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DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED.

The Fourth Department determined the lead paint poisoning complaint should have been dismissed because plaintiff was unable to show defendants had actual or constructive knowledge of the condition and defendants were not under a duty to test for lead:

Defendants submitted affidavits and deposition testimony establishing that they were not aware of any peeling or chipping paint on the premises prior to the inspection conducted by the [Monroe County Department of Health]. Defendants also established that neither plaintiff nor the relatives with whom plaintiff resided at the premises ever complained to either defendant of any peeling or chipping paint on the premises. Contrary to plaintiff’s contention, he failed to raise an issue of fact whether defendants were aware of chipping and peeling paint on the premises … , or whether defendants retained the requisite right of entry to the apartment to sustain a claim for constructive notice … . Furthermore, “[w]ithout evidence legally sufficient to permit a jury to rationally infer that the defendant had constructive notice of a dangerous condition, the defendant cannot be held liable for failure to warn or to remedy the defect” … . Consequently, absent evidence raising a triable issue of fact whether defendants had actual or constructive notice of a dangerous condition on the premises, the court erred in denying that part of the motion seeking dismissal of the failure to warn claim. …

“The Court of Appeals in Chapman (97 NY2d at 21) expressly decline[d] to impose a new duty on landlords to test for the existence of lead in leased properties based solely upon the general knowledge of the dangers of lead-based paints in older homes” … . Taggart v Fandel, 2017 NY Slip Op 02177, 4th Dept 3-24-17

 

NEGLIGENCE (LEAD PAINT, DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED)/LEAD PAINT (DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF LEAD-PAINT CONDITION, DEFENDANTS DID NOT HAVE A DUTY TO TEST FOR LEAD, COMPLAINT SHOULD HAVE BEEN DISMISSED)

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