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IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE.

The First Department determined Supreme Court should not have limited discovery in this lead-paint exposure case to documents relating solely to the apartments where infant plaintiff resided or spent time. The condition of other portions of the buildings may be relevant to defendants’ notice of the condition of the paint:

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The motion court should not have limited defendants’ production of records pertaining to lead-based paint exposure to the date of exposure and three years prior only in the subject apartments, namely, the apartment in which the infant plaintiff resided and the apartment, in a different building, where she attended day care. “While discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … .

Plaintiffs allege in their complaint that defendants “knew, should have known, and/or had reason to know that there was deteriorated, defective, flaking, chipping and peeling paint in the Subject Premises [apartments] and the Subject Building,” which “could be harmful to children” … . Yet, despite this knowledge, the complaint alleges that defendants were negligent in performing repairs within the plaintiffs’ residence and the apartment where the infant plaintiff attended day care, and permitted the continued “emission, discharge[], spread and dissemination of lead based paint . . . thus causing the exposure of the infant plaintiff” to the hazardous conditions which were a contributing cause of her lead poisoning. Additionally, since plaintiffs had evidence from the New York City Department of Housing Preservation and Development (HPD), which showed numerous lead paint violations in the subject buildings, and since evidence of lead paint hazards in one part of a building may be relevant to the issues of defendants’ notice of the condition, duties and obligations to the plaintiffs … , plaintiffs’ demand for production of records for lead-based paint violations in the other apartments in the buildings was appropriate … . “Knowledge of a dangerous condition in one portion of the structure may have imposed upon the owners an obligation to examine’ other portions of the structure for defects arising from the same cause, and to ascertain what was ascertainable with the exercise of reasonable care” … . The fact that plaintiffs may have been able to access some evidence of lead paint violations in the building from HPD does not preclude plaintiffs from seeking these records directly from defendants in discovery … .  Z.D. v MP Mgt., LLC, 2017 NY Slip Op 04059, 1st Dept 5-23-17

 

NEGLIGENCE (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/TOXIC TORTS  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/CIVIL PROCEDURE (DISCOVERY, IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/DISCOVERY  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)/LEAD PAINT  (IN THIS LEAD-PAINT EXPOSURE CASE, DISCOVERY SHOULD NOT HAVE BEEN LIMITED TO DOCUMENTS CONCERNING ONLY THE APARTMENTS INFANT PLAINTIFF SPENT TIME IN, THE CONDITION OF OTHER PORTIONS OF THE BUILDING MAY BE RELEVANT TO DEFENDANTS’ NOTICE)

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EVEN THOUGH THE US SUPREME COURT CASE REQUIRING WARRANTS FOR CELL SITE LOCATION DATA WAS NOT DECIDED AT THE TIME OF TRIAL, PRESERVATION OF THAT ISSUE FOR APPEAL IS STILL NECESSARY; A DEFENDANT MAY BE INDICTED FOR BOTH DEPRAVED INDIFFERENCE AND INTENTIONAL MURDER; CONSECUTIVE SENTENCES FOR THE SHOOTINGS AND POSSESSION OF A WEAPON WERE APPROPRIATE (FIRST DEPT). ​
PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT).
PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE.
PLAINTIFF BOOK-PRINTER REPUDIATED ITS BOOK-PRINTING CONTRACT WITH DEFENDANT WHEN IT SOLD ITS PRINTING OPERATION TO A THIRD PARTY (FIRST DEPT). ​
THERE WAS NO RECORD DEFENSE COUNSEL WAS INFORMED OF THE JURY NOTE AND NO RECORD THE JUDGE RESPONDED TO THE NOTE, A MODE OF PROCEEDINGS ERROR; ALTHOUGH THE NOTE REFERRED ONLY TO ONE COUNT, THE THREE COUNTS WERE FACTUALLY CONNECTED REQUIRING A NEW TRIAL (FIRST DEPT). ​
EVEN THOUGH PLAINTIFF GAVE CONFLICTING DESCRIPTIONS OF WHERE SHE SLIPPED AND FELL, ONE OF THOSE DESCRIPTIONS WAS SUFFICIENT TO RAISE A QUESTION OF FACT THAT THE FALL OCCURRED IN AN AREA WHICH HAD BEEN EXCAVATED (FIRST DEPT).
AN INDIVIDUAL CORPORATE OFFICER, AS OPPOSED TO THE CORPORATION, CAN NOT BE HELD STRICTLY LIABLE FOR SEXUAL HARASSMENT UNDER THE NYC HUMAN RIGHTS LAW UNLESS THE OFFICER ENCOURAGED, CONDONED OR APPROVED THE SPECIFIC DISCRIMINATORY CONDUCT; COMPLAINT AGAINST THE CORPORATE OFFICER DISMISSED (FIRST DEPT).

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