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

305
CA 14-01590
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.


LEONA JOHNSON, FORMERLY KNOWN AS LEONA BERL,
AS PARENT AND NATURAL GUARDIAN OF ANTHONY
JONES, AN INFANT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL GILES, DEFENDANT-RESPONDENT.


LIPSITZ & PONTERIO, LLC, BUFFALO (ZACHARY JAMES WOODS OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (ROBERT M. SHADDOCK OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered November 22, 2013. The order, insofar as appealed
from, granted in part the motion of defendant for summary judgment by
dismissing all claims for the period from October 1, 1995 through July
29, 1996.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries allegedly sustained by her infant child as a result of the
child’s exposure to hazardous lead paint conditions at a property
owned by defendant. Defendant moved for summary judgment dismissing
the complaint, and Supreme Court granted the motion in part by
dismissing plaintiff’s claims for the period from October 1, 1995, the
date of plaintiff’s first occupancy, through July 29, 1996, the date
of a municipal inspection of the premises. We affirm.

     “In order for a landlord to be held liable for a lead paint
condition, it must be established that the landlord had actual or
constructive notice of the hazardous condition and a reasonable
opportunity to remedy it, but failed to do so” (Spain v Holl, 115 AD3d
1368, 1369; see generally Chapman v Silber, 97 NY2d 9, 19-20). A
plaintiff can establish that the landlord had notice of a hazardous
lead paint condition by showing 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”
                                 -2-                           305
                                                         CA 14-01590

(Chapman, 97 NY2d at 15).

     Here, we conclude that defendant met his initial burden of
establishing that he did not have actual or constructive notice of a
hazardous lead paint condition on the premises prior to an inspection
conducted by the Monroe County Department of Health (MCDH) on July 29,
1996 (see Spain, 115 AD3d at 1369; Stokely v Wright, 111 AD3d 1382,
1382-1383; cf. Watson v Priore, 104 AD3d 1304, 1305-1306, lv dismissed
in part and denied in part 21 NY3d 1052). Defendant testified during
a deposition that he was not aware of any peeling or chipping paint on
the premises prior to the inspection conducted by the MCDH, and that
plaintiff never complained to him of any peeling or chipping paint.
Plaintiff likewise testified that she did not recall any peeling or
chipping paint on the premises.

     We further conclude that plaintiff failed to raise a triable
issue of fact in opposition (see Spain, 115 AD3d at 1369; see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff
did not challenge defendant’s position that he did not have actual
notice, but she contended that defendant should be charged with
constructive notice because there was peeling or chipping paint in
common areas. Although a landlord “is generally chargeable with
notice of [a] dangerous condition[] which a reasonable inspection
would have discovered” (Wynn v T.R.I.P. Redevelopment Assoc., 296 AD2d
176, 181), plaintiff failed to present any evidence that the peeling
or chipping paint here was “ ‘visible and apparent [or that] it . . .
exist[ed] for a sufficient length of time’ ” to allow defendant to
remedy it (id. at 182, quoting Gordon v American Museum of Natural
History, 67 NY2d 836, 837). We reject plaintiff’s contention that
defendant should have been aware of the peeling or chipping paint
based upon prior repairs that he had been required to make by the City
of Rochester Department of Community Development (City) in another
apartment in the building. The documents issued by the City
concerning those repairs are vague and give no indication whether the
repairs were to address the presence of lead paint in the apartment
(cf. Rodriguez v Amigo, 244 AD2d 323, 324-325).

     Plaintiff’s further contention that defendant should have been
aware of the peeling or chipping paint based upon his visits to the
house is not properly before us inasmuch as it was raised for the
first time on appeal (see generally Ciesinski v Town of Aurora, 202
AD2d 984, 985).




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
