HB Litigation Conferences Lead Litigation 2013

1. November 14-15, 2013

3. Judge Joseph Murphy (ret)
Silverman Thompson Slutkin White LLC
Brian S. Brown
Saul E. Kerpelman& Associates P.A.
Steven Rice
Harris Beach PLLC

4. November 14, 2013
Presented to HB Lead Litigation Conference
Steven J. Rice
Partner
Harris Beach PLLC
100 Wall Street
New York, NY 10005

5. LIABILITY
NEW YORK CITY

6. 


Court of Appeals – July 2, 1996
88 N.Y.2d 628; 672 NE 2d 135; 649 N.Y.S.2d
115
Interpreted NYC Administrative Code §
173.13 and Local Law 1 of 1982
Therefore – Applied Retroactively

7. 
Liability of Landlord - if 1. Actual or Constructive Notice of Hazardous Lead
Condition (Constructive Notice established By
Right of Entry for Inspection and Repair).
2. Notice by Landlord of Presence of a Child
under Age 7 prior to date of Order to Abate.

8. NEW YORK CITY
LOCAL LAW 1 OF 2004

9. 


Local Law 1 of 2004 is also known as the
Childhood Lead Prevention Act of 2003.
Local Law 1 of 2004 replaces Local Law 38 of
1999 and Local Law 1 of 1982.
Local Law 1 of 2004 became effective August
2, 2004.

10. 
Prevention v. Abatement.

Proper v. Improper Abatement.

11. 



Remediate Lead Hazards.
Notify and Investigate.
Use Safe Work Practices.
Make Apartments Lead Safe on Turnover.

12. 
Lead Hazards include any condition that
cause exposure to lead contaminated dust
from:
◦
◦
◦
◦
◦
Peeling lead based paint.
Deteriorated sub-surfaces.
Friction Surfaces.
Impact Surfaces.
Chewable Services.

13. 

Presumption “All-pre-1060 buildings contain
lead paint”.
Owners must prevent the reasonably
foreseeable occurrence of lead hazards and
remediate them, and the underlying defects
that may cause lead hazards, using safe work
practices.

14. 
Notice
◦ Must send notice between January 1st and January
16th inquiring as to the presence of children age 7
and under.
◦ Tenant must respond by February 15th .
◦ If tenant does not respond, owner has duty to
investigate presence of child between February 16th
and March 1st.
◦ If child is present, owner must determine whether
any lead hazards exist and advise the tenant of the
hazards of lead paint and the results of their
investigation.

15. WHERE OWNER FAILS TO INSPECT
AS REQUIRED – CONSTRUCTIVE
NOTICE OF LEAD PAINT IS
ESTABLISHED.

16. 

Must investigate presence of lead hazards in
all pre-1960 and post-1960 to pre-1978
buildings where children under the age of 7
reside and the owner knows lead hazards
exist.
Investigation must be conducted annually,
or more often if:
◦ Owner is aware of a condition that may cause lead
hazard.
◦ Tenant complains about such a condition [owner
must inspect within 10 days].

17. 
At lease end or renewal:
◦ Must again inquire into whether a child under the
age of 7 will reside in the apartment.
◦ Lease must specify owner’s responsibilities.
◦ Landlord must provide copy of lead paint brochure.

18. 
Owner must correct lead hazards:
◦
◦
◦
◦
Must
Must
Must
Must
use workers trained in lead hazards.
use third party for clearance dust test.
provide clearance dust test results to tenant.
correct any violations within 21 days.
Safe work practices and instruction are outlined
at: www.nmic.org/nyccelp/govt.htm

19. 
Affidavit by Owner asserting:
1. Dust wipe testing is negative for lead.
2. Substantial renovation of property prior to
violation.
SPECIFIC PROOF MUST BE INCLUDED

20. 

Section 173.13 Prohibitions and Abatement
Orders
Section 173.14 Standards for Abatement and
Renovation

21. MULTIPLE DWELLING LAW § 78
Non-delegable Duty by Landlord to Repair
Applies to Cities with Greater
than 325,000 Population.
MULTIPLE RESIDENCE LAW § 174
Applies to Populations Below 325,000

22. NEW YORK STATE
OUTSIDE OF NYC
AND
NON-MULTIPLE DWELLINGS

23. CHAPMAN v. SILBER
STOVER v. ROBILOTTO
97 N.Y.2d 9
760 N.E. 2d 329
734 N.Y.S.2d 541
NY Court of Appeals
November 15, 2001
NY Statewide Liability Standard
and for Non-Multiple Dwellings

24. 1.
2.
3.
4.
5.
Landlord Retained Right of Re-entry to
Leased
Premises and Assumed Duty to Repair.
Knew Apartment was constructed before
Lead Paint Ban.
Aware of Peeling Paint.
Knew Hazards of Lead Exposure to Young
Children.
Knew That a Young Child Lived at Premises.

25. CAUSATION
OR
THE SEARCH FOR
ALTERNATIVE CAUSATION

26. MUST BE DEEMED
AUTHORITATIVE AND RELIED
UPON BY MEDICAL EXPERTS

27. STUDIES “CONTROL FOR”
CONFOUNDERS.
WHAT DOES THIS MEAN?
EFFECT ON RELIABILITY OF STUDIES.

28. 1.
2.
3.
4.
Pediatrician
Pediatric Neurologist
Neuropsychologist
Hematologist / Toxicologist

29. 1.
2.
Unsettled as to whether Neuropsychologist
PhD can testify to causation.
Discretionary with the Court on a case by
case basis.

30. 
Sibling and Parent Records

Social Services Records

31. 1.
2.
Appellate Division 1st Dept.
June 28, 1993
189 A.D.2d 738; 592 N.Y.S.2d 734
Privilege as to sibling medical records could
notbe waived.
Guardian by bringing derivative suit did not
place mental or physical condition in
controversy.

32. Court of Appeals
May 11, 2000
94 N.Y.2d 740; 731 N.E.2d 589; 709 N.Y.S.2d
873
1. Discovery Determinations are Discretionary.
2. Case by Case Evaluation.
3. Balance Competing Interests.
4. Need for Comprehensive/Specific Expert
Affidavit to Support Need.

33. 
Appellate Division, Third Department
October 21, 2010
77 A.D.3d 1162; 909 N.Y.S.2d 571
Court must distinguish between Privileged
and Non-Privileged Records Maintained by
Department of Social Services.

34. Distinguish Between
 Social Services Law § 422 and 372
 § 422 Prohibits Disclosure except to
those persons and groups enumerated
in the Statute.

35. 

Information gathered under § 372 may be
disclosed and is not confidential simply
because it is kept or produced by Child
Protective Services.
Rehabilitative and Preventive Services, as well
as the names and addresses of Foster Parents
may be disclosed.

36. Steven J. Rice
Harris Beach PLLC
100 Wall Street
New York, New York 10005
Tel. 212-313-5453
Fax. 212-687-0659
srice@harrisbeach.com

38. 











Honorable Joseph Murphy (Ret.)
Silverman Thompson Slutkin White LLC
410.385.2225
josephmurphy@mdattorney.com
Brian Brown
Saul E. Kerpelman& Associates, P.A
410.547.0202
brian@kerpelman.com
Steven Rice
Harris Beach PLLC
212.313.5453
srice@harrisbeach.com