Steffenhagen v. Sullivan et al
Filing
138
-CLERK TO FOLLOW UP-ORDER granting 71 Motion for Summary Judgment; denying 77 Motion for Summary Judgment; finding as moot 99 Motion to Strike ; granting 111 Motion for Summary Judgment; granting 112 Motion for Summary Judgment. Clerk to close case. Signed by Hon. Michael A. Telesca on 11/25/2013. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
RAEANNA STEFFENHAGEN,
Plaintiff,
09-CV-6485T
DECISION
and ORDER
v.
NORMAN R. MORRILL, LUCILLE P. MORRILL,
ROBERT SULLIVAN, and SONJA SUHR,
Defendants.
________________________________________
INTRODUCTION
Plaintiff Raeanna Steffenhagen (“Steffenhagen”) brings this
negligence action against defendants Norman R. Morrill, Lucille P.
Morrill,
Robert
defendants
poisoning.
are
Sullivan,
responsible
and
Sonja
for
Suhr,
subjecting
claiming
her
to
that
lead
the
paint
Specifically, plaintiff alleges that the defendants,
all of whom are landlords who owned rental properties where the
plaintiff lived when she was a child, failed to properly maintain
or repair their properties so as to make them safe for habitability
by
the
plaintiff.
She
alleges
that
each
of
the
properties
contained chipped or pealing lead paint, and that she ingested lead
paint while living at the properties, resulting in elevated levels
of lead in her blood.
She claims that the lead poisoning has
caused her to suffer cognitive deficits and other injuries, for
which she seeks damages from the defendants.1
1
This action was originally commenced in New York State
Supreme Court, Monroe County. Upon learning that the plaintiff
is now a resident of the State of Louisiana, defendant Sullivan
In
three
separate
motions,
defendants
Robert
Sullivan
(“Sullivan”), Sonya Suhr (“Suhr”), and Norman R. Morrill and
Lucille P.
Morrill (“the Morrill’s” or “Morrill defendants”) move
for summary judgment against the plaintiff on grounds that they
owed no duty to the plaintiff, or satisfied any duty owed, and
therefore cannot be held liable to her for any alleged damages
caused from lead poisoning. Specifically, the Sullivan and Morrill
defendants allege that because they had no notice of any defective
lead paint
condition
at
the
time plaintiff
resided
at their
respective properties, they had no duty to remedy the alleged
defective condition. Defendant Suhr alleges that she had no notice
of any defective lead paint condition until she received a notice
of such from a County health department, and that once she learned
of the defective condition, she promptly abated the hazard, thus
discharging her duty.
Plaintiff cross-moves for summary judgment on the issue of
liability, claiming that there are no material facts in dispute,
and that as a matter of law, all defendants were negligent in
renting
premises
containing
pealing
or
chipping
lead
paint.
Plaintiff further alleges that there are no facts in dispute as to
the causation of her damages, and that as a matter of law, each
defendant caused her alleged lead poisoning.
Plaintiff also moves
removed the action to this Court pursuant to this Court’s
diversity jurisdiction.
2
to strike certain affirmative defenses raised by the defendants,
and to preclude certain defense experts from testifying or being
considered by the Court, or, in the alternative, for a Daubert
hearing regarding defendants’ proposed expert witnesses.2 Finally,
defendant Sullivan moves to preclude testimony of plaintiff’s
expert
witnesses
on
grounds
that
the
testimony
is
based
on
information that was not disclosed in discovery.
For the reasons set forth below, I grant defendants’ motions
for summary judgment, deny plaintiff’s motion for summary judgment,
and deny as moot plaintiff’s motion to strike defenses and preclude
testimony, and defendant Sullivan’s motion to strike.
BACKGROUND
Plaintiff Raeanna Steffenhagen was born on February 12, 1989.
In October of that year, when she was approximately 8 months old,
Steffenhagen moved with her mother, Marian Mohr, to 22 Karnes
Street in the city of Rochester, New York.
Mohr rented the
premises from defendants Norman and Lucille Morrill, the owners of
the property.
Mohr received rental assistance from the Monroe
County, New York, Department of Social Services, (“Monroe County”)
which paid all of Mohr’s rental expenses directly to the Morrill
2
A Daubert hearing is a hearing held by the Court for the
purpose of determining whether or not expert scientific testimony
proffered by any party may be admitted at trial. See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
3
defendants by check.
Mohr lived at 22 Karnes Street with her
daughter for approximately 2 years.
On October 1, 1991, plaintiff moved with her mother to 15
Myrtle Street in the city of Rochester, a property owned by
defendant Robert Sullivan.
Again, Monroe County paid for all of
Mohr’s rental expenses directly to Sullivan. Plaintiff lived there
until no later than August, 1992, at which time she and her mother
moved to 57 Lime Street in Rochester, New York, a property owned by
defendant Sonja Suhr.
Mohr continued to receive rental assistance
from Monroe County, which was paid directly by check to Suhr.
When
plaintiff moved into the apartment at 57 Lime Street, she was
approximately three and a half years old.
She and her mother moved
out of the apartment on Lime Street on September 30, 1993, when
plaintiff was approximately four years and eight months old.
According to Steffenhagen’s mother, Steffenhagen was first
diagnosed with an elevated level of lead in her blood sometime
between October, 1989 and September, 1991 (when Steffenhagen was
between the age of eight months and two years and eight months)
while the two were living at 22 Karnes Street.
See Deposition
Transcript of Marian L. Mohr (hereinafter “Mohr T.”) at p. 312-313.
Although
the
Amended
Complaint
alleges
(upon
information
and
belief) that the owners of 22 Karnes Street knew that pealing,
flaking, or chipping lead paint was present at the premises, there
is no evidence that the plaintiff’s mother ever complained of any
4
pealing, chipping, or flaking paint inside or on any exterior
surface of 22 Karnes Street. The Morrill defendants, the owners of
22 Karnes Street, further deny that they were aware of any pealing,
chipping, or flaking lead paint located inside the premises during
Steffenhagen’s tenancy.
Records
provided
by
the
defendants
indicate
that
while
Steffenhagen lived at 22 Karnes Street, she was tested for the
presence of lead in her blood on April 16, 1991.
See Exhibit 11 to
the February 5, 2013 Affidavit of Marsha Harris.
At that time, it
was determined that Steffenhagen had a blood-lead level of 28.0
micrograms of lead per deciliter of blood.3 The April 16, 1991 test
was the only time plaintiff was tested for lead poisoning while she
lived at 22 Karnes Street.
Steffenhagen was tested three times for lead poisoning while
she resided at 15 Myrtle Street.
On December 10, 1991, she was
found to have a lead level of 25.0 ug/dl.
Five months later, on
May 11, 1992, her level was 17.0 ug/dl.
Two months after that
test, on July 10, 1992, her lead level was 20.0 ug/dl.
Again,
although plaintiff alleges generally in the Amended Complaint that
defendant Sullivan, the owner of 15 Myrtle Street, knew of a
dangerous
lead paint
condition
at
3
the
premises,
there
is
no
Micrograms are abbreviated as “ug.” A deciliter, or
1/10th of a liter, is abbreviated as “dl.” According to an
August 2005 Report from the Centers for Disease Control and
Prevention, blood-lead levels greater than 10 ug/dl in children
correspond to decreased intellectual quotient (“IQ”) scores. See
Exhibit 6 to the Affidavit of Andy Williams-Lopez, Ph.D.
submitted in support of plaintiff’s motion for summary judgment.
5
evidence in the record suggesting that Steffenhagen’s mother ever
complained about any chipping, pealing, or flaking paint in or
outside of 15 Myrtle Street during the 10 months she lived there.
Steffenhagen’s mother did state in an affidavit, however, that she
noticed chipping and peeling paint in window wells located in the
kitchen, and that she recalled seeing Steffenhagen putting paint
chips in her moth when she lived there.
December 4, 2012 Affidavit
of Marian Mohr at ¶ 7.
Plaintiff was tested only one time for lead poisoning during
the time she lived at 57 Lime Street.
On February 17, 1993, her
lead level was determined to be 21.0 micrograms of lead per
deciliter of blood.
There is no indication that she was tested
again before she moved out of the apartment on September 30, 1993.4
Steffenhagen’s mother stated that she noticed chipping and peeling
paint in the window well in the living room of 57 Lime Street, as
well as chipping paint in the attic.
Marian Mohr at ¶ 9.
December 4, 2012 Affidavit of
Plaintiff’s mother further testified that 57
Lime was inspected for the presence of lead paint, and that
defendant Sonja Suhr, was required to perform remedial work to
abate the lead-paint nuisance.
Marian Mohr at ¶ 10.
December 4, 2012 Affidavit of
Defendant Suhr alleges that prior to
4
Additional lead poisoning tests conducted on the plaintiff
after she moved out of any apartment owned by the defendants
revealed levels of 14.0 ug/dl on November 11, 1994; 10.0 ug/dl on
June 28, 1995, and 9.0 ug/dl on June 20, 1996.
6
receiving any notice from county health inspectors indicating that
lead paint was found at the premises, she was unaware of the
presence of lead paint in the apartment, or of chipping or peeling
paint.
She further alleges that Steffenhagen’s mother never
complained of chipping, flaking, or peeling paint in the apartment.
On September 24, 2009, at the age of 20, plaintiff brought the
instant action on behalf of herself for alleged lead poisoning that
occurred during
a
four
September 30, 1993.
year
period between
October
1989 and
According to the Amended Complaint, the
alleged lead poisoning caused her to become “severely, seriously
and permanently injured.”
Amended Complaint at ¶¶ 34, 35, 46, 47,
61, 72, 86, 97. Although the Complaint alleges severe, serious and
permanent injuries suffered by the plaintiff, it does not further
elaborate on the nature of the injuries.
Plaintiff, through a report submitted by an expert, alleges
that she suffers from damage to her brain “as manifested by
neurobehavioral
deficits
and disorders,
learning
deficits
and
disabilities, and depression of her intelligence quotient” as a
result of lead poisoning.
Blatt, M.D., at p. 9.
December 4, 2012 Declaration of Susan
There is no evidence, however, that
plaintiff herself or any parent or guardian of the plaintiff sought
treatment for her alleged deficits.
Plaintiff testified that she
could not recall ever having any discussion with a medical doctor
regarding her alleged lead poisoning. Deposition Transcript of
7
Raeanna Steffenhagen (hereinafter “Steffenhagen T.”) at p. 100.
Plaintiff
further
testified
that
she
could
not
recall
ever
discussing lead poisoning with any psychologist or psychiatrist.
Id.
The plaintiff testified that she completed school through the
seventh grade.
Steffenhagen T. at p.
40.
Steffenhagen’s mother
explained that she was expelled from school at that time. December
1, 2009 Affidavit of Marian Mohr at ¶ 6.
The record indicates that
Steffenhagen frequently changed residences throughout her preschool and school years.
According to Steffenhagen’s mother, in
addition to living at three different apartments in the City of
Rochester prior to age five, Steffenhagen moved to a trailer home
in the Town of Cohocton, New York, with her mother, and lived there
for approximately a year.
Id.
at ¶ 5.
The family then moved back
to Rochester, and lived on Murray Street for “a couple of years.”
Id.
The family then moved to 11 Zimbach Street in the city of
Rochester for a couple of years.
Id.
of
resided
her
mother’s
house,
approximately a year.
Id.
and
Steffenhagen then moved out
with
her
father
for
Thereafter, pursuant to a court order,
Steffenhagen lived with Ms. Dawn Wells for approximately a year.
Id.
Following that period, Steffenhagen moved back in with her
mother in Macedon, New York, where she again attempted to complete
seventh grade, but was expelled from school.
8
Id.
According to
Mohr, Steffenhagen was also expelled from two other middle schools.
Id. at ¶ 12.
Defendant Sullivan contends that any deficits in plaintiff’s
functioning
are
a
result
of
difficult
family
circumstances
including being the third child of a non-marital union; being
subjected to prenatal marijuana and cigarette use; being raised by
authority figures who suffered from alcoholism, illegal drug use,
and mental illness; being subjected to physical and possible sexual
abuse; being raised in an unstable, highly stressful environment
along with several other factors.
See Report of Dr. David M.
Erlanger, Ph.D. at ¶¶ 7, 10, 12, 13
Plaintiff objects to the
conclusions of defendant Sullivan’s proposed expert, and asks that
the expert’s opinions be stricken on grounds that they are not
reliable.
According to the plaintiff, her cognitive deficits are
a result of the lead poisoning she suffered when residing at the
defendants’ properties, and it is her cognitive deficits which have
caused her to not complete school beyond the seventh grade.
DISCUSSION
I.
The Parties’ Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant
is
entitled
to
judgment
9
as
a
matter
of
law."
When
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial
Co.
Scott, 550 U.S. at 380 (citing Matsushita Elec.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
586-587
(1986)).
II.
Standard for Establishing Liability of a Landlord for
damages caused by lead poisoning.
In general, to state a claim for liability as a result of a
defendant’s negligence, a plaintiff must demonstrate that the
defendant owed the plaintiff a cognizable duty of care, breached
that duty; and that the plaintiff suffered damages as a proximate
result of the breach.
Evans v. U.S., --- F.Supp.2d ----, 2013 WL
3967119, *24 (E.D.N.Y., 2013 July 31, 2013).
In cases involving
alleged lead poisoning that resulted from exposure to lead paint
located in an apartment, to establish the liability of a defendant
landlord, the plaintiff must show that the landlord “had actual or
constructive notice of, and a reasonable opportunity to remedy, the
hazardous condition,” but failed to do so. Pagan v. Rafter, 969
N.Y.S.2d 265, 267 (N.Y.A.D. 4th Dept., 2013), (quoting Rodriguez v.
Trakansook, 887 N.Y.S.2d 860 (N.Y.A.D. 2d Dept., 2009)
If a
plaintiff is unable to establish that the landlord had notice of a
10
hazardous lead-paint condition, the plaintiff will be unable to
establish that the landlord had a duty to prevent the plaintiff
from being exposed to the condition, or to remedy the condition.
See Carrero
v.
266
Himrod
Associates,
LLC,
770
N.Y.S.2d
747
(N.Y.A.D. 2d Dept., 2004)(no duty to prevent exposure to or remedy
chipping
or
constructive
pealing
notice
paint
of
the
where
landlord
condition
of
had
no
actual
the
paint
in
or
the
apartment); Wynn ex rel. Wynn v. T.R.I.P. Redevelopment Associates,
745 N.Y.S.2d 97 (N.Y.A.D. 3d Dept., 2002);
Gonzales v. Nemetz,
714 N.Y.S.2d 751 (N.Y.A.D. 2d Dept., 2000)(landlord had no duty to
prevent exposure to, or remedy chipping or pealing paint where
landlord was unaware that chipping or pealing paint contained
lead); Boler v. Malik, 700 N.Y.S.2d 323 (N.Y.A.D. 4th Dept., 1999);
Andrade by Andrade v. Wong, 675 N.Y.S.2d 112 (N.Y.A.D. 2d Dept.,
1998).
To establish that a landlord had a duty to prevent exposure to
or remedy a hazardous lead-paint condition, the plaintiff must
demonstrate that the landlord had actual or constructive notice of
the lead-paint hazard.
To establish actual notice of a hazardous
lead-paint condition, the plaintiff must demonstrate that the
landlord was actually aware that the some or all of the leased
premises
was
painted
with
lead-based
paint,
that
the
paint
containing lead was in a state of disrepair (through flaking,
pealing, or cracking) and that it presented a danger of lead
11
exposure to infants who might ingest flakes or chips of paint
containing lead.
See e.g. Stover v. Robilotto, 716 N.Y.S.2d 146
(N.Y.A.D. 3d Dept., 2000), order aff'd, 734 N.Y.S.2d 541, (N.Y.,
2001)(evidence of a landlord's mere awareness of chipping paint
will generally not satisfy the requirement that the landlord was
aware
of
a
defective
lead
paint
condition);
Flores
ex
rel.
Hernandez v. Cathedral Properties LLC, 955 N.Y.S.2d 324, 325
(N.Y.A.D. 1st Dept.,
2012) (defendants not liable for lead paint
poisoning where defendants had no knowledge that children under the
age of seven were residing in the leased premises).
To establish that a landlord had constructive notice of a
hazardous lead paint condition, the plaintiff must establish that
“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” Chapman v. Silber, 734
N.Y.S.2d 541, 543 (N.Y., 2001).
See also Pagan, 969 N.Y.S.2d at
267 (“The factors set forth in Chapman v. Silber, ... remain the
bases for determining whether a landlord knew or should have known
of the existence of a hazardous lead paint condition and thus may
be held liable in a lead paint case.”)
To establish that a
landlord retained a right of entry to the premises, the plaintiff
must demonstrate that the landlord retained the right to access the
leased premises without the permission of the tenants.
12
Sanders v.
Patrick, 943 N.Y.S.2d 350 (N.Y.A.D. 4th Dept., 2012)(although
landlord retained key to apartment, landlord did not have right to
enter leased premises without tenants’ permission).
III. Plaintiff has failed to establish Liability for alleged
lead poisoning on the part of any of the defendants.
A.
Defendant Sullivan
Defendant Sullivan, the owner of 15 Myrtle Street in the City
of Rochester, where plaintiff lived from October 1991 to August,
1992, claims that he had no notice, actual or constructive, of any
defective condition resulting in a lead-paint hazard inside or
outside the leased premises.
In support of this contention, he
submits his own sworn testimony demonstrating that at the time he
rented the apartment at 15 Myrtle to the plaintiff’s mother, he was
not aware that lead paint had been banned for residential use; that
older homes contained lead paint, or that lead paint posed a hazard
to young children.
See Deposition Transcript of Robert Sullivan
(hereinafter “Sullivan T.”) at pp. 63-64, 65-67, 114.
He further
testified that he would not enter a tenant’s apartment unless
requested to do so, and would enter only after obtaining specific
permission from the tenant.
See Sullivan T. at p. 135.
Sullivan further submits that there is no evidence in the
record indicating that plaintiff’s mother, or any prior tenant,
ever complained of pealing, chipping, cracking, or loose paint
inside the rented apartment at 15 Myrtle Street.
See Mohr T. at p.
110-111. Although Mohr claimed that she observed cracking paint in
13
a single window well in the kitchen of the apartment, there is no
evidence that she informed Sullivan of this condition.
Moreover, Sullivan submits additional evidence demonstrating
that 15 Myrtle had not been tested for the presence of lead paint
until July, 1993, almost one-year after the plaintiff had moved out
of the apartment. See Sullivan T. at p. 114.
An employee of the
Monroe, New York, County Department of Health, Ms. Lee Houston,
confirmed that no lead inspection of 15 Myrtle had occurred until
July, 21, 1993.
See Deposition Testimony of Lee Houston at p.
32-
33.
Based on the evidence set forth in the record, Sullivan has
established that he did not have actual or constructive notice of
any lead hazard that may have existed at 15 Myrtle street before or
during the plaintiff’s tenancy. There is no evidence that Sullivan
was actually aware, or made aware, of any alleged lead hazard, and
plaintiff has failed to establish that Sullivan had constructive
knowledge of any lead hazard.
As stated above, to establish that
a
knowledge
landlord
had
constructive
of a
lead
hazard,
the
plaintiff must demonstrate, inter alia, that the landlord knew that
the apartment was constructed at a time before lead-based interior
paint was banned, was aware that paint was peeling on the premises,
and knew of the hazards of lead-based paint to young children.
Chapman, 97 N.Y.2d at 15.
In the instant case, plaintiff has
failed to submit any evidence suggesting that Sullivan was aware of
14
pealing paint on the premises, that he knew that lead paint posed
a hazard to children, or that he knew that the apartment was
constructed at a time before lead-based interior paint was banned.
See e.g. Durand ex rel. Assad v. Roth Bros. P'ship Co., 696
N.Y.S.2d 234, 235 (N.Y., 1999) (“the fact that lead paint hazards
frequently
were
the
subject
of
media
reports
did
not
place
[landlord] on notice that a dangerous condition existed in the
plaintiff's apartment.”); Hines by Garret v. RAP Realty Corp., 684
N.Y.S.2d
594,
595
(N.Y.A.D.
2d
Dept.,
1999)(evidence
of
the
widespread media reports addressing the prevalence of lead hazards
in
older
dwellings
insufficient
to
establish
landlord’s
constructive knowledge of dangerous lead paint condition in leased
premises).
In opposition to defendant Sullivan’s motion, the plaintiff
makes many generalized arguments regarding a landlord’s alleged
duty to maintain leased premises in a reasonably safe condition,
including being free of any lead paint hazards.5
But New York
State law explicitly requires that an owner’s duty to maintain
5
Mo Athari, counsel for the plaintiff in the instant case,
made similar generalized arguments regarding liability of
defendants for lead paint poisoning in the case of Hines v Double
D & S Realty Mgt. Corp., 946 N.Y.S.2d 298 (N.Y.A.D. 3rd Dept.,
2013) leave to appeal denied, 2013-809, 2013 WL 5614429 (N.Y.,
Oct. 15, 2013). In that case, the court characterized counsel’s
general reliance on statutory provisions such as Public Health
Law § 1373 and Real Property Law § 235–b (both of which are cited
to the Court in this action) as “misplaced.” Hines, 946 N.Y.S.2d
298.
15
rented areas in a reasonably safe condition excludes any duty to
independently inspect for lead paint hazards. Watson v. Priore, 961
N.Y.S.2d
696,
698
leave
to
appeal
denied,
967
N.Y.S.2d
864
(N.Y.A.D. 4th Dept., 2013) and leave to appeal dismissed in part,
denied in part, 973 N.Y.S.2d 85, (N.Y. 2013) (statutory implied
warranty of habitability does not give rise to a presumption that
landlords had notice of the alleged dangerous condition in their
properties arising from lead paint); Chapman, 734 N.Y.S.2d at 54748 (“We decline 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”).
Plaintiff next argues, in general terms applicable to all
defendants, and without attribution, that “the defendants all
acknowledged a duty to keep the dwelling unit safe, the right of
entry to make repairs . . . . and [that all defendants] were cited
for violation[s] of state statutes and state and/or local codes and
regulations relating to chipping paint or lead hazards that existed
during the tenancy.”
Plaintiff’s Memorandum of Law in Support of
Motion for Summary Judgment at p. 5. Plaintiff, however, fails to
cite any evidence whatsoever that would support this blanket
allegation.
Plaintiff alleges that Sullivan knew that the property at 15
Myrtle was “old.”
General knowledge, however, that a building is
16
“old” fails to establish actual or constructive knowledge that a
lead paint hazard exists.
Hines by Garret, 684 N.Y.S.2d 594
(general knowledge that a building is old, and therefore likely to
contain lead-based paint, does not constitute notice of a lead
paint hazard). Plaintiff also alleges that Sullivan was cited with
many property violations pursuant to Sections 90-21(C) and 90-21(D)
of the Municipal Code of the City of Rochester.
A review of the
citations, however, reveals that none of the alleged violations
were related to lead paint hazards.
See Exhibit 2 to Declaration
Number Two of Mo Athari, docket item no.
82-2.
Because plaintiff has failed to establish that defendant
Sullivan had any notice of a dangerous or defective condition with
respect
to
lead
paint,
I
find
that
plaintiff
has
failed
to
establish that Sullivan may be held liable for alleged lead paint
poisoning.
I therefore grant defendant Sullivan’s motion for
summary judgment.
B.
Defendants Norman and Lucille Morrill
Defendants Norman and Lucille Morrill are the owners of 22
Karnes Street, where plaintiff lived from approximately October,
1989, to October 1991.
The Morrill defendants contend that they
are not liable to plaintiff for her alleged lead poisoning because
they had no notice, actual or constructive, of any defective lead
paint condition at the rented property prior to or during the
plaintiff’s tenancy.
In support of this contention, the Morrill
17
defendants note that plaintiff’s mother never noticed or complained
of any defective paint condition inside the leased premises.
Mohr T. at p. 304.
See
Although plaintiff’s mother testified that
there was chipping paint on a back porch, there is no indication or
evidence that the chipping paint contained lead.
Accordingly,
while knowledge of the condition of the exterior and common areas
of a property may be imputed to the owner (see Wynn ex rel. Wynn,
745 N.Y.S.2d 97) as stated above, an owner’s knowledge that paint
is chipped or flaked does not establish that the owner was aware
that the chipped or flaked paint contained lead. Stover, 716
N.Y.S.2d 146.
Nor has plaintiff established that the allegedly
chipped or peeling paint contained lead. There is no evidence that
22 Karnes Street was ever inspected for the presence of lead paint
during
plaintiff’s
attempts
to
residency
introduce
there.
evidence
of
And
lead
although
plaintiff
contamination
at
a
neighboring property, 20 Karnes Street, from an inspection that
occurred on February 17, 2012, (21 years after the plaintiff moved
out of 22 Karnes Street), such evidence is inadmissible, as the
testing occurred 21 years after the alleged exposure, and was
conducted in an apartment where the plaintiff did not live.
In further support of their motion, defendant Norman Morrill
testified at his deposition that he exclusively handled all aspects
of owning and renting 22 Karnes Street, and that his wife Lucille
played no role whatsoever in managing the property. Norman Morrill
18
testified that 22 Karnes Street had never been tested for the
presence of lead paint, and that at the time he rented the
apartment to the plaintiff’s mother, he was not aware of any
hazards presented by lead paint.
Morrill at p. 74.
Plaintiff
Deposition Testimony of Norman
Plaintiff has not controverted this evidence.
alleges
that
the
Morrill
defendants
knew
that
property at 22 Karnes was “old,” that the windows were “old,” and
that the windows had many layers of paint.
As stated above,
however, general knowledge that a building is “old” fails to
establish actual or constructive knowledge that a lead paint hazard
exists. Hines by Garret, 684 N.Y.S.2d 594. Plaintiff also alleges
that the Morrill defendants were cited with violations of Sections
90-21(C)
and
90-21(D)
of
the
Municipal
Code
of
the
Rochester related to the maintenance of their property.
of
the
citations,
however,
reveals
that
none
violations were related to lead paint hazards.
of
the
City
of
A review
alleged
See Exhibit 2 to
Declaration Number Two of Mo Athari (docket item no. 82-2).
Based on the evidence in the record, I find that plaintiff has
failed to establish that the Morrill defendants had notice of any
defective lead paint condition at 22 Karnes Street, and therefore
has failed to establish that the defendants had any duty to remedy
the alleged condition or prevent plaintiff’s exposure to the
alleged condition.
I therefore grant the Morrill defendants’
motion for summary judgment.
19
C.
Defendant Suhr
Defendant Sonja Suhr, the owner of 57 Lime Street during the
time that plaintiff lived there (from August, 1992 to October,
1993) seeks summary judgment on the issue of liability on grounds
that she did not have actual or constructive notice of any lead
paint hazard until she received a notice in February 1993 from the
Monroe County Department of Health that lead paint was present in
the apartment, and that once she learned of the lead-paint hazard,
she promptly remedied the condition.
In support of her motion,
Suhr
never
notes
that
plaintiff’s
mother
complained
of
any
defective conditions in the apartment either before she moved in or
during her tenancy.
Mohr T. at p. 337-338.
Nor did Mohr complain
at any time of any chipping paint. Mohr T. at p. 337-338.
Indeed,
even after Mohr first discovered chipping paint in February, 2003,
she did not inform Suhr of the condition.
Mohr T. at p. 345.
The evidence in the record reveals that Suhr only learned of
the lead paint condition at 57 Lime Street after the Monroe County
Department
of
Health
conducted
a
lead
paint
inspection,
and
notified Suhr that lead paint, and pealing lead paint, had been
found in the apartment.
The uncontroverted evidence in the record
also reveals that once Suhr learned of the lead paint hazard, she
took prompt steps to abate the condition, and that the Monroe
County Department of Health determined the condition to have been
corrected as of June 17, 1993.
20
Once a plaintiff has established that a landlord had actual or
constructive notice of a dangerous condition, to impose liability,
the plaintiff must establish that the landlord failed to act
reasonably in correcting the dangerous condition.
See Juarez by
Juarez v. Wavecrest Management Team Ltd., 649 N.Y.S.2d 115(N.Y.,
1996) (once defendant has notice of defective condition, defendant
must be given reasonable opportunity to correct it.); Miller ex
rel. Miller v. 135 Realty Associates, L.P., 698 N.Y.S.2d 681 (1st
Dep't 1999) (plaintiff can establish a landlord’s breach of duty by
demonstrating that the landlord's actions in abating the lead paint
hazard were not reasonable under the circumstances).
In the instant case, the uncontroverted evidence reveals that
upon learning of the lead paint hazard present at 57 Lime Street,
defendant Suhr hired contractors to abate the hazard, and indeed,
in
less
than
condition.
four
months,
had
corrected
the
dangerous
lead
Defendant Suhr has submitted the written notice issued
by the Monroe County Department of Health in June, 1993 indicating
that the lead paint hazard had been corrected.
This evidence
demonstrates that the defendant acted reasonably to abate the
hazardous condition, and plaintiff has failed to provide any
evidence that defendant Suhr acted unreasonably once she was
informed of the lead paint hazard.
See e.g. Marte v. 1090
University Ave., LLC, 856 N.Y.S.2d 559 (1st Dep't 2008)(defendant
acted reasonably in abating lead paint hazard where lead paint was
21
immediately abated after city department of health issued abatement
order, and department issued report confirming that the lead paint
violation had been corrected less than two months after landlord
acquired apartment building.); Miller ex rel. Miller, 698 N.Y.S.2d
681
(landlord's
cursory
inspections
and
inadequate
abatement
attempts failed to meet the standard of reasonable care).
Because
Defendant Suhr has established that she acted reasonably in abating
the lead paint hazard upon learning of the dangerous lead paint
condition, she may not be held liable for plaintiff’s alleged lead
paint poisoning.6
Accordingly, I grant defendant Suhr’s motion for
summary judgment.
III. The Parties’ Remaining Motions
For the reasons set forth above, I deny plaintiff’s motion for
summary judgment on the issue of the defendants’ liability for
causing her alleged lead poisoning.
Plaintiff has failed to
establish that defendants Norman Morrill, Lucille Morrill, or
Robert Sullivan had any notice, either actual or constructive, of
a dangerous lead paint condition in their respective properties.
Plaintiff has further failed to establish that defendant Suhr had
any notice of a defective lead paint condition until February,
1993.
Plaintiff
has
failed
to
6
establish
that
Suhr
acted
Although plaintiff’s complaint alleges that Suhr
negligently abated the lead paint hazard, plaintiff has presented
no evidence or further argument that the abatement process was
conducted negligently. Accordingly, I find that plaintiff has
failed to establish any claim of negligent abatement.
22
unreasonably or negligently once she learned of the lead paint
condition.
Rather, the record shows that once Suhr learned of the
lead paint condition, she abated the condition in less than four
months.
Plaintiff’s motion to strike certain affirmative defenses
raised by the defendants, and to preclude certain defense experts
from testifying or being considered by the Court, or, in the
alternative, for a Daubert hearing are denied as moot, as is
defendant Sullivan’s motion to strike.
CONCLUSION
For the reasons set forth above, defendant Sullivan’s motion
for summary judgment (docket item no. 71) is granted.
The Morrill
defendants motion for summary judgment (docket item no. 111) is
granted. Defendant Suhr’s motion for summary judgment (docket item
no. 112) is granted.
Plaintiff’s motion for summary judgment and for a Daubert
hearing (docket item no. 77) is denied.
Defendant Sullivan’s
motion to strike (docket item no. 99) is denied.
The Clerk of the Court is directed to enter judgment in favor
of all defendants and close the case.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A.
Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
November 25, 2013
23
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