Opinion
CA 01-00684
February 1, 2002.
Appeal from an order of Supreme Court, Monroe County (Affronti, J.), entered December 1, 2000, which granted defendants' motion for summary judgment.
CAROLE C. LIVSEY, P.C., ROCHESTER, KAVINOKY COOK, LLP, BUFFALO (MARILYN A. HOCHFIELD OF COUNSEL), FOR PLAINTIFF-APPELLANT.
VOLGENAU BOSSE, LLP, BUFFALO (PAULA M. EADE NEWCOMB OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: PINE, J.P., WISNER, KEHOE, GORSKI, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendants in part and reinstating the amended complaint against defendants Montgomery Neighborhood Center, Inc. and Westminster Presbyterian Church and as modified the order is affirmed without costs.
Memorandum:
For reasons stated in its decision, Supreme Court properly granted that part of defendants' motion seeking summary judgment dismissing the amended complaint against defendants County of Monroe and Monroe County Department of Social Services. The court erred, however, in granting that part of defendants' motion seeking summary judgment dismissing the amended complaint against defendants Montgomery Neighborhood Center, Inc. (Montgomery) and Westminster Presbyterian Church (Westminster). Plaintiff commenced this action individually and on behalf of her infant daughter, alleging that her daughter was exposed to lead paint while residing in a house owned by Westminster and leased to Montgomery for the purpose of providing emergency short-term housing to families in need. Montgomery failed to meet its initial burden of establishing lack of constructive notice as a matter of law ( see, Chapman v. Silber, 97 N.Y.2d 9 [decided Nov. 15, 2001]). Westminster failed to meet its initial burden of establishing that it took any precautionary measures to prevent further exposure of plaintiff's daughter to lead between the date on which it received notice of the hazardous condition and the date on which plaintiff moved from the premises ( see, Irizarry v. Diep Chu, 283 A.D.2d 947). Thus, the motion with respect to those defendants should have been denied, "regardless of the sufficiency of the opposing papers" ( Rodgers v. Earl, 249 A.D.2d 990; see, Guck v. Paloz, 269 A.D.2d 777, 778). We therefore modify the order by denying defendants' motion in part and reinstating the amended complaint against Montgomery and Westminster.