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

877
CA 12-02384
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


JEROME BURGESS, II AND JUSTIN RELIFORD,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MALCOLM MEYER AND PETER MONACELLI,
DEFENDANTS-RESPONDENTS.


ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

FELDMAN KIEFFER, LLP, BUFFALO (ALAN J. BEDENKO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered October 23, 2012. The order, inter alia,
denied those parts of the cross motion of plaintiffs for partial
summary judgment on the issue of liability, for an order taking
judicial notice of certain statutes and regulations and for dismissal
of certain affirmative defenses asserted by defendants.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting plaintiffs’ cross motion
in part and dismissing the 3rd, 15th, 17th, and 29th affirmative
defenses, dismissing the 13th affirmative defense insofar as it
alleges that plaintiffs failed to mitigate their damages prior to the
time that they could be held responsible for their actions, and
conforming the order to the decision by providing that the 27th
affirmative defense is withdrawn, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries they allegedly sustained as a result of their exposure to
lead paint as children while living in premises owned by defendants.
We reject plaintiffs’ contention that Supreme Court erred in denying
that part of their cross motion seeking an order taking judicial
notice of 42 USC § 4851, Public Health Law § 1370 et seq., Real
Property Law § 235-b, 10 NYCRR part 67, and the New York State
Department of Health guidelines for the removal of lead paint hazards.
Contrary to plaintiffs’ contention, those statutes, regulations, and
guidelines do not establish as a matter of law that defendants had
notice of a dangerous condition or that defendants are liable.
Rather, the factors set forth in Chapman v Silber (97 NY2d 9, 20-21)
“remain the bases for determining whether . . . [defendants] knew or
                                 -2-                           877
                                                         CA 12-02384

should have known of the existence of a hazardous lead paint condition
and thus may be held liable in a lead paint case” (Watson v Priore,
104 AD3d 1304, 1305; see Pagan v Rafter, 107 AD3d 1505, 1507). We
reject plaintiffs’ further contention that the court erred in denying
that part of their cross motion seeking partial summary judgment on
the issue of liability. Plaintiffs’ own submissions raised an issue
of fact whether defendants had notice of a hazardous lead paint
condition, and plaintiffs thus failed to establish as a matter of law
that defendants are liable (see Chapman, 97 NY2d at 15; see generally
Zuckerman v City of New York, 49 NY2d 557, 562).

      We conclude, however, that the court erred in denying that part
of plaintiffs’ cross motion seeking to dismiss defendants’ 3rd and 29th
affirmative defenses, which allege, inter alia, culpable conduct on
the part of plaintiffs’ parents, because those defenses sound in
negligent parental supervision (see Sykes v Roth, 101 AD3d 1673, 1674;
M.F. v Delaney, 37 AD3d 1103, 1105; Christopher M. v Pyle, 34 AD3d
1286, 1287). Insofar as defendants’ 29th affirmative defense also
alleges plaintiffs’ ratification of, consent to, or acquiescence in
defendants’ alleged acts or omissions, that defense should have been
dismissed because plaintiffs were non sui juris as a matter of law
(see Van Wert v Randall, 100 AD3d 1079, 1081; M.F., 37 AD3d at 1104-
1105). We further conclude that the court should have dismissed the
13th affirmative defense insofar as it “allege[s] that plaintiff[s]
failed to mitigate [their] damages prior to the time that [they] could
be held responsible for [their] actions” (Watson, 104 AD3d at 1306;
see Sykes, 101 AD3d at 1674; Cunningham v Anderson, 85 AD3d 1370,
1372, lv dismissed in part and denied in part 17 NY3d 948). The court
also should have dismissed the 15th and 17th affirmative defenses,
which alleged, inter alia, that plaintiffs’ parents created or
exacerbated the hazardous lead paint condition, because those defenses
have no merit inasmuch as there is no factual support for them in the
record (see CPLR 3211 [b]; cf. Connelly v Warner, 248 AD2d 941, 943).
We therefore modify the order accordingly. We reject plaintiffs’
contentions with respect to the remaining affirmative defenses.

     Finally, we note that, although defendants voluntarily withdrew
their 27th affirmative defense, the court in its order denied that
part of plaintiffs’ cross motion seeking to dismiss that defense. The
court’s written decision, however, properly reflects that defendants
had withdrawn that defense voluntarily. “Where, as here, there is a
conflict between an order and a decision, the decision controls”
(Wilson v Colosimo, 101 AD3d 1765, 1766 [internal quotation marks
omitted]). We therefore further modify the order accordingly.




Entered:   November 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
