Citation Numbers: 187 Misc. 2d 867, 725 NYS2d 158
Judges: Stallman
Filed Date: 8/28/2000
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
The City moves for summary judgment; plaintiffs cross-move to amend the complaint to assert breach of a special duty.
Plaintiffs sue the City and their landlord for personal injuries allegedly incurred by Josefina Reyes’s children, who ate lead paint chips in their apartment. Plaintiffs claim, inter alia, that the City was deficient in enforcing lead-poisoning statutes and regulations, including the Federal Lead-Based Paint Poisoning Prevention Act (42 USC § 4822 [LPPPA]).
Plaintiffs allege that the City became involved in July 1995, when HPD’s Office of Code Enforcement inspected the apartment in connection with plaintiffs’ Housing Court proceeding to compel the landlord to make repairs. HPD issued various “immediate hazard” violations, including peeling lead paint, but the landlord allegedly did nothing. Edwin’s elevated lead level was first diagnosed in November 1995, and Edgar’s was first diagnosed in December 1995, several months after HPD issued the lead paint violations. HPD again inspected the apartment in January 1996 and issued more violations, also apparently unheeded. The City continued to send investigators, but it did not itself begin to correct the lead violations until September 1996. Abatement took approximately two months; plaintiffs remained in the apartment. Plaintiffs assert that City inspectors told Reyes not to worry and did not direct her to relocate. Reyes further asserts that City abatement workers did not properly dispose of lead dust, thereby increasing lead levels.
The original complaint contains eight causes of action: (i) violation of Federal law (LPPPA); (ii) failure to enforce local laws; (iii) violation of civil rights (42 USC § 1983); (iv) negligence; (v) negligence per se; (vi) breach of contract and implied warranty of habitability; (vii) nuisance; and (viii) infliction of mental distress. The amended complaint substitutes a new fifth cause of action asserting breach of special duty.
(i) Violation of Federal Law (LPPPA)
Applying the United States Supreme Court’s test in Cort v Ash (422 US 66, 78), there is no private right of action under LPPPA (Santiago v Hernandez, 53 F Supp 2d 264 [ED NY]; see Cardona v 642-652 Willoughby Ave. Corp., 182 Misc 2d 223).
(ii) Failure to Enforce Local Laws
Plaintiffs can prevail in this claim only by proving that the City’s “ ‘disregard of the command of [a] statute result [ed] in damage to one of the class for whose especial benefit the statute was enacted’ ” (New York City Coalition to End Lead
(iii) Violation of Civil Rights (42 USC § 1983)
Applying the United States Supreme Court’s three-pronged test in Blessing v Freestone (520 US 329, 340-341) to the lead paint situation, only plaintiffs in subsidized or public housing have a right of action under 42 USC § 1983 (see German v Federal Home Loan Mtge. Corp., 1999 WL 1095595, 1999 US Dist LEXIS 19029 [SD NY, Dec. 2, 1999, Buchwald, J.]; Roman v Morace, 1997 WL 777844, 1997 US Dist LEXIS 19926 [SD NY, Dec. 16, 1997, Cote, J.]). Plaintiffs in private housing cannot state such a claim (see Santiago v Hernandez, 53 F Supp 2d 264, supra).
(iv) Negligence and (v) Negligence Per Se
Plaintiffs may state a negligence claim against the City only by showing breach of a special duty (Sorichetti v City of New York, 65 NY2d 461). The proposed amendment alleges a special duty claim;
Plaintiffs must show that the City undertook a duty owed specifically to them. Such “special” duty goes beyond the municipality’s obligations to the general public; it must be premised on a special relationship between the City and plaintiffs (Florence v Goldberg, 44 NY2d 189, 195; Lee v New York City Tr. Auth., 249 AD2d 93, lv dismissed and denied 92
Plaintiffs claim that the City exceeded its statutory duty by sending monitors to the apartment to inspect the paint and to advise about dealing with hazards, e.g., rinsing food. The monitors allegedly assured plaintiffs that everything would be fine, but did not warn them to vacate. Reyes asserts that she reasonably believed that the monitors were experts, and followed their advice. The City’s acts, including the inspector’s remarks, during the court-mandated and other inspections and followups, are not actionable; they were part of the City’s governmental regulatory function, to which immunity attaches. (See Bargy v Sienkiewicz, 207 AD2d 606.)
However, to the extent that plaintiffs allege that the City chose to undertake the lead abatement itself, and did so negligently during plaintiffs’ occupancy, such allegations, when viewed in a light most favorable to the pleader, on a motion to amend or a prejoinder CPLR 3211 (a) (7) motion, may suffice to show the assumption and breach of a special duty. (See Valencia v Lee, 55 F Supp 2d 122, 133, citing Garrett v Holiday Inns, 58 NY2d 253; see also Bargy v Sienkiewicz, supra; Toribio v City of New York, 2000 WL 690252, *3, 2000 US Dist LEXIS 7259 [SD NY, May 26, 2000, Eaton, J.].) On similar allegations, it was held that the claim’s viability hinged on triable factual questions. (Valdez v MGS Realty & Mgt. Corp., 2000 WL 511024, *10-11, 2000 US Dist LEXIS 5569 [SD NY, Apr. 28, 2000, Kram, J.].)
The City contends that Reyes’s affidavit, the basis of the special duty claim, conflicts with her General Municipal Law § 50-h hearing and deposition. These discrepancies in sworn testimony do raise significant factual questions and credibility issues, but the court may not determine them summarily here,
(vi) Breach of Contract and Implied Warranty of Habitability
A landlord’s duty to keep rental premises in good repair includes lead abatement as required by law (Morales v Felice
(vii) Nuisance
Irrespective of the viability of a nuisance claim against a landlord (see Rosario v Koss, 26 AD2d 561, 562; cf. Wall St. Transcript Corp. v 343 E. 43rd St. Holding Corp., 81 AD2d 783), it is not viable against the City, which did not own, finance or provide plaintiffs with their apartment (see Valencia v Lee, supra).
(viii) Infliction of Mental Distress
The circumstances alleged do not amount to a deliberate and malicious campaign of harassment or intimidation. (Vasarhelyi v New School for Social Research, 230 AD2d 658.)
Conclusion
Accordingly, plaintiffs’ cross motion to amend the complaint is granted. The City’s motion for summary judgment is granted dismissing all claims originally pleaded against the City.
[Portions of opinion omitted for purposes of publication.]
Plaintiffs’ notice of claim clearly states that the City owed plaintiffs a special duty and breached it. Any factual omissions from plaintiffs’ bill of particulars may be remedied through service of an amended bill of particulars. Because the City has not yet interposed an answer to this claim (see CPLR 3212 [a]; Kantor v Bernstein, 225 AD2d 500, 502), the court must deem all allegations pleaded to be true and accord plaintiff every favorable inference (344 E. 72 Ltd. Partnership v Dragatt, 188 AD2d 324).