Opinion
02-06-2015
Takisha MOYE, Plaintiff–Appellant, v. Joel A. GIAMBRA and Michelle M. Giambra, Defendants–Respondents.
Athari & Associates, LLC, New Hartford (MO Athari of Counsel), for Plaintiff–Appellant. Hiscock & Barclay, LLP, Buffalo (Ryan C. Mahoney of Counsel), for Defendants–Respondents.
Athari & Associates, LLC, New Hartford (MO Athari of Counsel), for Plaintiff–Appellant.
Hiscock & Barclay, LLP, Buffalo (Ryan C. Mahoney of Counsel), for Defendants–Respondents.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and DeJOSEPH, JJ.
Opinion MEMORANDUM:Plaintiff commenced this action seeking damages for injuries she allegedly sustained as a result of her exposure to lead paint as a child in an apartment in which she resided. The complaint alleges two causes of action against defendants, the landlords of the subject property, i.e., negligent ownership and maintenance of the premises, and negligent abatement of the lead paint hazards. Plaintiff moved for, inter alia, partial summary judgment on the “issues of liability (notice, negligence and substantial factor),” and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court properly granted the cross motion. “In order for a landlord to be held liable for a lead paint condition, it must be established that the landlord had actual or constructive notice of the hazardous condition and a reasonable opportunity to remedy it, but failed to do so” (Spain v. Holl, 115 A.D.3d 1368, 1369, 983 N.Y.S.2d 192 ; see Pagan v. Rafter, 107 A.D.3d 1505, 1506, 969 N.Y.S.2d 265 ; see generally Juarez v. Wavecrest Mgt. Team, 88 N.Y.2d 628, 646, 649 N.Y.S.2d 115, 672 N.E.2d 135 ). We agree with defendants that they met their burden on the cross motion with respect to the cause of action for negligent ownership and maintenance of the premises by establishing that they did not have actual or constructive notice of the hazardous lead paint condition, and plaintiff failed to raise a triable issue of fact (see Spain, 115 A.D.3d at 1369, 983 N.Y.S.2d 192 ; see generally Chapman v. Silber, 97 N.Y.2d 9, 15, 734 N.Y.S.2d 541, 760 N.E.2d 329 ). We further agree with defendants that they met their burden with respect to the negligent abatement cause of action by establishing that they abated the lead paint hazard in a reasonable manner, and plaintiff failed to raise a triable issue of fact (cf. Pagan, 107 A.D.3d at 1506–1507, 969 N.Y.S.2d 265 ).
In view of our determination, we do not address plaintiff's remaining contentions.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.