Opinion
60 350392/10.
01-28-2016
Alihja HILL, by Her Mother and Natural Guardian, Mayra Perez, etc., et al., Plaintiffs–Appellants, v. LORAC HOUSE, INC., Defendant–Respondent.
Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for appellants. Brody & Branch LLP, New York (Mary Ellen O'Brien of counsel), for respondent.
Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for appellants.
Brody & Branch LLP, New York (Mary Ellen O'Brien of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered July 15, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiffs, through the affidavit of their expert, proffered evidence that their apartment at defendant's premises was tested in 2008, and lead paint was located in the baseboards and closet supports (compare Concepcion v. Walsh, 38 A.D.3d 317, 831 N.Y.S.2d 402 1st Dept.2007 ). This finding, along with proof that defendant was on notice that a child under the age of seven resided at the apartment, was sufficient evidence that defendant was on constructive notice of a lead hazard (see Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 646–647, 649 N.Y.S.2d 115, 672 N.E.2d 135 1996; Woolfalk v. New York City Hous. Auth., 263 A.D.2d 355, 692 N.Y.S.2d 386 1st Dept.1999 ). That the apartment was inspected in 2004 and 2008, and no lead was found, are facts that go to the reasonableness of defendant's behavior, an issue to be decided by a jury (see Rivas v. 1340 Hudson Realty Corp., 234 A.D.2d 132, 136, 650 N.Y.S.2d 732 1st Dept.1996 ).
In light of the parties' competing expert affidavits, the issue of whether the infant's cognitive deficits were caused by exposure to lead, or by solely unrelated biological processes, is a question for a jury (see Bygrave v. New York City Hous. Auth., 65 A.D.3d 842, 847, 884 N.Y.S.2d 724 1st Dept.2009; Robinson v. Bartlett, 95 A.D.3d 1531, 1535, 944 N.Y.S.2d 777 3d Dept.2012 ).
TOM, J.P., SWEENY, GISCHE, KAPNICK, JJ., concur.