        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

498
CA 14-01753
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


WILMONT WOOD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAVID GIORDANO, DEFENDANT-APPELLANT,
AND GERALD BREEN, III, DEFENDANT-RESPONDENT.


WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, WHITE PLAINS (JEREMY
BUCHALSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

ATHARI & ASSOCIATES, LLC, NEW HARTFORD (MO ATHARI OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), rendered December 6, 2013. The order, inter alia, denied
the motion of defendant David Giordano for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff’s mother commenced this action seeking
damages for injuries that plaintiff allegedly sustained as a result of
ingesting lead paint while living in, inter alia, an apartment owned
by David Giordano (defendant). Plaintiff was substituted as a party
upon attaining majority. Defendant thereafter moved for summary
judgment dismissing the complaint and cross claims against him, and
plaintiff cross-moved for partial summary judgment on liability
against both defendants. Supreme Court denied the motion and cross
motion, and defendant appeals.

     Initially, we note that defendant did not establish his
entitlement to summary judgment with respect to one of the two causes
of action against him, i.e., the cause of action for negligent
abatement of the lead-based paint hazard, inasmuch as he failed to
address that cause of action in support of his motion and, indeed, he
has not addressed it on appeal (see generally Ronan v Northrup, 245
AD2d 1119, 1119). Thus, the court properly denied defendant’s motion
with respect to that cause of action.

     We conclude that the court properly denied defendant’s motion
with respect to the remaining cause of action, for negligently
allowing a dangerous lead paint condition to exist on the premises.
In order “[t]o establish that a landlord is liable for a lead-paint
condition, a plaintiff must demonstrate that the landlord had actual
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                                                         CA 14-01753

or constructive notice of, and a reasonable opportunity to remedy, the
hazardous condition” (Rodriguez v Trakansook, 67 AD3d 768, 768-769;
see Hamilton v Picardo, 118 AD3d 1260, 1261, lv denied 24 NY3d 904).
Where, as here, there is no evidence that the landlord had actual
notice of the existence of a hazardous lead paint condition, plaintiff
may establish that defendant had constructive notice of such condition
by demonstrating that the landlord “(1) retained a right of entry to
the premises and assumed a duty to make repairs, (2) knew that the
apartment was constructed at a time before lead-based interior paint
was banned, (3) was aware that paint was peeling on the premises, (4)
knew of the hazards of lead-based paint to young children and (5) knew
that a young child lived in the apartment” (Chapman v Silber, 97 NY2d
9, 15). Defendant conceded that he was aware that a young child lived
in the subject premises, and we conclude that he failed to meet his
burden on the four remaining Chapman factors (see generally Alvarez v
Prospect Hosp., 68 NY2d 320, 324). Even assuming, arguendo, that
defendant met his initial burden with respect to those four factors,
we conclude that plaintiff raised issues of fact with respect to them
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
