In a lead-paint injury case, the Fourth Department determined medical records regarding psychological injury stemming from a sexual assault were discoverable because the plaintiff alleged psychological injury associated with exposure to lead paint. The Court ordered an in camera inspection of the records to weed out irrelevant information. Dominique D. v Koerntgen…, 512, 4th Dept, 6-7-13
In dismissing a complaint seeking damages pursuant to the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) for the failure to make disclosures regarding the dangers of lead paint, the Second Department noted that only seller’s agents, not buyer’s agents, can be held liable under the act:
The statutory language of the RLPHRA “is unambiguous with regard to the liability of real estate agents; only seller’s agents are liable” for the failure to ensure compliance with its provisions… . Contrary to the plaintiffs’ contention, it would be contrary to the unambiguous language of the statute to construe 24 CFR 35.86 so as to impose a duty on an agent or representative of a buyer… . Accordingly, the Supreme Court should have granted the …defendants’ motion to dismiss the complaint insofar as asserted against them. Felix v Thomas R Stachecki Gen Contr, LLC, 2013 NY Slip Op 03966, 2nd Dept, 6-5-13
In affirming the denial of summary judgment in a lead-paint injury case, the Third Department explained the “notice” elements as follows:
With respect to notice, “[i]t is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” …. In this context, constructive notice may be demonstrated by a showing “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Derr v Fleming, 515399, 3rd Dept, 5-9-13
In a lead-paint injury case, the Fourth Department determined Supreme Court properly granted a motion to preclude evidence of plaintiff’s mental or physical condition unless plaintiff provided defendant with so-called “speaking authorizations” allowing defendant to communicate with non-party healthcare providers about the plaintiff’s injuries. However, the Fourth Department did not agree with Supreme Court’s grant of the same motion with respect to non-party educators (two justices dissented on that issue):
In Arons v Jutkowitz …, the Court of Appeals provided the framework for conducting discovery with regard to nonparty healthcare providers, which includes the use of speaking authorizations. Arons, however, does not authorize defendant to obtain speaking authorizations for plaintiff’s educators. We decline to extend Arons to require production of speaking authorizations to anyone other than nonparty healthcare providers. The Arons decision is narrow in scope and provides a framework as to how parties must procedurally comply with the Health Insurance Portability and Accountability Act of 1996 when attempting to speak with an adverse party’s treating physician. Defendant made no showing that the discovery devices available under the CPLR and the Uniform Rules for the New York State Trial Courts were inadequate to obtain the necessary discovery. McCarter v Woods, CA 12-00678, 1117, 4th Dept, 5-3-13
In a lead-paint injury action, defendants moved to compel plaintiff to produce medical reports linking the injuries to lead and to provide an amended bill of particulars to reflect those injuries. In the alternative the defendants moved to preclude proof of plaintiff’s injuries in the absence of such medical reports. Supreme Court granted the defendant’s motion and the Fourth Department affirmed. In addition, the Fourth Department noted that Supreme Court was not required to take judicial notice of the federal Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851), which provides a private right of action for lead-related damages, because plaintiff was not “relying” on the statute. Hamilton v Miller…, CA 12-01574, 355, 4th Dept, 5-3-13
Plaintiff’s inability to demonstrate the defendant had actual or constructive notice of the presence of lead paint in defendant’s building, in the face of defendant’s deposition testimony about his lack of knowledge, justified the dismissal of the lead-paint-injury complaint. The Third Department explained:
“[I]n order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” ….To establish constructive notice in the context of a lead paint case, the plaintiff must show “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment” … . Hines v Double D and S Realty Management Corp, 515635, 3rd Dept, 5-2-13
In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions. The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:
Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted. As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13
The Fourth Department determined a question of fact had been raised about whether a defendant/owner of the apartment had constructive notice of the presence of lead paint:
The deposition testimony of [defendant] was equivocal and inconsistent with respect to whether he had constructive notice of a dangerous lead paint condition on his property. For instance, Weston alternately testified that there “could have been” peeling or chipping paint, that he did not recall whether there was peeling or chipping paint, and that he had “no problem” with peeling or chipping paint. [Defendant] similarly contradicted himself as to whether he knew that a child lived in the apartment. Regarding the other [Chapman v Silber (97 NY2d 9)] factors, [defendant] testified that he believed that he had a right to re-enter the apartment to make repairs, and he admitted that he knew by 1990 that lead was bad for children and that it could be found in houses like his. In short, [defendant’s] testimony … raised triable issues of fact regarding constructive notice … . Watson v Priore, et al, 293, CA 12-00977, 4th Dept. 3-22-13
Plaintiffs brought an action for personal injuries and property damage allegedly caused by toxic emissions released by defendant Tonawanda Coke Corporation. An owner and officer of Tonawanda Coke (Crane) moved to dismiss the cause of action suing him in an individual capacity. In affirming the denial of that motion, the Fourth Department wrote:
Although “[a] corporate officer is not held liable for the negligence of the corporation merely because of his official relationship[,]” that officer will be held liable if it is established “that the officer was a participant in the wrongful conduct” … .Plaintiffs alleged in the first amended complaint that Crane was or should have been aware of the relevant environmental regulations, was ultimately responsible for reporting benzene emissions to the Environmental Protection Agency, and personally supervised and exercised control over Tonawanda Coke’s operations … .Thus, plaintiffs have alleged that Crane actively participated in the wrongful conduct by approving the policies that allegedly caused the environmental contamination … . Abbot v Tonawanda Coke Corporation, et al, 155, CA 12-01384, Fourth Dept. 3-15-13
In a full-fledged opinion by Justice Smith, the Fourth Department discussed the liability-limits of an insurance carrier for injuries caused to children by lead paint in the insured apartment. The policy, which had a $500,000 limit, included the following sentence: “All bodily injury and property damage resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.” Children in one family who lived in the apartment suffered injury from lead paint and the carrier paid out $350,000. Subsequently children in another family who moved into the same apartment suffered injury from lead paint. The question before the Court was whether the liability to the second family was capped at $150,000 because the total liability of the carrier could not exceed $500,000, or whether the injury to the second family triggered another $500,000 in policy coverage. The Fourth Department determined the carrier was liable for a total of $500,000 for the injuries to both families and the second family could recover no more than $150,000. Nesmith, et al v Allstate Insurance Company, 1252, CA 12-00182 Fourth Dept. 2-1-13
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