Whether a triable issue of fact exists as to a landlord's notice of the risk of a lead paint hazard where tenant shows that the landlord was aware of the danger of lead paint, knew that paint was peeling on the premises, knew that the apartment was built before the use of lead paint was prohibited, and assumed a duty to repair the premises.

Yes. Under these circumstances, there is a triable issue of fact as to whether a landlord is put on notice of a lead paint hazard and a jury may infer that the landlord should have known of the condition.

This opinion resolved two separate cases, Chapman v. Silber and Stover v. Robilotto, both involving landlord liability where tenants' children developed health problems related to lead paint in their apartments. The Chapman case involved a family who, in August 1994, moved with their one-year old son into Defendant landlord's apartment. On August 21, 1995 a test revealed high levels of lead in the son's blood, and he was hospitalized. Ms. Chapman, Plaintiff, claimed that Defendant saw the condition of the peeling paint in her apartment during their tenancy, knew the building was old, and was aware of the hazards of lead paint. The Supreme Court denied Defendant's motion to dismiss, finding issues of fact as to notice. The Appellate Division reversed and dismissed the complaint. The Court of Appeals reversed the dismissal, finding a triable issue of fact as to Defendant's knowledge of the hazardous condition.

In the second case, Stover, Ms. Stover moved into her apartment in February 1993 with her 5-year old son, and gave birth to her younger son in March. In September 1994, she witnessed her older son eating paint from holes in the apartment walls.Test results revealed high levels of lead in the son's blood, which required him to be hospitalized. Her landlord, Defendant Robilotto, claimed not to have known that Ms. Stover had a young child when she moved into the apartment. Defendant also alleged that although Ms. Stover requested several repairs during her tenancy, which Defendant responded to accordingly, she never complained about the condition of the paint. The Supreme Court granted Defendant's motion for summary judgment, concluding that Defendant did not have notice of a hazardous lead paint condition. The Appellate Division affirmed, as did the Court of Appeals.

The Court found that the Appellate Division in Chapman erred when it reasoned that notice principles required that the landlord be aware of the presence of lead in paint. Lead is undetectable to the senses, and a landlord cannot actually know it is present without testing. The Court noted, however, that landlords may not use the invisibility of lead in paint to avoid liability. The Court held that a triable issue of fact is raised when a plaintiff shows that the landlord 1) retained a right of entry and assumed a duty to make repairs, 2) knew that the apartment was constructed at a time before lead paint was banned, 3) was aware that paint was peeling, 4) knew of hazards of lead paint to children and 5) knew that young children lived in the apartment. The Court held that a jury may charge a landlord with notice where he knows of the existence of many conditions indicating a lead paint hazard to young children.

The Court found that Plaintiff Chapman raised a triable issue to as to the landlord's knowledge of a high degree of risk that there was lead paint danger. In fact, at trial, Defendant admitted the possibility that chipped or peeling paint could have been present in the apartment. Therefore, the Court remanded to determine whether the landlord knew, or should have known, of the lead paint condition in the apartment. In Stover, however, there was no evidence that the landlord had actual or constructive notice of chipped or peeling paint in the apartment. Therefore, in Stover, the Court found that the evidence was insufficient to raise an issue of fact as to whether Defendant knew or should have known of a lead paint hazard, and the Court affirmed the Appellate Division's dismissal of the complaint.