Lead poisoning claim goes to trial

1727-29 Walton Avenue. Image Credit: Google Maps.

Parent of two and one-half-year-old child found with elevated lead levels sued landlord. On September 13, 2004, a two and one-half-year-old child was diagnosed with lead poisoning after a test revealed his blood lead level to be four times greater than the City’s guideline.  The Department of Health and Mental Hygiene tested the child’s apartment located at 1727-29 Walton Avenue in the Bronx and discovered 47 positive findings of lead paint and 29 readings which showed the apartment’s paint in poor condition.  The child had been living in the hazardous apartment with his adoptive mother since he was two weeks old.

The child’s mother sued the apartment owner.  The mother claimed that she repeatedly asked the owner to address the paint hazard and submitted evidence of lead-based paint violations in over a dozen apartments in the building.  In support of the mother, the building superintendent and the child’s foster care worker provided affidavits testifying that the apartment was in poor condition and that the owner had refused to repaint the apartment for economic reasons.

The owner argued that it was unaware of the apartment’s poor condition and that it had responded reasonably to the hazard when notified.  The owner also provided a medical expert who opined that the child’s permanent brain damage was not caused by lead exposure, but by his biological mother’s use of cocaine and Xanax during pregnancy.

Supreme Court Justice Paul L. Alpert denied the mother’s motion for partial summary judgment.  The court ruled that although the owner was on notice of the hazardous condition, the owner raised an issue of fact as to whether it had taken reasonable measures to address the hazard.

The Appellate Division, First Department, reversed the lower court’s ruling but refused to grant the mother summary judgment.  The court ruled that the owner had failed to make reasonable efforts to address the hazardous condition because they presumably knew of the deteriorating paint condition since March 2002 yet did nothing until after the child was poisoned.  Notwithstanding, the court denied the mother summary judgment, holding that an issue of fact existed as to whether the lead exposure was the true cause of the child’s injuries, and not the biological mother’s drug use during pregnancy.

S.T. v. 1727‒29 LLC, 127 N.Y.S.3d 16 (1st Dep’t 2020).

By: Scott Y. Matsuda (Scott is a New York Law School student, Class of 2022.)


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