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

41
CA 16-01215
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


TIMOTHY TAGGART, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARGARET FANDEL AND JOHN FANDEL,
DEFENDANTS-APPELLANTS.


BURGIO, KITA, CURVIN & BANKER, BUFFALO (STEVEN P. CURVIN OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

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


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered March 21, 2016. The order, insofar as appealed
from, denied in part the motion of defendants for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
in its entirety and the complaint is dismissed.

     Memorandum: In this action to recover damages for personal
injuries allegedly arising from exposure to lead paint, defendants
appeal from an order that, inter alia, granted in part their motion
for summary judgment by dismissing certain claims, but denied the
motion with respect to three claims, i.e., the premises liability
claim arising from allegations that defendants had actual or
constructive notice of deteriorating lead paint on the premises, the
claim for failure to warn of a hazardous condition, and the claim for
failure to inspect the premises to discover deteriorating lead paint.
We agree with defendants that Supreme Court erred in denying those
parts of the motion, and we therefore reverse the order insofar as
appealed from and grant the motion in its entirety.

     The law is well settled. With respect to the premises liability
claim, “[i]n 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 constructive 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
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                                                         CA 16-01215

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, 97 NY2d at 15). Therefore, insofar as relevant
here, in order “to meet their burden on their motion[] for summary
judgment with respect to the premises liability [claim], defendants
were required to establish that they ‘had no actual or constructive
notice of the hazardous lead paint condition prior to an inspection
conducted by the [Monroe] County Department of Health [MCDH]’ ”
(Kimball v Normandeau, 132 AD3d 1340, 1341; see Stokely v Wright, 111
AD3d 1382, 1382)

     We agree with defendants that they met their initial burden of
establishing that they did not have actual or constructive notice of a
hazardous lead paint condition on the premises prior to an inspection
conducted by the MCDH (see Spain, 115 AD3d at 1369; Stokely, 111 AD3d
at 1382-1383; cf. Watson v Priore, 104 AD3d 1304, 1305-1306, lv
dismissed in part and denied in part 21 NY3d 1052). Defendants
submitted affidavits and deposition testimony establishing that they
were not aware of any peeling or chipping paint on the premises prior
to the inspection conducted by the MCDH. Defendants also established
that neither plaintiff nor the relatives with whom plaintiff resided
at the premises ever complained to either defendant of any peeling or
chipping paint on the premises. Contrary to plaintiff’s contention,
he failed to raise an issue of fact whether defendants were aware of
chipping and peeling paint on the premises (see Kimball, 132 AD3d at
1341; cf. Davis v Brzostowski, 133 AD3d 1371, 1372), or whether
defendants retained the requisite right of entry to the apartment to
sustain a claim for constructive notice (see Sanders v Patrick, 94
AD3d 1514, 1515, lv denied 19 NY3d 814). Furthermore, “[w]ithout
evidence legally sufficient to permit a jury to rationally infer that
the defendant had constructive notice of a dangerous condition, the
defendant cannot be held liable for failure to warn or to remedy the
defect” (Maguire v Southland Corp., 245 AD2d 347, 348; see generally
Ramos v Baker, 91 AD3d 930, 932). Consequently, absent evidence
raising a triable issue of fact whether defendants had actual or
constructive notice of a dangerous condition on the premises, the
court erred in denying that part of the motion seeking dismissal of
the failure to warn claim.

     Contrary to plaintiff’s further contention, Real Property Law
§ 235-b does not raise a presumption that defendants had notice of the
dangerous condition. “That section provides that, when entering into
a lease agreement, the landlord warrants that the premises are
habitable; it does not constitute ‘controlling legislation’ warranting
a determination that defendant had notice of the dangerous condition”
(Sykes v Roth, 101 AD3d 1673, 1674; quoting Chapman, 97 NY2d at 15).

     We also agree with defendants that the claim alleging failure to
inspect the apartment for lead paint must be dismissed. “The Court of
Appeals in Chapman (97 NY2d at 21) expressly decline[d] to impose a
new duty on landlords to test for the existence of lead in leased
properties based solely upon the general knowledge of the dangers of
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                                                         CA 16-01215

lead-based paints in older homes” (Sanders, 94 AD3d at 1516 [internal
quotation marks omitted]), and plaintiff here has proposed no other
viable basis for the imposition of such a duty.




Entered:   March 24, 2017                      Frances E. Cafarell
                                               Clerk of the Court
