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

Case: Mendoza v. Mortlen Realty Corp.

Date: Oct. 25, 2011

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

Comment: A nicely aggressive summary judgment motion by plaintiffs' lawyers in this child lead-poisoning case. They won on the issue of liability, showing that the landlord/defendant knew there was a child in the apartment under age 6, and that the building was bound by New York City's lead paint hazard reduction law. This leaves for trial only the issue of damages -- or how much is the child entitled to be awarded for being lead-poisoned.


Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered January 22, 2010, which to the extent appealed from, granted plaintiffs' motion for partial summary judgment as against defendant Mortlen Realty Corp., unanimously affirmed, without costs.

In this action alleging injury to the infant plaintiff caused by lead‑paint poisoning, plaintiffs met their initial burden of establishing entitlement to summary judgment on the issue of liability based on evidence that defendant Mortlen Realty had actual and/or constructive notice that at least one child under the age of six was residing in the subject apartment in August 2006. They also established that the building is a multiple dwelling subject to the Lead Paint Hazard Reduction Law (Administrative Code of City of N.Y. former Sec. 27-2013[h], now Secs. 27-2056.3, 27-2056.18 [requiring the owner of a multiple dwelling to remove or cover paint containing specified hazardous levels of lead in any apartment in which a child six years of age or younger resides]).

The evidence submitted by defendants in opposition to the motion was insufficient to raise a factual issue to defeat summary judgment. Although defendants contend that the court improperly considered documents submitted by plaintiffs to rebut the argument that the building is not a multiple dwelling because they were unauthenticated and/or uncertified, defendants failed to preserve this issue for appellate review (see DiLeo v. Blumberg, 250 A.D.2d 364, 366, 672 N.Y.S.2d 319 [1998]). Were we to review this issue, we would find that the motion court properly considered the certificate of occupancy as well as printouts from the website of the New York City Department of Housing Preservation and Development which established that the building had been classified as a multiple dwelling (see CPLR 4511(b); Elkaim v. Elkaim, 176 A.D.2d 116, 574 N.Y.S.2d 2 [1991], appeal dismissed 78 N.Y.2d 1072, 576 N.Y.S.2d 222, 582 N.E.2d 605 [1991]).