Juarez v. Wavecrest Management Team Ltd., 88 N.Y.2d 628 (July 2, 1996).

LANDLORD - TENANT - LEAD EXPOSURE - CONSTRUCTIVE NOTICE

LANDLORDS MUST REMEDY A DANGEROUS LEAD PAINT CONDITION ONLY IF THEY HAVE ACTUAL OR CONSTRUCTIVE NOTICE THAT A CHILD UNDER SEVEN LIVES IN THE APARTMENT.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

Plaintiff Noemi Juarez and her two infant daughters sublet a portion of an apartment, despite a lease provision prohibiting sublets. After almost a year of tenancy, two-year old Peggy tested positive for lead poisoning. Samples of paint from the apartment revealed high levels of lead in violation of City Health Code § 173.13 (c) - (d). The New York City Department of Health issued an Order to Abate Nuisance to Wavecrest Management Team, the building managing agent, who subsequently notified owner landlord Mayaghor Realty. Nevertheless, the landlord failed to take corrective action.

Juarez brought a negligence action against Mayaghor. The trial court granted summary judgment for Juarez, concluding that defendants had acquired notice of both the lead condition and the fact that a child was living in the apartment upon receiving the Department of Health Order. The Appellate Division affirmed, and Mayaghor appealed.

ISSUE & DISPOSITION

Issue

Whether a landlord must receive actual or constructive notice of the residency of a child under age seven in order to be obligated to remedy a dangerous lead paint condition.

Disposition

Yes. The Court of Appeals reversed and remanded the lower court's granting of Plaintiff's summary judgment motion.

AUTHORITIES CITED

Cases Cited by the Court

Mas v. Two Bridges Assocs., 75 N.Y.2d 680 (N.Y. 1990).
Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559 (N.Y. 1987).
Worth Distribs., Inc. v. Latham, 59 N.Y.2d 231 (N.Y. 1983).
Trimarco v. Klein, 56 N.Y.2d 98 (N.Y. 1982).
Madrid v. New York, 42 N.Y.2d 1039 (N.Y. 1977).
Putname v. Stout, 38 N.Y.2d 607 (N.Y. 1976).
Van Gaasbeck v. Webatuck Cent. Sch. Dist. No. 1, 21 N.Y.2d 238 (N.Y. 1967).
Altz v. Leiberson, 233 N.Y. 16 (N.Y. 1922).
New York City Coalition to End Lead Poisoning v. Koch, 524 N.Y.S.2d 314 (N.Y. Sup. Ct. 1987), aff'd, 526 N.Y.S.2d 918 (N.Y. App. Div. 1988).
Gildea v. Harris Fine Realty & Constr. Co., 292 N.Y.S. 55 (N.Y. App. Div. 1936).

Other Sources Cited by the Court

New York, N.Y. Admin. Code § 27-2013[h] (1996).
Centers for Disease Control, Preventing Lead Poisoning in Young Children (1991).
Sarah E. Coyne, Comment, Lead Paint Abatement: Who Should Pay? 2 Wis. Envtl L.J. 113 (Winter 1995).
Thomas J. Miceli, Katherine A. Pancak & C. F. Sirmans, Protecting Children From Lead-Based Paint Poisoning: Should Landlords Bear the Burden? 23 B.C. Envtl. Aff. Rev. 1 (Fall 1995).
N.Y. Mult. Dwell. Law § 78 (McKinney 1974).
Mass. Gen. L. ch. 111, § 199 (1995).
Lead-Based Paint Hazard Reduction and Financing Task Force, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing (1995).
Report of the Mayor's Advisory Committee to Prevent Childhood Lead-Paint Poisoning, Fourth Revision (1993).

RELATED SOURCES

Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (N.Y. 1994).
Cortes v. Riverbridge Realty Co., 642 N.Y.S.2d 692 (N.Y. App. Div. 1996).
Morales v. Felice Properties Corp., 633 N.Y.S.2d 305 (N.Y. App. Div. 1995).
Nieves v. 1097 Walton Realty Co., 633 N.Y.S.2d 115 (N.Y. App. Div. 1995).
Thomas Gore v. People's Sav. Bank, 665 A.2d 1344 (Conn. 1995).
Bencosme v. Kokoras, 507 N.E.2d 748 (Mass. 1987).
Felton v. Spratley, 640 A.2d 1358 (Pa. Super. Ct. 1994).
N.Y. Veh. & Traf. Law § 1174(b) (McKinney 1996).
Restatement (Second) of Torts § 358(1) (1965).
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63 (5th ed. 1984).

COMMENTARY

State of the Law Before Juarez

This is a case of first impression with regard to a landlord's liability under Local Law 1, Administrative Code of New York City § 27-2013(h). Local Law 1 places a specific duty on owners to abate lead paint where children under seven reside. Landlords have the authority under Local Law 1 to enter dwelling units where children reside to inspect and repair hazardous lead conditions.

Under common law, a landlord could be held liable for any injury caused by a defective or dangerous condition upon leased premises if (1) the landlord was under a statutory or contractual duty to maintain the premises in repair and (2) the landlord reserved the right to enter for inspection and repair. See Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 565-566 (N.Y. 1987). First and Second Department cases dealing with the Administrative Code of New York City § 27-2013(h) held that an owner of property is charged with a nondelegable duty to keep the dwelling in good repair and to remove or cover lead paint therein. See, e.g., Cortes v. Riverbridge Realty Co., 642 N.Y.S.2d 692 (N.Y. App. Div. 1996); Morales v. Felice Properties Corp., 633 N.Y.S.2d 305 (N.Y. App. Div. 1995); Nieves v. 1097 Walton Realty Co., 633 N.Y.S.2d 115 (N.Y. App. Div. 1995).

The burden has traditionally been on the plaintiff to show (1) that a dangerous condition existed on the premises and (2) that the landlord had notice of the condition and a reasonable opportunity to repair it. The Court of Appeals addressed the issue of a notice requirement in Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 (N.Y. 1994). The Court of Appeals held that "liability could be predicated only on failure of defendants to remedy the danger presented by the liquid after actual or constructive notice of the condition." Id. at 969.

Effect of Juarez on Current Law

Juarez establishes that Local Law 1 does not impose "a continuous and affirmative duty" on owners to ascertain whether a child six years of age or younger resides in any of their dwelling units. The Court states that the absence of language in Local Law 1 imposing a duty on landlords to inspect for the presence of children demonstrates that no such duty was intended. The Court holds that given actual or constructive notice to the building owner of the residence of a child under seven, a landlord must remedy a hazardous lead paint condition.

The Court states that "Local Law 1 does not itself create an additional standard of care. Rather, Local Law 1 defines a particular hazardous condition . . . to which a landlord's general duty to repair applies." Juarez v. Wavecrest Management Team Ltd., 1996 N.Y. Int. 153 at para. 25. The court interprets Local Law 1 as imposing a standard of reasonableness on the landlord's actions. See N.Y. Mult. Dwell. Law § 78 (McKinney 1974). Thus, landlords may avoid liability by showing that they exercised due care and acted "reasonably under the circumstances." Juarez at para. 26.

Unanswered Questions

The Court itself clearly identifies one unanswered question: whether a court may interpret an Administrative Code provision as giving rise to negligence per se. Normally, only state legislative enactments carry this weight, and the violation of local ordinances is only "some evidence of negligence." The Court avoids answering this question since it interprets the Administrative Code provision as including a reasonableness component.

Noticeably absent is any substantial discussion of the implied civil cause of action for violation of the Administrative Code provision. The Court's implicit holding that Administrative Code § 27-2013(h)(1) does not establish an implied right of action is difficult to reconcile with past judicial constructions of similar statutory language. See, e.g., Van Gaasbeck v. Webatuck Cent. Sch. Dist. No. 1, 21 N.Y.2d 239 (N.Y. 1967) (finding absolute liability in an implied right of action arising from similar statutory language in N. Y. Veh. & Traf. Law § 1174(b) (McKinney 1974).

Survey of the Law in Other Jurisdictions

Other state courts address the issue of constructive or actual notice to the landlord in cases of either hazardous conditions or the residence of a young child. In Felton v. Spratley, the Pennsylvania Superior Court found actual notice is required before a landlord is liable for injuries from lead paint. 640 A.2d 1358 (Pa. Super. Ct. 1994). The dissent argued that general awareness of lead paint poisoning gives rise to a duty on the part of the lessor. Id. at 1366-67.

In Thomas Gore v. People's Sav. Bank, the Connecticut Supreme Court allocated the burden of proving the absence of constructive notice to the landlord. 665 A.2d. 1341 (Conn. 1995). The court defined constructive notice as "knowledge of conditions the landlord could have know about in the exercise of reasonable care." Id. at 1344. Similarly, the Connecticut Supreme Court allocated to the plaintiff the corresponding burden of proving actual notice and allowed the landlord the excuse of lack of notice.

The Massachusetts Supreme Judicial Court concluded that notice was neither an issue nor absence of notice an excuse. Landlords in Massachusetts are strictly liable for compensatory damages resulting from violations of lead paint laws: "An owner shall be liable for all damages caused by his failure to perform the duties required of him pursuant to [Section 197]." Mass. Gen. Laws Ann. ch. 111, § 199 (West 1995). According to the Massachusetts court, this language "virtually compels the conclusion that neither negligence nor knowledge of the risk is an element of liability ...." Bencosme v. Kokoras, 507 N.E.2d 748, 750 (Mass. 1987).

Prepared By:

Richard J. Colosimo, '97
Rene M. Devlin, '97
Christopher M. Dube, '98
Denise A. Johnson, '98
Kelly M. Mann, '98
Rafael E. Morell, '98
Anne R. Myers, '97
Jason A. Shrensky, '98