APARTMENT BUILDING MANAGING COMPANIES DENIED SUMMARY JUDGMENT IN INFANT (CHILD) LEAD-POISONING CASE: WORK MAY HAVE CAUSED OR WORSENED LEAD CONDITION

Court: Supreme Court, Appellate Division, First Department, New York

Case: Carlucci v. the City of New York

Date: Nov. 10, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

Comment: Defendants managed New York City Housing and are sued for lead poisoning of a child. Evidence shows that they removed insulation and scraped pipes in the child's apartment, and may have created or worsened the exposed lead, for the child to ingest (eat) or breathe. Thus, the managing companies' summary judgment motion is denied, as there exist questions of fact as to their culpability (responsibility) for the child's lead-caused injury.

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INFANT (CHILD) LEAD POISONING VICTIM GRANTED SUMMARY JUDGMENT AGAINST LANDLORD ON THE ISSUE OF LIABILITY (Posted by Queens accident lawyer Gary E. Rosenberg on Dec 10, 2011)

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 23, 2010, which, to the extent appealed from as limited by the briefs, denied defendants Star Housing and York Management's motion for summary judgment dismissing the complaint as against them, and granted plaintiffs' application to compel the deposition of Linda Gibbs, former Commissioner of the New York City Department of Homeless Services, unanimously modified, on the law and the facts, to deny plaintiffs' application, and otherwise affirmed, without costs.

The infant plaintiff allegedly sustained injuries as a result of exposure to lead while residing in a privately owned apartment in which he and his mother had been placed by the New York City Department of Homeless Services (NYCDHS). Defendants Star Housing and York Management contend that since they neither owned nor were in exclusive control of the apartment building, they are not liable for the infant plaintiff's injuries. However, the record evidence presents issues of fact whether Star and York, as managing agents of the portion of the building used by NYCDHS, created or contributed to the creation of the lead hazard by causing their agents to remove insulation and scrape lead paint off pipes in the apartment (see German v. Bronx United in Leveraging Dollars, 258 A.D.2d 251, 684 N.Y.S.2d 541 [1999]). This evidence includes correspondence between NYCDHS and York concerning repairs required in the apartment and performed by York and testimony that Star ran the homeless program, that Star caseworkers maintained an office on site to assist clients who needed repairs in their units, and that a construction company owned by a Star employee actually performed the repairs on the pipes.

Plaintiffs failed to show that information provided by former Commissioner Gibbs about the alleged policy disagreement within NYCDHS would be material and necessary to their prosecution of this action, which alleges negligent inspection and repair of the subject apartment, or that material and necessary information could not be obtained through document production and the deposition of other city officials (see Colicchio v. City of New York, 181 A.D.2d 528, 581 N.Y.S.2d 36 [1992]).

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