Opinion
2006-1298 K C, 2006-1298 K C.
Decided October 27, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Karen B. Rothenberg, J.), entered January 17, 2006. The judgment, upon a jury verdict, awarded plaintiff Rafael Ventura the principal sums of $22,500 for past pain and suffering, $251,000 for future pain and suffering, $45,000 for tutoring and $5,250 for higher level counseling, and awarded plaintiff Caesar Ventura the principal sums of $40,000 for past pain and suffering, $802,000 for future pain and suffering, $160,000 for tutoring, $12,000 for higher level counseling, $9,000 for future medical monitoring and $185,000 for loss of future earnings. The appeal from the judgment brings up for review a prior order of the same court (Sarah L. Krauss, J.), dated August 13, 2003, which denied defendant's motion for summary judgment.
Judgment modified by deleting the provisions thereof awarding damages to plaintiffs Rafael Ventura and Caesar Ventura for future pain and suffering, and a new trial is granted with respect to those items only; as so modified, affirmed without costs, unless within 30 days after service upon plaintiffs of a copy of the order entered hereon, with notice of entry, plaintiffs shall serve and file in the office of the Clerk of the New York City Civil Court, Kings County, a written stipulation consenting to reduce the award to plaintiff Rafael Ventura for future pain and suffering to the principal sum of $120,000; and to reduce the award to plaintiff Caesar Ventura for future pain and suffering to the principal sum of $400,000; and to the entry of an amended judgment in favor of plaintiff Rafael Ventura in the principal sum of $192,750 and in favor of plaintiff Caesar Ventura in the principal sum of $806,000, accordingly; in the event that the plaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
Plaintiffs, two infants and their mother, brought this action in Supreme Court against defendant landlord alleging that the infant plaintiffs were injured as a result of their exposure to lead-based paint in the subject apartment. The matter was transferred to the New York City Civil Court pursuant to CPLR 325 (d).
As a preliminary matter, we note that there is no controlling legislation in this lead-paint negligence case. Article 14 of the Administrative Code of the City of New York, entitled "Lead Poisoning Prevention and Control," is inapplicable to this case because it applies only to multiple dwellings ( see Administrative Code § 27-2056.1), as did its predecessors ( e.g. Administrative Code § 27-2013 [h]; see also Chapman v Silber, 97 NY2d 9, 19 n 4 [2001]; Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 638).
However, even in the absence of explicit legislation authorizing the imposition of a duty to test for or abate lead-based paint, "a landlord still may be liable for negligence under traditional common-law principles" ( Chapman, 97 NY2d at 20). A landlord may be held liable for injury caused by a defective or dangerous condition if the landlord is under a "duty to maintain the premises in repair and reserves the right to enter for inspection and repair" ( Juarez, 88 NY2d at 642). The burden is on the plaintiff to prove that a dangerous condition existed on the premises ( id.). The plaintiff must then prove that the landlord had notice of the condition and that the landlord had a reasonable opportunity to repair it ( id.).
Defendant argues on appeal that the lower court erred in denying his motion for summary judgment. A defendant-movant's burden on a motion for summary judgment is to demonstrate that the cause of action has no merit (CPLR 3212 [b]). We find that defendant failed to demonstrate, by submitting proof in admissible form, that he had no prior actual or constructive notice of the dangerous lead-paint condition ( see Vidal v Rodriguez, 301 AD2d 517, 518).
Defendant further argues that, following the trial, the court should have directed a verdict for defendant. We disagree. The record contains evidence from which the jury could have rationally concluded that the subject apartment contained a lead-paint hazard, that defendant had constructive notice of this hazard and that the infant plaintiffs were injured as a result of the lead-paint hazard ( see Padilla v Jols Realty Corp., 284 AD2d 512; see also Cohen v Hallmark Cards, 45 NY2d 493, 499). Moreover, the verdict on the issue of liability in the infant plaintiffs' favor was not against the weight of the evidence ( see Padilla v Jols Realty Corp., 284 AD2d 512, supra; Nicastro v Park, 113 AD2d 129, 133).
With respect to the issue of damages, we find that the damage awards were excessive to the extent indicated ( see CPLR 5501 [c]; Hiraldo v Khan, 267 AD2d 205).
Defendant's remaining contentions are without merit.
Weston Patterson, J.P., and Rios, J., concur.
Golia, J., concurs in part and dissents in part in a separate memorandum.
Golia, J., concurs in part and dissents in part, and votes to reverse the judgment and remand the matter for a new trial.
My dissent is predicated upon what I find to be numerous inconsistencies that are in the record.
The infant plaintiffs by their mother, and their mother individually, commenced this action seeking damages for "lead paint negligence" against their landlord. The subject building, having less than three residential housing units, does not constitute a multiple dwelling ( see Administrative Code of City of NY § 27-2004 [a] [7]). Consequently, the subject building is not controlled by the specific provisions of the "Lead Poisoning Prevention and Control Act" ( see Administrative Code § 27-2056.1).
The significance of this finding, as acknowledged by the majority, is that defendant landlord is not "presumed" as a matter of law to have notice of the dangerous condition concerning lead paint. The burden is therefore on plaintiffs to prove such notice, either actual or constructive, by a fair preponderance of the credible evidence. This proof must be established in conjunction with all necessary requirements of proving a negligence action. The penultimate question then is whether defendant acted negligently in failing to repair or in making repairs in a negligent manner and, if either is so, was that negligence a proximate cause of plaintiffs' injuries.
In order to reach a determination as to defendant's negligence, the jury must be presented with credible evidence as to whether defendant had actual or constructive notice of the alleged dangerous condition in sufficient time to remedy that condition prior to the infant plaintiffs becoming injured.
The Court of Appeals, in Chapman v Silber ( 97 NY2d 9, 15), stated that a plaintiff in a lead poisoning case which does not fall within the protection of the "Lead Poisoning Prevention and Control Act," must prove 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."
When faced with the confluence of these circumstances, a landlord is then obligated to ameliorate this dangerous condition.
With respect to items numbered 1 and 5, there is no issue here as to the fact that defendant retained the "right of entry" in order to make repairs and did, in fact, make certain repairs to the subject premises. In addition, it is uncontested that defendant was aware that there were young children in the subject premises.
The question which needs to be resolved is when defendant became knowledgeable of the hazards of lead paint and when he became aware that the paint was peeling in the subject premises.
As regards defendant's knowledge of the hazards of lead paint, the evidence that was presented to establish that he knew of such hazards in a sufficient amount of time to have corrected them is confusing and needs to be made clear.
Defendant, whose conversing language was not English, was deposed through an interpreter on March 2, 1998 by plaintiffs' attorney concerning his knowledge of lead-based paint. A careful review of the transcript will reveal that the individual who transcribed the stenographic minutes inserted the number 1 as in "1991," whereas the number "5" as in 1995, was transcribed in another area of the transcript. This "error" was apparently noted by defendant in a correction sheet which defendant sought to place into evidence during the trial but was precluded by the court from doing so. Although I do not find that the lower court ruled improperly, I do find that it was improvident of the trial court to allow that "typographical error" to stand. Especially when it provided inappropriate and misleading information for such a pivotal issue.
Clearly, it is an uncontested fact that the plaintiff family did not move into the subject premises until November 1, 1992. At that time, the family consisted of the mother and her son, Rafael, who was born in another country on November 1, 1988. Her second son, Caesar, was born during the tenancy on June 30, 1993. These dates are vital when one considers the following excerpt from the deposition of defendant, who was being questioned as to when he first learned that the infant plaintiffs had elevated levels of lead in their blood:"
Q. Now, you stated earlier that you first became aware of the infant poisoning, you believe, in April 1991? (Emphasis added) A
. Yes. Q
. How exactly did you become aware back in April of 1995? (Emphasis added) A
. The law firm of Fitzgerald and Fitzgerald sent a bunch of papers. . . . ."
The clear meaning of that interchange can only be sensible if the two April dates were one and the same. It was either April 1991 or April 1995.
We know, however, that it could not have been April 1991 inasmuch as the family did not move into the apartment until November 1992 and Caesar was not even born until June 1993. Of equal importance in searching for the truth at trial is the fact that defendant's knowledge is tied to receiving a "bunch of papers" from a certain law firm. Presumably, those papers were not sent two years prior to the birth of Caesar, one of the infant plaintiffs.
The confusion as to important dates was further borne out when defendant was questioned about when he first learned of the dangers of lead paint:"
Q.Has there ever come a time when you became aware of the dangers of lead-based paint? A
. Only when I got the summons from them. Q
.Did there ever come a time when you knew what lead-based paint was? A
. I began to read about it. Q
. When? A
. I don't remember. Q
. Was it prior to 1990? A
. No. Q
. Was it prior to 1995? A
. I don't remember exactly. Q
. When did you start to read about lead paint? A
. Ask again. Q
. When did you begin to read? A
. I asked the City for a booklet about it. Q
. Do you recall the name of the booklet? A
. No. Q
.Do you recall approximately when you requested this booklet from the City? A
.Somewhere between April 1991 and April 1996. (Emphasis added)"
A careful reading of this exchange shows that the only thing which is clear is that it is unclear as to when defendant learned about the dangers of lead paint. For anyone, especially the trial jurors, to pick a date would be purely speculative.
This confusion continues throughout the record.
Defendant's deposition as to when he learned of peeling paint in the subject premises is also fraught with much confusion. Was it in 1994, as that date appeared in the record or was it prior to that date? It is simply not clear, and for the jury to rule otherwise would again be purely speculative.
In addition, there are a myriad of other circumstances which were never clearly developed in the trial. For example, Dr. Tsai testified that the clinic lost the original test slip that was a record of the lead levels in one of the infant plaintiffs' blood. Nevertheless, he surprisingly produced a copy of that document at trial. It is also interesting to note that the Department of Health has no records in their files concerning the lead levels of either plaintiff.
Further, plaintiffs also produced a doctor's prescription pad with the name of one of the infant plaintiffs and a note that appears to list certain numerical findings of lead in that plaintiff's blood. This finding was not contained in the doctor's chart on this patient. It also seems unusual that this doctor uses his prescription pad in place of a medical chart or report to record his findings.
Indeed, the jury was also faced with another perplexing and confusing situation. That is the fact that the lead levels in Caesar's blood dropped steadily from a high of "10mcg" in 1994, when this lawsuit was commenced, to a low of "3mcg" in January 1997. It is certainly understandable that Caesar's mother would protect her child from ingesting lead paint in the subject premises once she learned of the problem, as she did prior to commencing the lawsuit in 1994. What is unexplained and confusing is the fact that between January 1997 and June 1997 the lead levels in Caesar's blood jumped from "3mcg" to "7mcg" in that six-month period. The question is whether or not the source of this lead poisoning came from the subject premises or from some other source, or both. Again, requiring the jury to speculate.
Indeed, if the jury had heard from defendant's expert, who was precluded from testifying, such testimony could have resolved some of these issues.
Examining this case under the totality of circumstances, including the fact that the infant plaintiffs' father had scraped the "old" paint and then repainted the premises with "new" paint provided by defendant on a number of occasions, and that at certain intervals of time the infant plaintiffs resided with their grandmother, I find that the above, as well as a number of other anomalies, require that the judgment be set aside and the matter remanded to the lower court for a new trial.