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STATUTORY PRESUMPTION THAT THE PAINT CONTAINED LEAD DID NOT APPLY BECAUSE THERE WAS NO EVIDENCE THE INTERIOR OF THE BUILDING WAS PAINTED PRIOR TO JANUARY 1, 1960; HOWEVER QUESTIONS OF FACT WERE RAISED ABOUT THE PRESENCE OF LEAD PAINT AND THE CONNECTION BETWEEN THE PAINT AND INFANT PLAINTIFF’S LEAD POISONING, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, reversing Supreme Court, determined that questions of fact were raised about the landlord’s (New York City Housing Authority’s, NYCHA’s) responsibility for the lead poisoning of infant plaintiff (A.L.). Successive blood tests revealed increasing lead levels as the child aged, and a decrease after the apartment was repainted. The first issue the court dealt with was whether Local Law 1, which creates a presumption that the paint in the apartment contains more than .5 percent lead for buildings “erected” prior to January 1, 1960, applied. The certificate of occupancy for the building was issued in March, 1961, but there was evidence the building was under construction in 1959. “Erected” was (apparently) interpreted to mean when the apartment was painted, so the statutory presumption did not apply:

Here, A.L.’s elevated blood lead level suggests … a hazardous condition may have existed in the apartment during the relevant period. While there are other sources of lead poisoning, housing is a prime source …  The circumstantial evidence of a hazardous lead-based paint condition is also supported by an affirmation by Dr. Douglas B. Savino and an affidavit by lead paint expert William Savarese. Dr. Savino concluded that the apartment contained a hazardous level of lead-based paint, given the “chronology of the infant plaintiff’s blood lead levels,” which was “environmentally and temporally related to the infant plaintiff’s residence.” He noted that A.L.’s blood levels increased over time until he was diagnosed with 16 ug/dl on March 19, 2003, coinciding with the repainting of the apartment on March 5-6, 2003. Dr. Savino attributed the lead spike in A.L.’s blood to A.L. ingesting an excessive amount of lead dust. Dr. Savino further pointed out that A.L.’s blood lead levels declined gradually after the 2003 apartment repair and the 2004 removal of the chipped and peeling interior doors. William Savarese echoed Dr. Savino’s statements and conclusions. A.L. v New York City Hous. Auth., 2019 NY Slip Op 00702, First Dept 1-31-19

 

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