a complete bar against defendants referring to “parental negligence.” Parents' negligent failure to supervise a child is “generally” unavailable to defendants as a basis for seeking contribution, but there are numerous cases in which parental negligence may be used such as in cases where the specific danger is imminent and patently foreseeable or the parent is made aware of the danger that their infant faces, but takes steps that expose the child anyway (Cooper v. County of Rensselaer, 182 Misc.2d 487, 491, 492 [1999] ). Defendants are entitled to defend themselves by showing that the injuries that a plaintiff allegedly suffered were caused by his or her parents' affirmatively creating or exacerbating the conditions that harmed him or her (Cunningham v. Anderson, 66 AD3d 1207, 1209 [3rd Dept., 2009]; M.F. v. Delaney, 37 AD3d 1103, 1105 [4th Dept., 2007]; Cooper v. County of Rensselaer, 182 Misc.2d 487, 492 [1999] ). Thus, where lead paint is alleged to be the source of injury, a defendant is entitled to defend by showing that a parent changed or otherwise damaged the paint and thereby caused the alleged lead exposure, or exposed the infant plaintiff to lead paint conditions elsewhere, exposed the infant plaintiff to other lead sources, and/or negligently attempted to remediate, remove and/or maintain the premises (M.F. v. Delaney, 37 AD3d 1103, 1105 [4th Dept., 2007]; Ward v. Bianco, 16 AD3d 1155 [4th Dept., 2005] ). Similarly, defendants are entitled to defend by showing that a parent was warned that their child had dangerously high lead levels, was informed regarding the potential sources of lead poisoning in the plaintiff's dwelling and the preventive steps that should be taken to stop the lead poisoning, and then failed to take the preventive steps and obstructed the defendant from remedying the lead hazard (Cooper v. County of Rensselaer, 182 Misc.2d 487, 492 [1999] ).
While a parent's mere negligence may not be imputed to his or her child and very young children are not held responsible for their own negligence, those rules are not a substitute for and do not eliminate a plaintiff's burden of establishing that the defendant actually caused the injury complained of (Cunningham v. Anderson, 85 AD3d 1370, 1373 [3rd Dept., 2011]; Cooper v. County of Rensselaer, 182 Misc.2d 487, 490 [1999] ). Thus, even defendants who are negligent in a way that could have caused an infant plaintiff's injuries are entitled to defend themselves by presenting evidence showing that an infant plaintiff's injuries preexisted the relevant period or were the result of parental neglect prior to the relevant period (Cooper v. County of Rensselaer, 182 Misc.2d 487, 490 [1999] ). Defendants are also entitled to defend themselves by showing that an infant plaintiff's injuries were caused by the actions of others, including the child or a parent, and regardless of whether that conduct is negligent (Martinez v. Lazaroff, 48 N.Y.2d 819, 820 [1979];Cunningham v. Anderson, 85 AD3d 1370, 1373–1374 [3rd Dept., 2011] ). A defendant who has been negligent in dealing with lead hazards presented by paint is clearly entitled to challenge causation by showing that the infant plaintiff ingested other lead-containing substances during the relevant time periods, even though the alternate lead sources were ingested in the parent's presence (Cunningham v. Anderson, 85 AD3d 1370, 1372, 1374 [3rd Dept., 2011]; M.F. v. Delaney, 37 AD3d 1103, 1105 [4th Dept., 2007] ).
The rules limiting defendants' use of parents' and infants' negligence do not impose on defendants a new duty to the child that does not otherwise exist and do not expand the scope of a defendant's existing duty (Vaughan v. Saint Francis Hosp., 29 AD3d 1133, 1136 [3rd Dept., 2006] ). Thus, defendants are clearly entitled to defend themselves by showing that they owed no duty to an infant plaintiff or that they did not breach any duty that they did owe to an infant.
Plaintiffs are also not absolved of all responsibility simply because they were once very young. A plaintiff can in fact be held accountable for pre-teen and teenage misconduct, such as discontinuing prescribed medication, failing to attend school, where the misconduct constituted a failure to mitigate damages at a time when plaintiff could be held legally responsible for his or her actions (Cunningham v. Anderson, 85 AD3d 1370, 1372 [3rd Dept., 2011]; Cooper v. County of Rensselaer, 182 Misc.2d 487, 490 [1999] ).
Plaintiff's requests to dismiss the second and third affirmative defenses must also be denied because they depend on plaintiff's counsel's unsupported statements of fact regarding matters of which counsel has no personal knowledge.
Finally, the Court considers plaintiff's motion pursuant to CPLR 3212 for partial summary judgment of liability against the defendants. As movant for summary judgment, plaintiff bears the initial burden to establish a prima facie showing of entitlement to judgment as a matter of law and to tender sufficient evidence to eliminate any material issues of fact from the case (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ). Plaintiff's summary judgment motion must be rejected because it rests on two incorrect notions. Plaintiff is incorrect in assuming that Real Property Law § 235–b creates a nondelegable duty for landlords to keep their premises free of lead or that defendants as landlords in the City of Troy were subject to same obligations as the Administrative Code of the City of New York has been found to impose on landlords in New York City, that being the obligation to search out and remedy lead hazards in their apartments (Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628 [1996] ). In point of fact, until the legislature acts to hold landlords liable for the mere presence of lead-based paint regardless of their knowledge, landlords are not liable for lead poisoning resulting from a defective condition upon their premises unless the plaintiff demonstrates 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 (Chapman v. Silber, 97 N.Y.2d 9, 15 [2001];Cunningham v. Anderson, 85 AD3d 1370, 1371 [3rd Dept., 2011]; Wynn v. T.R.I.P. Redevelopment Assoc., 296 A.D.2d 176, 180 [3rd Dept., 2002] ).
In the absence of proof that an out-of-possession landlord had actual notice of the existence of a hazardous condition caused by a lead-based paint being used on the landlord's premises, a plaintiff can establish that the landlord had constructive notice of that condition by showing “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before 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 that a young child lived in the apartment” (Chapman v. Silber, 97 N.Y.2d 9, 15 [2001];Cunningham v. Anderson, 85 AD3d 1370, 1371 [3rd Dept., 2011]; Charette v. Santspree, 68 AD3d 1583, 1584–1585 [3rd Dept., 2009] ).
Plaintiff has failed to present evidence establishing that the premises were hazardous at the time that plaintiff entered them. Plaintiff has failed to establish that there was any chipping or peeling paint at the time that plaintiff first entered either of defendants' apartments. Plaintiff has failed to establish that the landlord was aware that paint was chipping or peeling on the premises during the tenancy. Plaintiff has failed to establish that defendants were informed after plaintiff became a resident of any chipping or peeling paint in the apartments occupied by plaintiff or that defendants failed to remedy the problem after being notified. Plaintiff has failed to establish that defendant landlords retained a right of entry to the premises and assumed a duty to make repairs during the tenancy. Plaintiff's failure to make the initial showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ).
Even assuming for the purposes of the argument that plaintiff had met her initial burden, defendants have raised triable issues. Plaintiff claims that defendants' premises were the cause of plaintiff's elevated lead levels, that as an infant plaintiff was particularly susceptible to the toxic effects of lead, and that those elevated lead levels during the infant plaintiff's tenancy were the cause of the injuries she claims to have suffered in later life. Defendant points out that plaintiff's counsel carefully omitted the very damaging information that plaintiff had an elevated lead level of 18 µg/dl prior to her first becoming a tenant in any of defendants' apartments. The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and to determine whether there is any triable issue of fact (Matter of Suffolk DSS v. James M., 83 N.Y.2d 178, 182 [1994];Simpson v. Simpson, 222 A.D.2d 984, 986 [3rd Dept., 1995]; Boyce v. Vazquez, 249 A.D.2d 724, 725 [3rd Dept., 1998] ). Were the Court to assess whether defendants raised triable issues, the Court would find that defendants have clearly met their burden of showing facts sufficient to require a trial on issues of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).
Accordingly, with the exception of the subpoena which has been signed, plaintiff's motion is denied.