By Jay Romano
The New York State Court of Appeals issued a ruling last month that lawyers say will make it easier for renters whose children are victims of lead poisoning to sue their landlords for damages. In a unanimous decision, the state's highest court reversed a trend established in New York courts outside New York City in which landlords could be held liable only if a tenant proved that the landlord had actual knowledge of the existence of lead-based paint in the tenant's apartment. (New York City's rules do not require the owner of a multiple dwelling to have actual knowledge of the existence of lead-based paint to be liable for damages.)
But while the ruling makes it easier for tenants across the state - including New York City tenants in one- and two-family homes, which are not covered by the city's lead-paint laws - to hold landlords accountable for injuries to their children, it stops short of requiring landlords to test their properties for the presence of lead-based paint.
Nonetheless, Matthew Chachere, a staff lawyer with the Northern Manhattan Improvement Corporation, a not-for-profit legal services agency in Manhattan, said he believed "that the impact of this case will be enormous." Mr. Chachere, who filed a friend of the court brief in the case on behalf of the New York City Coalition to End Lead Poisoning and 25 medical professionals and advocacy organizations, said that the ruling "represents a major step in requiring landlords to take an active role in preventing lead poisoning."
He said that before the court's Nov. 15 ruling in the case of Chapman vs. Silber, a tenant's ability to sue a landlord for damages resulting from a child's ingestion of lead-based paint differed significantly depending on where in New York State the tenant lived.
In New York City, Mr. Chachere said, Local Law 1 of 1982 basically requires owners of multiple dwellings in the city to remove or safely and permanently cover any lead-based paint in any apartment in which a child under age 7 resides. Local Law 38 of 1999, which is currently being challenged in court, reduces the age to children under 6 and requires the landlord to remove or cover only lead paint that is visibly deteriorating.
In 1996, he said, the Court of Appeals, ap-plying the law, ruled that the mere presence of peeling paint in apartments with young children provided "constructive notice" that the children could be at risk for lead poisoning, and therefore exposed the landlords to liability for negligence if poisoning happened and imposed a duty on the land-lords to eliminate lead-based paint hazards in their properties.
In other words, Mr. Chachere said, in multiple dwellings in New York City, tenants did not have to prove that a landlord actually knew there was lead-based paint to be able to hold the landlord responsible for injuries sustained by their children.
Elsewhere in New York State, however, the situation was quite different.
Since there is no statewide law similar to New York City's Local Law 1 of 1982, courts throughout the state applied a different standard for determining a landlord's liability. Mr. Chachere said that in cases outside the city, as well as cases in the city in which the tenant was renting in a one- or two-family building, negligence cases brought against landlords were routinely dismissed if the tenant could not prove that the landlord had actual notice that there was lead-based paint in the apartment.
"Basically, the cases were encouraging landlords to avoid finding out if there was lead-based paint in their buildings," Mr. Chachere said. "If the landlord tested, and discovered that the building contained lead-based paint, he could be held liable if a child ended up with lead poisoning. But if the landlord didn't test for lead, and therefore didn't actually know it was present, he couldn't be held liable."
To address this problem, the Court of Appeals established a five-part test in last month's decision. The court concluded that an injured tenant can proceed with a lawsuit against a landlord when the tenant shows that the landlord retained a right of entry to the premises and assumed a duty to make repairs, knew that the apartment was built before lead-based interior paint was banned (generally, in buildings built before 1978), was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young children and knew that a young child lived in the apartment.
Peter Danziger, the Albany lawyer who represented the plaintiffs in the case, said that it involved James and Sallie Chapman, who rented an apartment in Albany in 1994. After the couple moved into the apartment with their three children - including a year-old son, Jaquan - they complained to the landlord about chipping and peeling paint on the front porch and in the window tracks. About two months after they moved in, a routine blood test revealed moderately high lead levels in Jaquan's blood.
Subsequent tests indicated blood-lead levels so high they resulted in the boy's hospitalization. The Chap-mans then filed a $10 million suit against the landlord. Their son, Mr. Danziger said, sustained permanent brain damage that resulted in problems with speech and motor skills.
After a State Supreme Court justice declined to dismiss the case, an appeals court granted the landlord's motion to dismiss on the grounds that there was no proof that the landlord actually knew there was lead-based paint in the apartment. It was that decision that the Court of Ap-peals reversed.
"Basically, the court ruled that we presented enough facts to get the case before a jury," Mr. Danziger said, adding that in addition to making it possible for tenants whose children have been poisoned by lead-based paint to bring negligence lawsuits against landlords, the court's ruling would likely go a long way toward protecting other children from lead poisoning in the future.
"In the past, some landlords didn't test their buildings for lead because they didn't really want to know whether it was there," he said. "But now I'm sure that landlords will do more testing, and that could help save thousands of children."
Mark Cheffo, a Manhattan lawyer who helped write a friend of the court brief on behalf of organizations that represent property owners, said that while the court clearly stated that it was not imposing a duty on landlords to inspect their buildings for lead, it is not nearly so clear what landlords are expected to do to minimize their exposure to liability.
"This is a very serious issue for landlords," Mr. Cheffo said. "There have been verdicts in these cases in the millions of dollars."
Kathleen Burr, a Buffalo lawyer who also worked on the brief filed on behalf of the property owners' organizations and who represents upstate landlords in lead-paint cases, said that it is clear that landlords will have to be much more cognizant of the potential for problems associated with lead-based paint.
"To be absolutely liability-proof. landlords who have young children in their buildings probably should consider hiring a reputable contractor to inspect for lead-based paint," Ms. Burr said, adding, however, that if a problem is found, some landlords may be faced with a difficult choice, "given the significant cost associated with lead remediation work." The cost, she said, can range from thousands to tens of thousands of dollars. depending on the scope of the work.
"Given the depressed value of many upstate inner-city rental properties," she said, "some upstate landlords may find that it makes more sense to get out of the landlord business altogether."