Christopher Hamilton, Appellant,v.John Miller et al., Respondents.BriefN.Y.May 7, 2014 To be argued by: Mo Athari, Esq. Time Requested: 15 Minutes SUPREME COURT OF THE STATE OF NEW YORK COURT OF APPEALS CHRISTOPHER HAMILTON, Plaintiff/Appellant, -against- Index #: 09-9673 COA NO.: APL-2013-00182 JOHN MILLER, DAVID MILLER, JULES MUSINGER, DOUG MUSINGER AND SINGER ASSOCIATES, Defendants/Respondents, PLAINTIFF APPELLANT’S BRIEF ATHARI & ASSOCIATES, LLC WARD GREENBERG HELLER Attorneys for Plaintiff/Appellant Hamilton & REIDY, LLP Mo Athari, Esq. Attorneys for Defendants/Respondents 258 Genesee Street - 6 th Floor Singer Associates & Musinger Utica, NY 13502 Attn: Thomas E. Reidy, Jr., Esq (315) 733-9820 300 State Street, Suite 600 (315) 733-9821(f) Rochester, NY, 14614 (585) 454-0726 (585) 231-1910(f) SLIWA & LANE Attorneys for Defendants Miller Attn: Stanley J. Sliwa, Esq. 237 Main Street, Suite 840 Buffalo, NY 14203-2715 (716) 853-2050 (716) 853-2057(f) Dated: August 20, 2013 i TABLE OF CONTENTS JURISDICTIONAL STATEMENT ...................................................................................... 1 QUESTION PRESENTED ................................................................................................ 1 PRESERVATION AND STANDARD OF REVIEW ............................................................... 1 PRELIMINARY STATEMENT .......................................................................................... 2 STATEMENT OF FACTS AND PROCEDURE ..................................................................... 3 ARGUMENT ................................................................................................................. 5 POINT I JUDICIAL NOTICE OF 42 USC §4851 AFFORDS THE NON SUI JURIS PLAINTIFF INJURED BY LEAD POISONING THE NECESSARY REBUTTABLE PRESUMPTIONS ...................................................................................... ........ 5 POINT II PLAINTIFF WAS ENTITLED TO A PROTECTIVE ORDER AS PLAINTIFF HAS ALREADY MADE A PRIMA FACIE CASE OF CAUSATION AS A MATTER OF LAW ................................................................................................................ 11 POINT III PLAINTIFF’S PARTICULARS WERE SUFFICIENT TO PLACE THE LANDLORD DEFENDANTS ON NOTICE TO PROPERLY PREPARE A DEFENSE ...................... 15 CONCLUSION ............................................................................................................. 18 CASES Adams v. Rizzo, 13 Misc. 3d 1235(A) (N.Y. Sup. Ct. 2006) ..............................6, 13 Chapman v. Silber, 97 N.Y.2d 9 (N.Y. 2001) ........................................................... 8 Ciriello v. Virgues, 156 A.D.2d 417 (N.Y. App. Div. 2d Dep't 1989) ....................21 ii Davidson v. Steer/Peanut Gallery, 277 A.D.2d 965 (N.Y. App. Div. 4th Dep't 2000) .....................................................................................................................21 DeMatteo v. DeMatteo, 194 Misc. 2d 640 (N.Y. Sup. Ct. 2002) .............................. 9 Diamantstein v. Friedman, 199 A.D.2d 458 (N.Y. App. Div. 2d Dep't 1993) ........20 Dorato v. Schilp, 130 A.D.2d 348 (N.Y. App. Div. 3d Dep't 1987) .......................20 Figueroa v. 242-246 Bradhurst Holding LLC, 2011 NY Slip Op 32845U, 2011 N.Y. Misc. LEXIS 5152 (N.Y. Sup. Ct. Oct. 12, 2011)......................................... 5 Gayle v. City of New York, 92 N.Y.2d 936 (N.Y. 1998) ........................................14 Graves v. County of Albany, 278 A.D.2d 578 (N.Y. App. Div. 3d Dep't 2000) ....19 Hoenig v. Westphal, 52 N.Y.2d 605 (N.Y. 1981) ...................................................20 Hunter v. New York, O. & W. R. Co., 116 N.Y. 615 (N.Y. 1889) .........................12 Jakubowski v. Lengen, 86 A.D.2d 398 (N.Y. App. Div. 4th Dep't 1982) ...............19 Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628 (N.Y. 1996) ...... 14, 16 Kelly v. Tarnowski, 213 A.D.2d 1054 (N.Y. App. Div. 4th Dep't 1995) ...............21 Kush v. Buffalo, 59 N.Y.2d 26 (N.Y. 1983) ............................................................17 Lipin v. Bender, 84 N.Y.2d 562 (N.Y. 1994) ..........................................................19 Matter of William A., 13 Misc. 3d 367 (N.Y. Sup. Ct. 2006) .................................10 N.Y. City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (N.Y. 2003) .....................................................................................................................16 Nawrocki v. Coastal Corp., 45 A.D.3d 1341 (N.Y. App. Div. 4th Dep't 2007) ......15 O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521 (N.Y. 1988) ..............................21 Pagan v Rafter, 969 N.Y.S.2d 265 (N.Y. App. Div. 4th Dep't 2013) ....................... 9 iii Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (N.Y. 2006) ..................................... 11, 15 People v. Wesley, 83 N.Y.2d 417 (N.Y. 1994) ...................................................6, 11 Pierson v. Yourish, 122 A.D.2d 202 (N.Y. App. Div. 2d Dep't 1986) ....................21 Rivera v. New York, 11 N.Y.2d 856 (N.Y. 1962) ...................................................17 Robinson v Bartlett, 95 A.D.3d 1531 (N.Y. App. Div. 3d Dep't 2012) ..............8, 14 Sleasman v. Sherwood, 212 A.D.2d 868 (N.Y. App. Div. 3d Dep't 1995) .............12 Van Wert v Randall, 100 A.D.3d 1079 (N.Y. App. Div. 3d Dep't 2012) ................. 9 Viemeister v. White, 179 N.Y. 235 (N.Y. 1904) ....................................................... 9 Walton v. Albany Community Dev. Agency, 279 A.D.2d 93 (N.Y. App. Div. 3d Dep't 2001) .......................................................................................................5, 15 Williamsburg Around the Bridge Block Ass'n v. Giuliani, 223 A.D.2d 64 (N.Y. App. Div. 1st Dep't 1996) .....................................................................................16 STATUTES AND REGULATIONS 42 USC §4851 .................................................................................................. passim 42 USC §4852 ........................................................................................................7, 8 CPLR §3101(a) (d) ...................................................................................... 19, 20, 22 CPLR §3102(a) ........................................................................................................19 CPLR §3103(a) ................................................................................................. 17, 22 CPLR §3121 (a) (b)..................................................................................... 19, 20, 22 CPLR §3124 .................................................................................................... 1, 3, 22 CPLR §3212 .............................................................................................................22 PHL §1376 (6) ........................................................................................................... 3 iv PHL §1370 (6) ........................................................................................................... 6 10 NYCRR 67-1.1 (d) (e) .......................................................................................... 6 22 NYCRR 202.17 (b)(1) ........................................................................ 1, 3, 20, 22 SECONDARY SOURCES Karger, The Powers of the New York Court of Appeals §16:4, p. 579 (3d ed. (2005) ....................................................................................................................18 Pattern Jury Instructions 2:70 ........................................................................... 13, 15 1 JURISDICTIONAL STATEMENT Plaintiff commenced this action seeking damages from the landlord defendants caused by exposure to lead (R. 20-35). 1 Defendant-Respondents Jules Musinger, Doug Musiner and Singer Associates (collectively “Singer”) moved and Defendant-Respondent John Miller and David Miller (collectively “Miller”) cross- moved the IAS Court seeking relief pursuant to CPLR §3124 and 22 NYCRR 202.17(b)(1) (R. 120-121, 176-177). Plaintiff-Appellant Hamilton opposed these moves and cross-moved for Judicial Notice (CPLR Rule 4511) of 42 USC §4851 and for a protective Order (CPLR §3103) (R. 181). The IAS Court granted the relief requested by the defendants and denied the relief requested by plaintiff (R. 8- 9). On appeal, the Appellate Division affirmed (R. 1563). Plaintiff-appellant then sought leave from the Fourth Department for leave which granted the request upon the opinion that a question of law had arisen that ought to be reviewed by the Court of Appeals on the following certified question (R. 1560): QUESTION PRESENTED Q: Was the Order of this Court entered May 3, 2013 properly made? PRESERVATION AND STANDARD OF REVIEW There was preservation of the question of law presented here. Supreme Court (Rosenbaum, J.) (R. 8-9) compelled plaintiff to “produce a medical report or 1 The Records on Appeal contains three volumes and is hereinafter referenced as “R.”. 2 reports of a treating or examining medical service provider detailing a diagnosis of any injuries alleged to have been sustained by the plaintiff”, “causally relating said injuries to plaintiff‟s alleged exposure to lead based paint”, amending “the Bill of Particulars”, and “in the event” “plaintiff fails to produce the aforementioned report or reports” precluding plaintiff “from introducing proof concerning injuries alleged to have been sustained by plaintiff” (R. 8). The Order further denied (R. 9) plaintiff‟s cross-motion seeking “judicial notice” of “42 USC §4851” and for a “protective Order” (R. 181). The Fourth Department relied upon precedent (R. 1563), where under similar circumstances, the Court had previously found that “there is no basis to „disturb the court‟s control of the discovery process‟” (Giles v. Yi, 105 A.D.3d 1313, 1319 (N.Y. App. Div. 4th Dep't 2013) leave to appeal granted by 107 A.D.3d 1647 (N.Y. 4 th Dep‟t 2013)) and rejected the “contention of plaintiff that the IAS court abused its discretion” in compelling plaintiff and found that plaintiff was “properly denied” “judicial notice of 42 USC §4851” (R. 1563). PRELIMINARY STATEMENT It is respectfully submitted that Supreme Court erred as a matter of law and should have taken Judicial Notice of 42 USC §4851 as plaintiff provided sufficient proof, in the form of government publications, to establish the dose response relationship and effects of low-level lead poisoning (R. 192; See Point I). Plaintiff was entitled to a protective Order, as on this record, he made out a prima facie case 3 of causation as a matter of law (R. 185-186; 191-192; See Point II). Finally, defendants improperly sought relief pursuant to CPLR §3124 and 22 NYCRR 202.17 (R. 120-121, 176-177), and plaintiff‟s particulars sufficiently placed the landlord on notice to properly prepare a defense (R. 186-190; 192-193; See Point III). STATEMENT OF FACTS Christopher was born in 1990 (R. 389). Christopher‟s records from the Department of Health demonstrate he had documented chronic (R. 1441) elevated blood lead levels (PHL §1376[6]) from less than a year of age until about seven years of age (R. 233-248) and that he was hospitalized to reduce his lead exposure at the age of two (R. 331-332). Growing up, plaintiff had hearing problems and trouble with his balance (R. 427, 726), received speech services (R. 725), parts of his body, fingertips, ears, toes, and arms regularly go numb (R. 437-438), he suffers frequent headaches (R. 440), and requires reading glasses (R. 464). Christopher has been in special education since school started (R. 697, 725, See selected school records, generally, 350-378), has frequent behavioral problems and an inability to sit still and listen (R. at 726). Plaintiff repeated grades (R. 487), dropped out as a sixteen year old in 8 th grade, unsuccessfully enrolling in GED programs thereafter (R. 404-408). Christopher has been on anti-distractibility medication (R. at 424-425, 700) and describes himself as hyper and regularly 4 zoned out (R. at 494). Christopher has and will continue to require supervision for the rest of his life, is incarcerated, and regularly spending time in the “box” (R. at 706, 390-391). Plaintiff served particulars, during discovery, claiming that blood lead neurotoxicity (R. 1443) damaged or injured systems such as heme, neurotransmitter function, myelin formation, and regulation of gene transcription. Plaintiff claims lead poisoning was a substantial factor in causing injury to his brain resulting in deficits and disorders in neurological, cognitive, academic, occupational and social/behavioral development and that as a result, plaintiff suffers a permanent severe disability which limited educational attainment; choice of occupation; future labor force activity, full time work; income, earnings, and employability. As to what plaintiff cannot presently determine based on lag effect, it is claimed that there is “increased probability of” or “fear of” injury because blood lead neurotoxicity affects all areas where blood navigates (R. 65-66; Figueroa v. 242-246 Bradhurst Holding LLC, 2011 NY Slip Op 32845U, 2011 N.Y. Misc. LEXIS 5152, 9-18 (N.Y. Sup. Ct. Oct. 12, 2011) [CDC “recognizes such a "lag time" for the emergence of the cognitive symptoms of lead poisoning”]). These claimed damages are all entirely consistent with injuries caused by lead according to government publications (R. 878-885). Plaintiff and 5 his mother were deposed and plaintiff affirmed, in his papers, that “he has provided all medical and educational records in his possession” (R. 194). ARGUMENT POINT I JUDICIAL NOTICE OF 42 USC §4851 AFFORDS THE NON SUI JURIS PLAINTIFF INJURED BY LEAD POISONING THE NECESSARY REBUTTABLE PRESUMPTIONS An elevated lead level, or low level lead poisoning, is an actionable injury (Walton v. Albany Community Dev. Agency, 279 A.D.2d 93, 96 fn. 3 (N.Y. App. Div. 3d Dep't 2001) [“The Centers for Disease Control and Prevention have stated that "[b]lood lead levels (BLLs) as low as 10 mg/dl are associated with harmful effects on children's ability to learn" (Centers for Disease Control and Prevention, Screening Young Children for Lead Poisoning: Guidance for State and Local Public Health Officials, at 13, Nov. 1997, published on the Internet”]; Adams v. Rizzo, 13 Misc. 3d 1235(A), 27-28, 35, 39 (N.Y. Sup. Ct. 2006) [“lead poisoning (an elevated blood lead level greater than or equal to 10 mcg/dl [Public Health Law § 1370 (6); see, 10 NYCRR 67-1.1 [d]) is an "actionable injury"”]; Robinson v Bartlett, 95 A.D.3d 1531, 1532 fn. 1 (N.Y. App. Div. 3d Dep't 2012) [“An elevated lead level is "a blood level greater than or equal to 10 micrograms . . . per deciliter [mcg/dcl] of whole blood" (Public Health Law § 1370 [6]; see 10 NYCRR 67-1.1 [e])”]). 6 Almost a quarter of a century ago, the United States declared the effects of low-level lead poisoning (42 USC §4851). Here, plaintiff moved the IAS Court to take judicial notice because of its repeated refusals, requiring expert testimony, to accept the effects of lead poisoning (R. 152-175) at any duration or levels (People v. Wesley, 83 N.Y.2d 417, 423 (N.Y. 1994) [“sufficiently established to have gained general acceptance in the particular field in which it belongs”]). In October of 1992, Title 42 of the United State Code entitled “The Public Health and Welfare”, “Chapter 63A”: entitled “Residential Lead-Based Paint Hazard Reduction” became law which requires, among other things, certain disclosure “before the purchaser or lessee is obligated under any contract to purchase or lease the housing” (42 USC §4852(1)(a)). The federal government took the leadership role to have an “informed public” which was “necessary” to “ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible”. It found that: (2) at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems [general causation]; (3) pre-1980 American housing stock contains … tons of lead in the form of lead-based paint, with the vast majority of homes built before 1950 containing substantial amounts of lead-based paint [notice]; (4) the ingestion of household dust containing lead from deteriorating or abraded lead-based paint is the most common cause of lead poisoning in children [specific causation]; 7 (5) the health and development of children living in … [these] homes is endangered by chipping or peeling lead paint, or excessive amounts of lead-contaminated dust in their homes [RPL §235-b [“occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety”]; (6) the danger posed by lead-based paint hazards can be reduced by abating lead-based paint or by taking interim measures to prevent paint deterioration and limit children‟s exposure to lead dust and chips [reasonable conduct] (42 USC §4851). This statute is relevant to every lead paint poisoning case (Chapman v. Silber, 97 N.Y.2d 9, 21 (N.Y. 2001); [“This rule is merely an application of familiar notice principles”]; Robinson v Bartlett, 95 A.D.3d 1531, 1534 (N.Y. App. Div. 3d Dep't 2012) [Plaintiff “provided a scientific as well as a medical basis for the conclusion that plaintiff's exposure to lead paint while he lived in defendants' apartment caused his injuries”]) and the law is intended to inform the public and place the least restrictive level of action upon landlords by requiring notice before any lease goes into effect in pre-1980 housing (42 USC §4852), without unreasonably impeding on liberty or property. The legislature is authorized to exercise its powers to promote the public health, safety or welfare, subject only to the limitations of the Constitution, and as long as there is a reasonable connection for exercise of that power for the common good, it does not matter if “the enforcement of the law interferes to some extent with liberty or property” (Viemeister v. White, 179 N.Y. 235, 237-241 (N.Y. 1904)). 8 Here, plaintiff requested judicial notice of finding (2) (DeMatteo v. DeMatteo, 194 Misc. 2d 640, 647-650 (N.Y. Sup. Ct. 2002) [“a realistic view would acknowledge that matters judicially noticed may be only prima facie true, but that the high degree of probability warrants judicial notice of the proposition”]). This is not, however, an isolated request as every single declaration of 42 USC §4851 is directly relevant (cf. Pagan v Rafter, 969 N.Y.S.2d 265 (N.Y. App. Div. 4th Dep't 2013) [Judicial Notice of 42 USC §4851 denied to confer general knowledge on the landlord]; Van Wert v Randall, 100 A.D.3d 1079, 1081- 1082 (N.Y. App. Div. 3d Dep't 2012) [Court did not abuse its discretion in determining that plaintiff had failed to establish the relevance of the proffered laws to a trial in this particular case]). We also provided the IAS Court with government literature, confirming that the epidemiological literature provides a basis for associating specific biomarkers, elevated blood lead levels, with adverse health effects (R. 898, 948-950 [dose- response relationship]) in chronically exposed children: In considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research (CPLR Rule 4511). These publications make clear that “Neurobehavioral effects” from “exposure early in development” “have been observed with remarkable 9 consistency”, are “robust” and “persist”; that the “overall weight of the available evidence provides clear substantiation of neurocognitive decrements” (R. 878); and that the mechanisms of injury to the brain from lead exposure are: “response perseveration; insensitivity to changes in reinforcement density or contingencies; deficits in attention; reduced ability to inhibit inappropriate responding; impulsivity; and distractibility” (R. 879), which can lead to a diagnosis of several DSM disorders (Matter of William A., 13 Misc. 3d 367, 372-373 (N.Y. Sup. Ct. 2006) [Judicial Notice of DSM-IV]). The IAS Court rejected plaintiff‟s request as an attempt to avoid having to prove causation (R. 14 [“Plaintiff wants to use the findings set forth in 42 USC §4851 and the Public Health Law to prove that plaintiff‟s exposure to lead based paint caused the ailments complained of”]). The taking of Judicial notice does not relieve plaintiff from having to establish exposure to the particular toxin at the proper dose response level, sufficient to cause injury to the brain (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 448 (N.Y. 2006)). It merely recognizes the dose response of harm to the brain and nerves at elevated levels. The Fourth Department concluded that plaintiff was “properly denied” “judicial notice” reasoning that even though the law “creates a private right of action in favor of purchasers or lessees”, Supreme Court “may decline to take judicial notice of it” since this “case does not involve allegations that plaintiff was 10 a purchaser or lessee of the premises” (R. 1563), and alternatively, the statute cannot serve to prove “disputed issues” to be “determined at trial” (R. 1563). It appears, by its citations, that the Fourth Department was of the opinion that the federal statute was not relevant in time (citing to Sleasman v. Sherwood, 212 A.D.2d 868, 870 (N.Y. App. Div. 3d Dep't 1995) [Court refused to take judicial notice of sound measurements taken two and four years after incident]) and that the Court was not willing to take judicial notice of a question of fact (citing to Hunter v. New York, O. & W. R. Co., 116 N.Y. 615, 621-624 (N.Y. 1889) [Courts are not bound to take judicial notice of matters of fact]) (R. 1563). Plaintiff‟s lead poisoning was in the midst of passage and subsequent implementation of 42 USC §4851 (R. 233-248) and it was an error of law to not take judicial notice of this statute. CPLR Rule 4511 requires every court (“shall”) to take “judicial notice without request of … public statutes of the United States”, sufficient supporting proof was provided, and as set forth above, Judicial notice merely recognizes the dose response of harm to the brain and nerves at elevated levels. 11 POINT II PLAINTIFF WAS ENTITLED TO A PROTECTIVE ORDER AS PLAINTIFF HAS ALREADY MADE A PRIMA FACIE CASE OF CAUSATION AS A MATTER OF LAW An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury (PJI 2:70). The Fourth Department‟s decision, and a minority of others like it, refuse to recognize the devastating effects of low level childhood lead poisoning, or chronic exposure to lead at elevated levels, on neurons and nerves by a neurotoxin as a matter of law (Giles, 105 A.D.3d at 1317-1318 (N.Y. App. Div. 4th Dep't 2013) [“hyperactivity, speech and language delays, irritability, memory deficits, and the increased probability of emotional and psychological impairments, could have been caused by some source other than lead”]; Adams, 13 Misc. 3d 1235(A), 27- 28, 35, 39 (N.Y. Sup. Ct. 2006) [“lead poisoning … does not give rise to the grand logical and evidentiary leap that every developmental, behavioral or neuropsychological problem experienced by a plaintiff has been proximately caused by a prior lead paint exposure”]). The IAS court specifically made this clear (R. 12-13 [“Plaintiff must establish a causal connection to the injuries claimed”]) as affirmed by the Fourth Department (R. 1563). This was an error of law. Causation is first a question of law (Gayle v. City of New York, 92 N.Y.2d 12 936, 937 (N.Y. 1998) [“Plaintiffs met their burden of proving a prima facie case as a matter of law”]). Lead poisoning cases are no different (Robinson, 95 A.D.3d 1531, 1534 (N.Y. App. Div. 3d Dep't 2012)). Summary Judgment, in favor of plaintiff on this record without the need for expert testimony, would be appropriate (Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628, 648 (N.Y. 1996) [“Plaintiffs' proof sufficed to establish prima facie causation”]). Although it may be relevant for scientific studies to account for other causes to obtain valid study results (http://en.wikipedia.org/wiki/Bradford_Hill_criteria), or for the defendant landlord to defend a case by attempting to create a question of fact as to a legitimate superseding cause, in New York State, plaintiff does not have the burden to exclude other possible causes but only to show that lead was a substantial cause (Parker v. Mobil Oil Corp., 7 N.Y.3d 434, 446 fn. 2, 448 (N.Y. 2006); Nawrocki v. Coastal Corp., 45 A.D.3d 1341, 1342 (N.Y. App. Div. 4th Dep't 2007) compare to PJI 2:70 quoted above). In lead poisoning cases, defendant‟s experts cannot exclude the injuries set forth in plaintiff‟s pleadings on a summary judgment motion (Walton, 279 A.D.2d 93, 97 (N.Y. App. Div. 3d Dep't 2001) [“Nor does the opinion that exposure to lead was an inconsequential factor, or that another cause was more likely than not, preclude such exposure from being found, as a matter of fact, to be one of the proximate causes of the children's neuropsychological conditions”]). This is 13 because Courts in New York State have already acknowledged that low level lead poisoning causes injury to the developing brain (neurons) and nervous system (nerves): "Lead is a poison that affects virtually every system in the body" and is particularly harmful to brain and nervous system development (Centers for Disease Control and Prevention Statement, Preventing Lead Poisoning in Young Children, at 7 [Oct. 1991]) … Not surprisingly, young children are at a higher risk for lead exposure and its deleterious effects because of their normal hand-to-mouth activity and their developing neurological systems (N.Y. City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337, 342-343 (N.Y. 2003); Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628, 640-641 (N.Y. 1996) [“The serious health hazard posed to children by exposure to lead-based paint is by now well established”]). It is well documented and beyond dispute that lead is a highly toxic metal which, when introduced into the human body, produces a wide range of adverse health effects, especially with regard to children and developing fetuses. . . . Further, it appears that young children are more sensitive to lead exposure than adults, particularly their brain and nervous systems, which are especially vulnerable in their developmental stages. Lead exposure as low as two micrograms per deciliter in children under seven years old lowers IQ, stunts growth and causes behavioral disorders (Williamsburg Around the Bridge Block Ass'n v. Giuliani, 223 A.D.2d 64, 66 (N.Y. App. Div. 1st Dep't 1996)). Christopher‟s records demonstrate documented chronic elevated blood lead levels between one and seven years of age (R. 233-248, 331-332) and deficits in attention (R. 424-425, 494, 700), learning (R. 697, 725, 350-378, 487), behavior (R. 726), and speech (R. 725) as well as regular headaches (R. 440), neuropathy (R. 437-438), hearing deficits, problems with balance (R. 427, 726) and vision (R. 14 464). On this record, plaintiff has made out a prima facie case by showing exposure to a toxin, at sufficient levels, capable of causing the injury complained of, and shifted the burden to the landlord defendants to convince the Court that a question of fact exists sufficient to allow the fact finder to find that causation can be superseded (Rivera v. New York, 11 N.Y.2d 856, 857 (N.Y. 1962) [“Where the evidence as to the cause of the accident, which injured plaintiff is undisputed, the question as to whether any act or omission of the defendant was a proximate cause thereof is one for the Court and not for the jury”]; Kush v. Buffalo, 59 N.Y.2d 26, 33 (N.Y. 1983) [“An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act is of such an extraordinary nature or so attenuates defendant's negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant”]). Plaintiff affirmatively moved Supreme Court for a Protective Order (CPLR §3103(a)) asking the Court to “prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice” to the plaintiff and refusal to do so was an abuse of discretion as a matter of law (Karger, The Powers of the New York Court of Appeals §16:4, p. 579 (3d ed. (2005)). The Court should have recognized defendants‟ motion for what it really was, an attempt to further harass or injure an aggrieved party. What was sought here was a disingenuous attempt to prejudice the plaintiff. No showing of good cause was attempted. 15 POINT III Plaintiff’s Particulars Were Sufficient to Place the Landlord Defendants on Notice To Properly Prepare A Defense Defendants complained, in seeking to compel plaintiff, that the injuries claimed were vague so that they could not determine the type of examination to perform and that there was no evidence in the records connecting the injuries claimed in plaintiff‟s particulars to plaintiff‟s lead poisoning (R. 185-186). Plaintiff‟s particulars unequivocally place the defendants on sufficient notice to properly prepare a defense. Plaintiff claims the actionable harm caused brain and nerve damage manifesting as cognitive and behavioral deficits and disorders, and at higher levels neuropathy, and fear and increased probability of further injury in the future causing a lifetime of pain, suffering and economic loss. Procurement of a medical service report bucks long standing precedent by requiring plaintiff to produce “evidentiary material” or “expert testimony” (Graves v. County of Albany, 278 A.D.2d 578 (N.Y. App. Div. 3d Dep't 2000) [A party need not provide “evidentiary material” or “expert testimony”]). CPLR §3101(a) governs the scope of disclosure using the terms “material” and “necessary” regardless of the burden of proof. CPLR §3121 is a disclosure device (CPLR §3102(a)) permitting a party to force compulsory examinations in an “action” commenced placing in “controversy” “physical or mental condition”. The purpose of the disclosure device is to eliminate areas of medical controversy 16 (Jakubowski v. Lengen, 86 A.D.2d 398, 400 (N.Y. App. Div. 4th Dep't 1982) [“narrowing, if possible, areas of medical dispute through the assistance of the medical profession, and eliminating most of the medical controversy in a personal injury case”]) which is the pervasive and important mission of compulsory examinations (Lipin v. Bender, 84 N.Y.2d 562, 571 (N.Y. 1994)). 22 NYCRR 202.17(b)(1), even though it sloppily refers to the defense examiner as a “medical provider”, ensures that the examiner is supplied with “medical reports of those medical providers who have previously treated or examined the party”, “such other records, including x-ray and technicians' reports, as may be referred to and identified in the reports”, and “may consist of completed medical provider, workers' compensation, or insurance forms that provide the information”. No reported cases have ever interpreted 202.17 as requiring plaintiff to procure and produce “evidentiary material” or “expert testimony” such as an examining medical service report. Generally, CPLR §3101(d) prevents disclosure of such expert reports, but CPLR §3121(b) overcomes this by specifically requiring an “exchange” of examining reports (Hoenig v. Westphal, 52 N.Y.2d 605, 610 (N.Y. 1981); Diamantstein v. Friedman, 199 A.D.2d 458, 459 (N.Y. App. Div. 2d Dep't 1993); Dorato v. Schilp, 130 A.D.2d 348, 349 (N.Y. App. Div. 3d Dep't 1987)). After the defendant discloses a report, if plaintiff has an expert examining report or disagrees 17 with the results of the examination, plaintiff is obligated to timely “exchange a copy of each report in their control of an examination made of the injured plaintiff with respect to the physical condition in controversy” (Pierson v. Yourish, 122 A.D.2d 202 (N.Y. App. Div. 2d Dep't 1986); Ciriello v. Virgues, 156 A.D.2d 417, 418 (N.Y. App. Div. 2d Dep't 1989); Kelly v. Tarnowski, 213 A.D.2d 1054, 1055 (N.Y. App. Div. 4th Dep't 1995)) and a plaintiff that fails to exchange a report faces later preclusion (Davidson v. Steer/Peanut Gallery, 277 A.D.2d 965 (N.Y. App. Div. 4th Dep't 2000)). CPLR §3124 is inapplicable as plaintiff did not fail to respond or comply with a “request, notice, interrogatory, demand, question, or order” as nothing in CPLR §3121(a) or 22 NYCRR 202.17 compels plaintiff to procure and produce “evidentiary material” or “expert testimony” and prove causation during discovery. Courts should never take sides in resolving discovery disputes (O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 529 (N.Y. 1988) [“competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party”]) and by compelling plaintiff to produce “evidentiary material” or “expert testimony” and prove causation, during discovery, Article 31 of the CPLR was circumvented. Discovery operates regardless of the burden of proof (CPLR §3101(a)) and what happened here was