Opinion
August 28, 2000.
Michael D. Hess, Corporation Counsel (Phoebe McCray of counsel), for City of New York, defendant.
Fitzgerald Fitzgerald, Yonkers, for plaintiffs.
The City moves for summary judgment; plaintiffs cross-move to amend the complaint to assert breach of a special duty.
Plaintiffs sue the City and their landlord for personal injuries allegedly incurred by Josefina Reyes's children, who ate lead paint chips in their apartment. Plaintiffs claim, inter alia, that the City was deficient in enforcing lead-poisoning statutes and regulations, including the federal Lead-based Paint Poisoning and Prevention Act ("LPPPA," 42 U.S.C. § 4822).
The City contends that it first became involved in 1996, when its Department of Health learned that Edgar had elevated blood lead levels. (See N.Y.C. Health Code § 173.13.) The Health Department inspected the apartment and directed the landlord to correct violations. The landlord apparently did not comply. The Health Department notified the City's Department of Housing Preservation and Development (HPD) which corrected the violations in December 1996.
Plaintiffs allege that the City became involved in July 1995, when HPD's Office of Code Enforcement inspected the apartment in connection with plaintiffs' Housing Court proceeding to compel the landlord to make repairs. HPD issued various "immediate hazard" violations, including peeling lead paint, but the landlord allegedly did nothing. Edwin's elevated lead level was first diagnosed in November 1995, and Edgar's was first diagnosed in December, 1995, several months after HPD issued the lead paint violations. HPD again inspected the apartment in January 1996 and issued more violations, also apparently unheeded. The City continued to send investigators, but it did not itself begin to correct the lead violations until September 1996. Abatement took approximately two months; plaintiffs remained in the apartment. Plaintiffs assert that City inspectors told Reyes not to worry and did not direct her to relocate. Reyes further asserts that City abatement workers did not properly dispose of lead dust, thereby increasing lead levels.
The original complaint contains eight causes of action: (i) violation of federal law [LPPPA]; (ii) failure to enforce local laws; (iii) violation of civil rights [ 42 U.S.C. § 1983]; (iv) negligence; (v) negligence per se; (vi) breach of contract and implied warranty of habitability; (vii) nuisance; and, (viii) infliction of mental distress. The amended complaint substitutes a new fifth cause of action asserting breach of special duty.
(i) Violation of Federal Law [LPPPA]
Applying the U.S. Supreme Court's test in Cort v. Ash ( 422 U.S. 66, 78), there is no private right of action under LPPPA (Santiago v. Muniz, 53 F. Supp.2d 264 [EDNY] see Cardona v. 642- 652 Willoughby Avenue Corp., 182 Misc.2d 223).
(ii) Failure to Enforce Local Laws
Plaintiffs can prevail in this claim only by proving that the City's "disregard of the command of a statute result[ed] in damage to one of the class members for whose especial benefit the statute was enacted" (New York City Coalition to End Lead Poisoning v. Koch, 138 Misc.2d 188, 197, affd 139 A.D.2d 404, citing Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139). However, the City's only statutory obligation is to enact regulations. Administrative Code § 27-2013[h], the law in effect when plaintiffs commenced this action, imposed on landlords the affirmative, non-delegable duty to ameliorate a lead-based paint condition, but did not impose a similar duty on the City or its agencies. The law which replaced it in 1999 (Admin Code § 27-2056.1, et seq.), is arguably less stringent (see NYC Coalition to End Lead Poisoning, Inc. v. Vallone, ___ Misc.2d ___,). Similarly, no private right of action derives from New York City Health Code § 173.13 (Lindsay v. New York City Housing Authority, n.o.r. 1999 WL 104599 [EDNY]; see Ubiera v. Housing Now Company, Inc., 184 Misc.2d 846).
(iii) Violation of Civil Rights [ 42 U.S.C. § 1983]
Applying the U.S. Supreme Court's three-pronged test in Blessing v. Freestone ( 520 U.S. 329, 340-341, to the lead paint situation, only plaintiffs in subsidized or public housing have a right of action under 42 U.S.C. § 1983 (see German v. Federal Home Loan Mortgage Corp., 1999 WL 1095595 [SDNY]; Roman v. Morace, 1997 WL 777844 [SDNY]. Plaintiffs in private housing cannot state such a claim (see, Santiago v. Muniz, 53 F. Supp.2d 264).
(iv) Negligence and (v) Negligence per se
Plaintiffs may state a negligence claim against the City only by showing breach of a special duty (Sorichetti v. City of New York, 65 N.Y.2d 461). The proposed amendment alleges a special duty claim; the original complaint does not.
Plaintiffs' notice of claim clearly states that the City owed plaintiffs a special duty and breached it. Any factual omissions from plaintiffs' bill of particulars may be remedied through service of an amended bill of particulars. Because the City has not yet interposed an answer to this claim (see CPLR 3212[a]; Kantor v. Bernstein, 225 A.D.2d 500, 502), the Court must deem all allegations pleaded to be true and accord plaintiff every favorable inference (344 E 72 Limited Partnership v. Dragatt, 188 A.D.2d 324).
Plaintiffs must show that the City undertook a duty owed specifically to them. Such 'special' duty goes beyond the municipality's obligations to the general public; it must be premised on a special relationship between the City and plaintiffs (Florence v. Goldberg, 44 N.Y.2d 189, 195; Lee v. New York City Transit Authority, 249 A.D.2d 93, lv app den in part and dism in part 92 N.Y.2d 944). A "special relationship' requires four elements: "(i) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (ii) knowledge on the part of the municipality's agents that inaction could lead to harm; (iii) some form of direct contact between the municipality's agents and the injured party; and (iv) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v. City of New York, 69 N.Y.2d 255, 260, mot amend dism 70 N.Y.2d 667). Recent case law emphasizes the last two elements. (Lauer v. City of New York, 95 N.Y.2d 95, 102).
Plaintiffs claim that the City exceeded its statutory duty by sending monitors to the apartment to inspect the paint and to advise about dealing with hazards, e.g., rinsing food. The monitors allegedly assured plaintiffs that everything would be fine, but did not warn them to vacate. Reyes asserts that she reasonably believed that the monitors were experts, and followed their advice. The City's acts, including the inspector's remarks, during the court-mandated and other inspections and follow-ups, are not actionable; they were part of the City's governmental regulatory function, to which immunity attaches. See Bargy v. Sienkiewicz, supra.
However, to the extent that plaintiffs allege that the City chose to undertake the lead abatement itself, and did so negligently during plaintiffs' occupancy, such allegations, when viewed in a light most favorable to the pleader, on a motion to amend or a pre-joinder CPLR § 3211(a)(7) motion, may suffice to show the assumption and breach of a special duty. See Valencia v. City of New York, 55 F. Supp.2d 122, 133, citing Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253; see also Bargy v. Sienkiewicz, supra; Toribio v. City of New York, 2000 WL 690252 at *3 [SDNY], On similar allegations, it was held that the claim's viability hinged on triable factual questions. (Valdez v. MGS Realty and Management Corporation, 2000 WL 511024 at *10-11 [SDNY]).
The City contends that Reyes's affidavit, the basis of the special duty claim, conflicts with her 50-h hearing and deposition. These discrepancies in sworn testimony do raise significant factual questions and credibility issues, but the court may not determine them summarily here.
(vi) Breach of Contract and Implied Warranty of Habitability
A landlord's duty to keep rental premises in good repair includes lead abatement as required bylaw. (Morales v. Felice Properties Corp., 221 A.D.2d 181). The City has no such contract-based obligation to anyone not its tenant. In performing inspection and enforcement, the City was performing a governmental, not a proprietary function. By effecting abatement, the City did not become vicariously liable for the landlord. It was carrying out its own statutory responsibilities, not stepping into the landlord's shoes.
(vii) Nuisance
Irrespective of the viability of a nuisance claim against a landlord (see Rosario v. Koss, 26 A.D.2d 561, 562; cf Wall St. Transcript Corp. v. 343 East 43rd St. Holding Corp., 81 A.D.2d 783), it is not viable against the City, which did not own, finance or provide plaintiffs with their apartment (see Valencia v. City of New York, supra).
(viii) Infliction of Mental Distress
The circumstances alleged do not amount to a deliberate and malicious campaign of harassment or intimidation. (Vasarhelyi v. The New School for Social Research, 230 A.D.2d 658.
Conclusion
Accordingly, plaintiffs' cross-motion to amend the complaint is granted. The City's motion for summary judgment is granted dismissing all claims originally pleaded against the City.
[Portions of opinion omitted for purposes of publication.]