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.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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
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.
Yes. The Court of Appeals reversed and remanded the lower court's granting
of Plaintiff's summary judgment motion.
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.
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.
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
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).
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
Report of the Mayor's Advisory Committee to Prevent Childhood Lead-Paint
Poisoning, Fourth Revision (1993).
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.
Morales v. Felice Properties Corp., 633 N.Y.S.2d 305 (N.Y. App.
Nieves v. 1097 Walton Realty Co., 633 N.Y.S.2d 115 (N.Y. App. Div.
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).
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).
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
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
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.
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.
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).
Richard J. Colosimo, '97
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Christopher M. Dube, '98
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