By John Caher
ALBANY - The Court of Appeals yesterday relaxed the standard of notice in upstate lead paint cases and ruled that landlords may be held liable for injuries under common law principles.
Yesterday's ruling reverses a trend in three Appellate Divisions and restores a constructive notice standard that had been supplanted by actual notice. But the ruling stops short of adopting a presumptive notice standard or of imposing new duties on landlords.
Judge Carmen Beauchamp Ciparick, writing for the Court, observed that unlike the City of new York, the state does not impose on landlords a duty to abate lead-based paint hazards absent official notification of a potential problem. However, she said the lack of statutory authority "is not fatal," and that a landlord "may be liable for negligence under traditional common law principles."
In Chapman v. Silber, 128, one of the two lead paint matters decided in a combined opinion yesterday, a triable issue of fact was raised when the plaintiff established that the landlord had a right of entry, knew the apartment was constructed when lead-based paint was commonly used, was aware that the paint was peeling, knew that lead paint is dangerous to youngsters, and knew that a young child resided in the apartment.
Overall, in Chapman v. Silber and Stover v. Robilotto, 129, the Court lowered the notice standard while avoiding the necessity of creating a new duty, something it is loath to do. The ruling was eagerly awaited upstate, and attorneys had indicated that the future of lead paint litigation outside the City of New York would hinge on the outcome. In essence, the Court reaffirmed its historic stance in premises liability cases and embraced the constructive notice standard - no more and no less.
Both cases involve housing in Albany. In ChapmanI/i>, the plaintiffs moved into a freshly painted second-floor apartment with their year-old son in August 1994. Sallie Chapman complained of peeling paint on the front porch in April or May 1995, and complained again a few months later. At that point, the landlord had the porch painted. A routine blood test detected moderately elevated levels of lead in Jaquan Chapman's blood in September 1994, but the landlord was not notified. About a year later, a follow-up test revealed dangerously high blood-lead levels that required the boy's hospitalization. An inspection by the Albany County Health Department found a lead paint hazard, which was remediated by the landlord.
Supreme Court Justice Bernard J. Malone Jr. of Albany denied the landlord's motion for summary judgment, finding that the landlords had been in the apartment when the paint was peeling and should have been aware of the danger. The Appellate Division, Third Department, unanimously reversed, holding to the actual notice standard that it and the other two upstate departments had consistently applied to lead paint cases.
In Stover, a plaintiff moved into an Albany apartment in February 1993 while she was pregnant. When her infant was six months old, he wsa hospitalized for lead paint poisoning. Inspectors detected lead paint throughout the apartment. Supreme Court Justice Thomas W. Keegan dismissed the tenant's suuit against the landlord in a decision upheld by the Third Department.
Yesterday, the Court of Appeals reversed in Chapman and affirmed in Stover in an opinion that underscores the vast differences in led paint litigation upstate and downstate.
In New York City Local Law 1 (§27-2013 of the Administrative Code) esentially imposes constructive notice where a pre-1960 dwelling is occupied by children under the age of 7. Five years ago, the Court upheld the statute in Juarez v. Wavecrest Management, 88 N.Y.2d 628, and recognized that it established a p resumption of notice and imposed on landlords a specific duty to address lead-based paint hazards in their leased premises.
That provision has since been revised through the enactment two years ago of Local Law 38, which to a large degree diluted the standard imposed by Local Law 1. Last month, the Appellate Division, First Department, heard arguments on the validity of the new provisions. That appeal, New York City Coalition to End Lead Poisoning v. Vallone, 120911/99, has not yet been decided.
The question addressed yesterday by the Court of Appeals centered on the appropriate notice standard outside of New York City.
As it often does, the Court considered the practical application of the rule advocated by each side, examined its own precedents on premises liability and concluded that anything other than a constructive notice standard is simply untenable. Judge Ciparick said that the rule created by the Appellate Divisions would encourage an ignorance-is-bliss posture on the part of landlords.
"That rule leaves plaintiffs in an impossible situation," Judge Ciparick wrote. "Defendant landlords cannot be held liable for a hazardous lead paint condition unless they are actually aware that lead is present in the chipping paint. Yet because lead in paint is undetectable to the senses, a landlord cannot actually know of its presence without testing. Thus, applying the Appellate Division principle, landlords who deliberately refrain from testing for lead can shield themselves from liability."
Judge Ciparick cautioned that the judges remain "mindful of our own prior admonitiions regarding the creation of a new duty where none existed before," and specifically declined to impose on landlords a new duty to test for lead paint based solely on a generalized knowledge of the hazard. The New York Court also specifically refused to follow the Wisconsin Supreme Court, which in Antwaun A. v. Heritage Mutual Insurance Co., 228 Wis.2d 44 (1999), held that a general knowledge of a particular type of danger establishes a duty to test or remedy.
"We hold only that a landlord who actually knows of the existence of many conditions indicating a lead paint hazard ot young children may, in the minds of the jury, also be charged constructively with notice of the hazard," Judge Ciparick wrote. She was joined by Chief Judge Judith S. Kaye and Judges George Bundy Smith, Howard A. Levine, Richard C. Wesley and Albert M. Rosenblatt. Judge Victoria A. Graffeo, who was on the Third Department bench when matters were decided there, took no part in either case.
A Clean Break
Peter Danziger, counsel for the plaintiffs in both cases, said the ruling is a "tremendous victory for the children of New York State." He said it means "landlords cannot sit idly by and deliberately refrain from testing their buildings in an attempt to shield themselves from liability ... This really will make a tremendous difference in the future to help prevent tens of thousands of New York children from being lead poisoned."
Mr. Danziger, of O'Connell and Aronowitz in Albany, said the decision is a clean break with the three upstate Appellate Divisions and establishes a new standard for upstate lead litigation.
"Before this decision, the door was completely closed to children unless it could be proved that a landlord actually knew the paint in the building contained lead," Mr. Danziger said. "The Court of Appeals has corrected these rulings and returned to the common law principle that landlords have duties to repair dangerous conditions which they should have known about ... There is no question [now] that the constructive notice principle is applicable to lead poisoning cases."
John T. Casey Jr., of counsel to Bohl Della Rocca & Dorfman P.C. and the attorney for two of the defendants, said the nub of the ruling is that "notice of peeling paint in a demised premises, along with certain other factors, will be sufficient to esetablish an issue of fact on constructive notice." Mr. Casey said the Court's affirmance in Stover shows that while the hurdle has been lowered, it has not been eliminated.
"Landlords are under an obligation to have a reasonably safe premises and habitation for their tenants," Mr. Casey said. "That has always been the rule. However, now with an undetectablie hazardous condition such as lead paint, it seems that they have additioanl obligations to monitor the premises. It seems that it is still necessary for there to be a complaint of peeling or chipping paint. Absent such a complaint by the tenant to the landlord ... I don't think constructive notice can be demonstrated."
In addition to Mr. Casey and Mr. Danziger, Derek L. Hayden of Horigan, Horigan and Lombardo PC in Amsterdam appeared for a defendant in Chapman, and Peter J. Camp of Friedman, Hirschen, Miller & Campito P.C. in Schenectady argued for a defendant in Stover.