COURT OF APPEALS STATE OF NEW YORK APL (Bronx County Clerk s Index No. 2268/06)

Transcription

1 COURT OF APPEALS STATE OF NEW YORK APL (Bronx County Clerk s Index No. 2268/06) YANIVETH R., an infant by her mother and natural guardian, RAMONA S., and RAMONA S., Individually, Plaintiffs-Appellants, against LTD REALTY CO., and LTD REALTY CO., LLC, Defendants-Respondents, SIMONE DAMESEK, AS EXECUTRIX OF THE ESTATE OF RAPHAEL DAMESEK, JOSHUA DAMESEK, RAY DAMESEK, Defendants, and LTD REALTY CO., Third-Party Plaintiffs, against OWNERS CORP., and LEOR MANAGEMENT GROUP, Third-Party Defendants. BRIEF OF AMICI CURIÆ NEW YORK CITY COALITION TO END LEAD POISONING, NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., AND NEW YORK STATE TENANTS & NEIGHBORS COALITION, INC. IN SUPPORT OF PLAINTIFFS-APPELLANTS Andrew Goldberg, Esq. Attorney for New York Public Interest Research Group, Inc. 30 Fifth Avenue, 10B New York, New York Tel.: December 30, 2015 Matthew J. Chachère, Esq. Northern Manhattan Improvement Corp. Legal Services Attorneys for New York City Coalition to End Lead Poisoning and New York State Tenants & Neighbors Coalition, Inc. 45 Wadsworth Ave New York, NY Tel

2 TABLE OF CONTENTS Page Table of Authorities iii Statement of Corporate Relationships Statement of Interest of the Amici Curiae Preliminary Statement Statement of Facts Argument Point I. Point II. IF A LANDLORD KNOWS OF THE PRESENCE OF A CHILD IN AN APARTMENT, IT DOES NOT MATTER UNDER THE REASONING IN CHAPMAN V. SILBER WHETHER THE CHILD RESIDES IN THE APARTMENT RATHER THAN OPENLY SPENDS A SIGNIFICANT AMOUNT OF TIME THERE THE LOWER COURT ERRED IN CITING LOCAL LAW 1 OF 2004 TO INTERPRET LOCAL LAW 1 OF Conclusion ii-

3 TABLE OF AUTHORITIES Cases Acosta v. Irdank Realty Corp., 38 Misc 2d 859 (S. Ct. N.Y. Co. 1963) Chapman v. Silber, 97 N.Y.2d 9 (2001) passim Garcia v. Freeland Realty, Inc., 63 Misc. 2d 937 (Civ. Ct. N.Y. Co. 1970) Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628 (1996) , 4, 10 N.Y. City Coalition to End Lead Poisoning v. Koch, 138 Misc 2d 188 (S. Ct. N.Y. Co. 1987), aff d, 139 A.D.2d 404 (1st Dep t 1988) N.Y. City Coalition to End Lead Poisoning v. Giuliani, 245 A.D.2d 49 (1st Dep t 1997), lv. to app. den., 245 A.D.2d 49 (1st Dep t 1997) N.Y. City Coalition to End Lead Poisoning. v. Vallone, 100 N.Y.2d 337 (2003) , 4, 10, 11 N.Y. Pub. Interest Research Group v. Cohen, 188 Misc. 2d 658 (S. Ct. N.Y. Co. 2001) Pelaez v. Seide, 2 N.Y.3d 186, 197 (2004) Williamsburg Around the Bridge Block Ass n v. Giuliani, 223 A.D.2d 64 (1st Dep t 1996) , 11 Yaniveth R. v. LTD Realty Co., 120 A.D.3d 1142 (2d Dep t 2014) , 10 -iii-

4 Statutes, Laws and Regulations 16 CFR Part CFR U.S.C et seq U.S.C. Chapter 63, 4821 et seq N.Y. City Health Code N.Y. City Local Law 6 of N.Y. City Local Law 50 of 1972, former N.Y.C. Admin. Code N.Y. City Local Law 1 of 1982, former N.Y.C. Admin. Code (h) , N.Y. City Local Law 1 of 2004, N.Y.C. Admin. Code et seq Pub. Health L Pub. Health L a et seq Other Authorities Lanphear, et al., Low-Level Environmental Lead Exposure and Children s Intellectual Function: An International Pooled Analysis, Environ Health Perspect Jul; 113(7): U.S. Dep t of Health and Human Services, CDC, Morbidity and Mortality Weekly Report, Children with Elevated Blood Lead Levels Attributed to Home Renovation and Remodeling Activities New York, (Jan. 3, 1997) iv-

5 U.S. Dep t of Health and Human Services, CDC, Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention. (2012) , 13 U.S. Dep t of Housing and Urban Development, Report of the Lead- Based Paint Hazard Reduction and Financing Task Force Putting the Pieces Together: Controlling Lead Hazards in the Nation s Housing. (1995) N.Y.S. Dep t of Health, Reducing Lead Exposure in Children. (2008) v-

6 STATEMENT OF CORPORATE RELATIONSHIPS New York City Coalition to End Lead Poisoning, New York Public Interest Research Group, Inc., and New York State Tenants & Neighbors Coalition, Inc. are non-profit corporations with no parent companies and no subsidiaries or affiliates. STATEMENT OF INTEREST OF THE AMICI CURIAE Amicus New York City Coalition to End Lead Poisoning ( NYCCELP ) is a membership organization founded in 1983, in response to widespread noncompliance with New York City s and New York State s lead poisoning prevention laws. NYCCELP exists for the purpose of educating and advocating for children at risk of lead poisoning and eliminating that risk. NYCCELP s most significant constituents are parents of children at risk of lead poisoning. Other members work on behalf of such parents and their children, and include lead poisoning experts. The most vulnerable of this parent group who suffer most from lead poisoning and landlords lack of prevention efforts are low-income parents of children actually poisoned. In the daily work of NYCCELP s members on behalf of families at risk, NYCCELP members assist families with young children who have been exposed to lead paint hazards or are lead poisoned. NYCCELP members educate and advocate for the families to 1

7 obtain inspections of their apartments for lead paint and to secure abatement of all lead hazards, and obtain screening for their children. In 1985, NYCCELP initiated litigation against New York City and New York State to actively press for compliance with lead poisoning prevention laws, and in that litigation the court certified a plaintiff class against the City of all children in New York City under age seven years living in a multiple dwelling where a complaint of lead paint has been made which defendants have not timely and adequately inspected and abated. N.Y.C. Coalition to End Lead Poisoning v. Giuliani, 245 A.D.2d 49 (1st Dep t 1997), lv. to app. den., 245 A.D.2d 49 (1st Dep t 1997). These decisions have resulted, inter alia, in declarations clarifying the meanings of, and duties under, these laws, orders directing New York City s enforcement of these laws, and contempt orders against the City for its failure to comply with those orders. NYCCELP was also a petitioner in a successful Article 78 proceeding enjoining New York City from sandblasting hazardous lead paint from bridges, which rained lead-contaminated dust down on residential neighborhoods, without proper environmental review. Williamsburg Around the Bridge Block Ass n v. Giuliani, 223 A.D.2d 64 (1st Dep t 1996). NYCCELP and others brought a successful Article 78 proceeding that resulted in a declaration nullifying changes 2

8 in New York City lead paint laws changes which weakened the protections for young children against lead poisoning because the City enacted those changes without proper environmental review. N.Y. City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d 337 (2003). NYCCELP also participated as an amicus curiae in Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d 628 (1996) and Chapman v. Silber, 97 N.Y.2d 9 (2001). Amicus New York Public Interest Research Group, Inc. ( NYPIRG ) was formed in 1973 as a non-profit, non-partisan organization to bring about policy reforms while training students and other New Yorkers to effectively monitor and participate in civic decision making. NYPIRG is New York State's largest organization that works on issues such as environmental preservation, consumer protection, voter registration and matters affecting public health, including lead paint poisoning. NYPIRG has a long history of involvement in the area of lead poisoning prevention, beginning in 1992 when it began a Lead Poisoning Prevention Awareness Campaign. In 1993, NYPIRG produced Get the Lead Out, a consumer handbook on lead poisoning prevention. NYPIRG also has published the LEADletter, which reported on lead poisoning issues statewide. In N.Y. Pub. Interest Research Group v. Cohen, 188 Misc. 2d 658 (S. Ct. N.Y. Co. 2001), NYPIRG was successful in requiring the New York City Department of 3

9 Health to provide access to electronic data on childhood lead poisoning. NYPIRG was also a plaintiff in NYCCELP v. Vallone, and an amicus in Chapman v. Silber. NYPIRG is on the steering committee of the New York City Coalition to End Lead Poisoning and co-chairs the Coalition to End Lead Poisoning in New York State. Amicus New York State Tenants & Neighbors Coalition, Inc. ( NYSTNC ) is a state-wide tenants rights lobbying and advocacy membership organization. The organization lobbies the New York State Legislature on laws affecting tenants rights and protections, the allocation of funds for affordable housing, and the preservation of housing. To protect the interests of the families of NYSTNC s members, it was a plaintiff in N.Y. City Coalition to End Lead Poisoning v. Vallone, and an amicus curiae in Juarez by Juarez v. Wavecrest Mgmt. Team and Chapman v. Silber. NYSTNC has a substantial interest in the proper interpretation of this Court s decision in Chapman because it has a direct impact on its membership which is statewide, many of whom live in jurisdictions that do not have local laws governing lead paint like New York City. 4

10 PRELIMINARY STATEMENT The amici maintain that it is fully consistent with this Court s decision in Chapman v. Silber, 97 N.Y.2d 9, to hold in this appeal that if a landlord knows of the presence of a child in an apartment, then it does not matter whether the child resides in the apartment or, rather, openly spends a significant amount of time there, in order to impose a common law duty on a landlord to take reasonable measures to correct any lead paint hazards. The amici respectfully urge this Court to reject the holding of the lower court, which dismissed this case on a motion for summary judgment because Yaniveth resided elsewhere. Yaniveth R. v. LTD Realty Co., 120 A.D.3d 1142 (2d Dep t 2014). Instead, a jury should be able to assess the duration of Yaniveth s open presence in the apartment in determining whether the landlord should have been aware of the dangerous lead paint conditions that poisoned her at the age of one. Amici are also concerned that the lower court s decision, if affirmed, would appear to narrow landlords common law obligations under Chapman concerning lead-contaminated paint hazards to only such homes where a child officially resides. If this were the only situation covered, then the common law would leave out many other situations where a child may be present, such as in Yaniveth s case, where a grandparent is providing child care, a common situation in New York City and throughout New York State. 5

11 In 1960, the New York City Board of Health determined that leadcontaminated paint was a major source of childhood lead poisoning, so it outlawed the further use of lead paint in residential housing. N.Y. City Health Code In 1970, the New York State Legislature outlawed the use of lead paint in residential housing statewide. Pub. Health L Also in 1970, the New York City Council passed Local Law 6 of 1970, which provided a tax incentive program for the removal of lead paint hazards. That same year, one New York court said, It is a matter of common knowledge in New York City, that... as successive layers of paint peel away, the paint underneath becomes a menace to any young child who can pick off the flakes and put them in his mouth. Garcia v. Freeland Realty, Inc., 63 Misc. 2d 937, 940 (Civ. Ct. N.Y. Co. 1970) (emphasis added). In 1971, the Congress enacted the Lead-Based Paint Poisoning Prevention Act ( LPPPA ), 42 U.S.C. Chapter 63, 4821 et seq., to require reduced levels of lead in paint in federally financed and subsidized housing and to fund screening and research programs. In 1973, the LPPPA was amended to require U.S. Department of Housing and Urban Development ( HUD ) to take steps to eliminate the hazards of lead-contaminated paint in federally financed and subsidized housing, and the Consumer Product Safety Commission banned the 6

12 sale of lead-contaminated paint effective February 27, C.F.R. Part In 1972, the New York City Council passed Local Law 50 of This law required the City s housing agency to correct lead paint violations issued by the City s health department whenever landlords refused to do so. In 1982, the New York City Council passed Local Law 1 of 1982 (former N.Y.C. Admin. Code (h)). This Local Law required landlords to remove or cover lead paint hazards. In 1990, the federal Department of Housing and Urban Development ( HUD ) published Interim Guidelines for hazard identification and abatement of lead-contaminated paint in Public and Indian Housing Programs, which included information about methods and technologies, such as testing methods and equipment, qualifications and training of abatement contractors, abatement choices and methods, and worker protection. In 1992, the New York State Legislature amended the Public Health Law to improve testing of children for lead poisoning and to establish a Lead Poisoning Prevention Program within the New York State Department of Health ( NYSDoH ). PHL 1370-a, 1370-c, 1370-d, 1370-e. In 1992, in Title X of the Housing and Community Development Act of 1992, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act, codified 42 U.S.C. Chapter 63A, , and it amended the Toxic 7

13 Substances Control Act to add a new Title IV, entitled Lead Exposure Reduction, codified at 15 U.S.C et seq. Among other things, these enactments imposed on sellers and landlords lead-based paint disclosure and warning requirements at the time of the sale or rental of pre-1978 housing units, 42 U.S.C. 4852d; required certain warning notices prior to renovations, 15 USC 2686; and required the federal Environmental Protection Agency ( EPA ) to issue rules for the conduct of renovation and remodeling activities where there is a risk of lead exposure, 15 USC 2682(c). In sum, between 1960 and 1992 a vast array of laws concerning lead paint and childhood lead poisoning were enacted by New York City, New York State and the federal government. Still, unfortunately, 40 years after New York City banned lead paint and 16 years after Local Law 1 of 1982 took effect requiring landlords to remove or cover lead paint, Yaniveth R. was lead poisoned. 8

14 STATEMENT OF FACTS A. The Case on Appeal. Yaniveth R. was born in Because her parents were working, Yaniveth and her six year old sister were dropped off at her grandmother s apartment at 9:30 am, and she and her sister were picked-up at 7:00 pm, to return to her parent s apartment. According to Yaniveth s grandmother, the building superintendent (who lived in the building) knew that Yaniveth was spending long periods of time in the apartment. (R.657) He would come to the apartment and see me in the hallways with Yaniveth and I would tell him that I was watching her in my apartment during the day while her mother worked. (Id.) He had to install window guards on the windows in 1997 because he knew I was taking care of very young children in the apartment... (R.658) In February 1998, when Yaniveth was about 12 months old, she was found to have an elevated blood-lead level of 30 micrograms of lead per deciliter of blood ( ìg/dl ). (R.503). This high blood-lead level triggered a mandatory inspection of the grandmother s apartment by the New York City Department of Health, where during the course of the inspection the Department conducted testing throughout the apartment and 9

15 1 found that every painted surface it tested was in poor condition, whether it was lead contaminated paint or not. (R ) This inspection caused the Department to issue an Order to Abate for the numerous hazardous lead paint conditions that were found in the apartment. (R ) B. Lead Paint and the Effects of Lead Poisoning. This Court is already very familiar with the effects of lead poisoning and the problem of lead-contaminated paint, recognize[ing] lead paint poisoning as a serious health problem, especially for young children... Pelaez v. Seide, 2 N.Y.3d 186, 197 (2004). See also N.Y. City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d at ; Chapman v. Silber, 97 N.Y.2d 9; Juarez by Juarez v. Wavecrest Mgmt. Team, 88 N.Y.2d at The fact that paint containing lead can poison children has been widely known for a very long time. For example, a New York court 52 years ago said, [I]t is well known that paint contains lead which may cause lead poisoning to anyone ingesting it. Acosta v. Irdank Realty Corp., 38 Misc 2d 859, 860 (S. Ct. NY Co. 1963) (emphasis added). Lead is a highly toxic metal which, when introduced into the human body, produces a wide range of adverse health effects, especially with regard to 1 The N.Y.C. Department of Health describes the condition of paint in its printed inspection form as either: (i) intact, (ii) fair or (iii) poor. (R.504) 10

16 children. Williamsburg Around the Bridge Block Ass n v. Giuliani, 223 A.D.2d at 66. Lead particles ingested by the human body cause severe damage to the brain and central nervous system. NYCCELP v. Vallone, 100 N.Y.2d at Recently, the U.S. Centers for Disease Control and Prevention (CDC) concluded that no safe blood lead level in children has been identified and the CDC reduced by 50% the level at which a child is effectively considered lead poisoned, recommending action when a child s blood lead level registers at 5 ìg/dl. Halving of the level at which a child is considered lead poisoned underscores that there is no safe level of exposure and the need for New York to aggressively pursue 2 prevention strategies and programs. 2 U.S. Dep t of Health and Human Services, CDC, Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention (2012) ( CDC Report ). The adverse health effects associated with lead poisoning have been widely studied and documented. See, e.g., Lanphear, et al., Low-Level Environmental Lead Exposure and Children s Intellectual Function: An International Pooled Analysis, Environ Health Perspect Jul; 113(7): This article may be accessed at the National Institute of Environmental Health Science website at Over the period from 1960 to 1991, the CDC has lowered incrementally from 60 to 10ìg/dL the level at which a child s blood-lead content was a level of concern (or colloquially the child is lead poisoned ). In 2010, the CDC recommended dispensing with the concept of level of concern because medical research had documented adverse effects below 10ìg/dL and also had failed to establish any scientifically-based safe level of lead in children s blood. Still, in order to prioritize the limited resources of local governments to respond to poisoned children, the CDC recommended an action level of 5 ìg/dl. (CDC Report at 16.) In comparison, Yaniveth R. was reported to the Department of Health with a blood lead level of 30ìg/dL. (R.503) 11

17 Lead paint on the interior surfaces of children s homes is the primary cause of lead poisoning. N.Y. City Coalition to End Lead Poisoning v. Koch, 138 Misc. 2d 188, 189 n.1 (S. Ct. N.Y. Co. 1987), aff d, 139 A.D.2d 404 (1st Dep t 1988). Even at very low exposure levels, the consensus among the public health community is to focus efforts on primary prevention removing lead paint hazards before a child is poisoned rather than awaiting the poisoning of a child before performing environmental remediation. Thus, in 2008, the EPA issued rules (40 CFR Part 745 Subpart E, Residential Property Renovation ) that require the use of specified lead safe work practices for repair, renovation, and painting work not only in pre-1978 homes where young children reside but as well in child-occupied facilities. Child-occupied facilities are defined in 40 CFR as locations visited by a child at least 2 days a week for a minimum of 3 hours each visit and a combined weekly total of at least 6 hours, and combined annual visits of at least 60 hours. (This is much less than the amount of time Yaniveth regularly spent in her grandmother s apartment.) In 2010, EPA revised those rules (75 Fed. Reg ) to make them applicable to all pre-1978 housing, regardless of whether a child resides there, explaining that: 12

18 Visiting children who do not spend enough time in the housing to render it a child-occupied facility may nevertheless be exposed to lead from playing in dust-lead hazards created by renovations. For example, children may spend time in the homes of grandparents Fed. Reg (emphasis added). And as the CDC s most recent Report states: CDC should develop and help implement a nationwide primary prevention policy to ensure that no children in the U.S. live or spend significant time in homes, buildings or other environments with lead-exposure hazards. CDC Report at 18 (emphasis added). Lastly, the problem of lead poisoning is an exceptional problem in this state because New York has the largest number and percent of pre-1950 housing of all states in the nation. NYSDoH, Reducing Lead Exposure in Children: 2008, at 3 7 Studies show that this housing also has the highest percentage of lead paint, where there is an increased risk that a child can become lead poisoned. 4 Yet 3 Available at surveillance_report/docs/2008_reducing_lead_exposure_children.pdf (viewed Dec. 28, 2015). 4 As NYSDoH noted in Children with Elevated Blood Lead Levels Attributed to Home Renovation and Remodeling Activities New York, , in CDC, Morbidity and Mortality Weekly Report, (Jan. 3, 1997) at 1122 : Because the concentration of lead in paint steadily declined before 1978, older homes are more likely to have paint with higher concentrations of lead. The risk for lead exposure associated with (continued...) 13

19 despite lead paint s ubiquity, only a small number of children are actually lead 5 poisoned because landlord s can control hazards by inspecting and diligently 6 maintaining the paint in an intact and safe condition. As a consequence, it often requires some amount of wilful indifference in addition to negligence in order to have a condition in a rental apartment that results in a child s lead poisoning. 4 (...continued) this source is greatest in homes built before 1950; in New York, both the number (3,401,416) and proportion (47%) of housing units built before 1950 are greater than any other state. (emphasis added), available at (viewed Dec. 28, 2015). 5 Data published by the CDC indicates that in 2014 a total of 9,494 New York children tested at 5 ìg/dl or above, and 1,484 tested at 10 ìg/dl or above. Website_StateConfirmedByYear_1997_2014_ htm (viewed Dec. 28, 2015). 6 HUD, Putting the Pieces Together: Controlling Lead Hazards in the Nation s Housing, Report of the Lead-Based Paint Hazard Reduction and Financing Task Force, 1995 (available at /osCsid/ivfp47m6i62059bbev51jb8p00 ), at 5. 14

20 ARGUMENT Point I IF A LANDLORD KNOWS OF THE PRESENCE OF A CHILD IN AN APARTMENT, IT DOES NOT MATTER UNDER THE REASONING IN CHAPMAN V. SILBER WHETHER THE CHILD RESIDES IN THE APARTMENT RATHER THAN OPENLY SPENDS A SIGNIFICANT AMOUNT OF TIME THERE In Chapman v. Silber, 97 N.Y.2d 9, this Court explained that under traditional common-law principles a landlord who is on notice of lead-paint hazards has a duty to remedy them. This Court said that a jury may conclude that a landlord has constructive notice of a lead paint hazard in the absence of actual notice (from testing the paint) when certain criteria are met. One criteria identified by this Court is the landlord having knowledge that a child is in the apartment. The issue on appeal is whether the landlord must have knowledge that the child resides in the apartment or is it enough that the landlord knows a child openly spends time in the apartment on an ongoing basis. In this appeal, the court below erroneously held that a jury may not weigh the duration of the child s presence in the apartment, when determining whether a landlord may be charged with constructive notice of a lead paint hazard, unless a plaintiff is able to prove that the child resided in the apartment where he or she 15

21 was lead poisoned. In Chapman v. Silber, this Court announced a new common law rule because the Court recognized that the old rule shielded landlords from liability by deliberately refrain[ing] from testing [paint] for lead. 97 N.Y.2d at 21. For similar reasons, this Court should reject the rule adopted by the court below because landlords will have an incentive not to inquire about the residence of a child who is known to be present, like Yaniveth, in order to avoid liability. The amici respectfully argue that this standard is inconsistent with this Court's reasoning in Chapman v. Silber, because it encourages landlords to insulate themselves from liability by turning a blind eye to a child s open and ongoing presence in a building with significant lead hazards. Furthermore, neither the holding nor the reasoning in Chapman v. Silber requires a child to reside in the apartment with lead paint hazards, since it is the open and regular presence of the child in that apartment that gives rise a duty to identify and repair hazardous condition rather than where the child might live or sleep. 7 In Chapman, this Court held that 7 While Local Law 1 of 1982 specifically refers to a dwelling unit in which a child or children six (6) years of age and under resides, this statute, which is applicable only to New York City, in no way defines or constrains the boundaries of the statewide common law of negligence for childhood lead poisoning. Chapman v. Silber, 97 N.Y.2d at 20 ( The absence of a statutory scheme... is not fatal to [an action brought under the common law]. Where certain requisites are satisfied, a landlord still may be liable for negligence under traditional common-law principles. ) 16

22 a landlord who actually knows of the existence of many conditions indicating a lead paint hazard to young children may, in the minds of the jury, also be charged constructively with notice of the hazard. (emphasis added) Id. at 21. In addition, this Court explained that a landlord who is (i) aware of the age of the building, (ii) the presence of chipped and peeling paint, (iii) the dangers of lead paint to children, and (iv) the presence of young children in the apartment, may have a duty to take precautions that would prevent lead poisoning. Id. at 22 (emphasis added). Applying these factors to the present case, a jury should be allowed to decide whether the landlord was aware of Yaniveth s presence in the apartment for a significant duration of time, along with the other factors that plaintiffs are required to prove. In this case, the building superintendent is alleged to have known that Yaniveth and her six year old sister were in the apartment every 8 weekday from 9:30 a.m. to 7:00 p.m. If anything, it is the duration of a child s presence in an apartment was the child s presence so minimal that a landlord was reasonable in believing that the risk of exposure was unlikely that a jury should weigh in determining the landlord s constructive notice of the hazard. Put 8 Even though there is a concern for all young children, Yaniveth was more at risk by crawling than her six year old sister. 17

23 another way, the operative question for the jury is whether a child was present openly and for a sufficient duration to require the landlord to address the paint hazards because the paint may contain lead. If a child s visits are only occasional, then maybe not. But if a landlord knows that the child is present in the apartment every weekday for an entire day, then probably so. It is an appropriate question of fact and the jury s weighing of this fact should not be curtailed as a matter of law on a motion for summary judgment. In fact, a child s presence in an apartment for a significant duration and a child s residence in the apartment are both functionally similar for the purpose of establishing the landlord s knowledge, with duration being a more important criteria than residence, because a child may reside in an apartment yet still be present for a duration that is significantly less than Yaniveth was in her grandmother s apartment in this case. Indeed, the fact that the Department of Health inspected the grandmother s apartment in addition to her parent s apartment shows that it s well understood that one needs to look at places other than primary residence when identifying and remedying lead poisoning sources. Clearly, this element of the common law is grounded in the idea of time and place and not solely about the legal designation of the child s residence. 18

24 Furthermore, amici maintain that it is entirely consistent with this Court s reasoning in Chapman that such notice should be based on the objective standard of a child s duration in the apartment and not on the subjective standard of a child s residence. The residence of a child can be based on complicated factors, such as a family s living arrangement (are the parents separated?), the parents employment and the availability of child-care options. When an issue of residence is in dispute, a jury may have to make a difficult determination about where a child may live. On the other hand, if a landlord s common law duty is based solely on his knowing that a child is spending significant time in the apartment, then a jury can address this factor without much difficulty. Also, a rule that curtails a case on summary judgment, because a poisoned child does not reside in the apartment, is likely to create unacceptable anomalies in the application of the common law. For example: What if Yaniveth s caretaker looked after her own child as well as Yaniveth, and both children became lead poisoned in the apartment? As a matter of law should a landlord be liable for the harm to one child but not to the other? What if Yaniveth often stayed overnight because of her parents work schedules in addition to the entire daytime? As a matter of law should a landlord avoid liability because Yaniveth s actual residence is at a different apartment, even though she spends only a minimal time at this other place? 19

25 What if Yaniveth s parents were separated or divorced, and her care alternated from one parent to another. Would a jury have to make a finding of the child s primary residence among the grandmother and the two parents in order to decide the landlord s liability? What if it is shown that the landlord in Yaniveth s case actually believed that Yaniveth lived in the apartment based on the superintendent s knowledge and actions, yet still took no action to abate the lead paint hazards? Should the landlord now escape liability for Yaniveth s lead poisoning just because it is revealed during discovery that Yaniveth resided with her parents, rather than where the landlord believed? As the first three examples illustrate, a rule based solely on the residence of a child can raise complicated factual issues and can lack reasonable support. As the last example illustrates, a rule based solely on residence can amount to a get out of jail free card. If the common law seeks to impose a duty on landlords to take reasonable measures to remedy lead paint hazards before a child is poisoned, then a rule that decides a landlord s liability on what is learned after the child is poisoned is irrational, because it elevates a concern for the landlord s potential liability over the child s interest in seeking damages for her injury. The amici respectfully urge this Court to reject the holding of the lower court and to instead clarify that a jury can consider the duration of a child s presence in the apartment. This action should not have been dismissed as a matter of law because Yaniveth resided elsewhere. Yaniveth R. v. LTD Realty Co., 120 A.D.3d at Instead, a jury should be able to assess the duration of 20

26 Yaniveth s presence and the landlord s knowledge, in determining whether the landlord should have been aware of the dangerous lead paint conditions that poisoned her. Point II THE LOWER COURT ERRED IN CITING LOCAL LAW 1 OF 2004 TO INTERPRET LOCAL LAW 1 OF 1982 In the court below, the Appellate Division s perfunctory decision correctly cites to Administrative Code of City of New York former (h)(1), to refer to Local Law 1 of 1982, which was in effect in New York City until about Local Law 1 of 1982 was the law in effect when Yaniveth R. was lead poisoned. Amici are concerned that the Appellate Division has also, incorrectly, cited to Local Law 1 of 2004, which in 2004 repealed and replaced Local Law 1 of These citations to several provisions of the current law imply that the sections are merely re-codifications of the old law. Amici contend that this characterization is inaccurate, because Local Law 1 of 2004 has a vast array of new obligations. Any parallel between the two laws, without careful analysis, may be oversimplification or erroneous. Amici urge this Court to resolve this matter without delving into the intent and purposes of the new law, since this is not 21

27 necessary to a determination of the law in effect in While Local Law 1 of 1982 is a few short paragraphs, the new law is many pages in length and contains many new mandates for landlords, for tenants and for the City of New York. As an example, unlike former (h)(1), which required landlords to remove or cover lead paint in an apartment with a child under 7 years of age, the new law requires landlords to inspect for certain hazards on an annual basis and in response to tenant complaints, and to correct any hazards that are present. In new (Statement of Findings and Purposes), the City Council states that: the council by enacting this article makes it the responsibility of every owner of a multiple dwelling to investigate dwelling units for lead-based paint hazards and to address such hazards on a case-by-case basis as the conditions may warrant, taking such actions as are necessary to prevent a child from becoming lead poisoned. Having established this responsibility, the council finds that sufficient information exists to guide owners in making determinations about the existence of lead-based paint hazards. (Emphasis added.) In addition, in new (6) the City Council defines a lead-based paint hazard without an age designation recognizing that children older than 6 can be lead poisoned as: any condition in a dwelling or dwelling unit that causes exposure to lead from lead-contaminated dust, from 22

28 lead-based paint that is peeling, or from lead-based paint that is present on chewable surfaces, deteriorated subsurfaces, friction surfaces, or impact surfaces that would result in adverse human health effects. Additionally, in new the City Council mandates that landlords remediate certain actual and potential lead-based paint hazards whenever an apartment becomes vacant because of a change in tenants. This new obligation reflects the Council s intention that residential housing overall become more lead safe as time goes on. Therefore, if this case had arisen under the current law in New York City, then the question of the landlord s liability would not just focus on the tenancy in existence when the child was lead poisoned, but also on whether any lead paint hazards were treated before the tenancy began. These are just a few of many differences between the old and new laws. Amici maintain that the landlord s liability in this case be ascertained solely under Local Law 1 of 1982, which was in effect in 1998, and the applicable common law. 23

29