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

1358
CA 13-00923
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


QUINN HEYWARD, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRUCE SHANNE AND VALERIE SHANNE,
DEFENDANTS-RESPONDENTS.


ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (DANIEL J. PAUTZ OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an amended order of the Supreme Court, Oneida County
(Samuel D. Hester, J.), entered April 15, 2013 in a personal injury
action. The amended order, inter alia, denied that part of the motion
of plaintiff for partial summary judgment.

     It is hereby ORDERED that said appeal from the amended order
insofar as it denied that part of the motion to preclude defendants
from presenting evidence of factors other than lead poisoning that may
have contributed to plaintiff’s injuries is dismissed and the amended
order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained as the result of his exposure to lead
paint in an apartment rented by his mother from defendants when he was
a child. Plaintiff moved for partial summary judgment “on the issues
of notice, negligence and substantial factor,” and for an order, inter
alia, taking judicial notice of certain statutes and regulations
regarding lead based paint; “precluding defendants’ attorneys and
hired experts from claiming socioeconomic, genetic, eugenic or
euthenics alternative and/or negating cause[s]”; and dismissing
defendants’ affirmative defenses, with the exception of the
affirmative defense seeking a collateral source offset under CPLR
4545. Supreme Court denied the motion except with respect to that
part of the first affirmative defense asserting lack of actual notice
as a result of the issuance of violations by health authorities, and
plaintiff appeals.

     We note at the outset that the appeal from the order insofar as
it denied that part of the motion seeking to “preclud[e] defendants’
attorneys and hired experts from claiming socioeconomic, genetic,
eugenic or euthenics alternative and/or negating cause[s]” must be
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                                                         CA 13-00923

dismissed. “ ‘[A]n evidentiary ruling, even when made in advance of
trial on motion papers constitutes, at best, an advisory opinion which
is neither appealable as of right nor by permission’ ” (Pagan v
Rafter, 107 AD3d 1505, 1507).

     Plaintiff further contends that the court erred in denying that
part of his motion seeking partial summary judgment “on the issues of
notice, negligence, and substantial factor.” We reject that
contention. “It is well settled that in order for a landlord to be
held liable for injuries resulting from a defective condition upon the
premises, the plaintiff must establish that the landlord had actual or
constructive notice of the condition for such a period of time that,
in the exercise of reasonable care, it should have been corrected”
(Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646; see Stokely v Wright,
111 AD3d 1382, 1382). Under the circumstances of this case, we
conclude that there is an issue of fact whether defendants had notice
of the dangerous lead paint condition in the subject apartment “for
such a period of time that, in the exercise of reasonable care, it
should have been corrected” (Juarez, 88 NY2d at 646; see Derr v
Fleming, 106 AD3d 1240, 1242; Woods v Alvarez, 300 AD2d 301, 302;
Perez v Ward, 271 AD2d 590, 591). With respect to constructive
notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d
9, 15) wrote that constructive notice of a hazardous, lead-based paint
condition may be established by proof “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.”
Here, we conclude that there is an issue of fact with respect to the
third Chapman factor, i.e., whether defendants were aware that paint
was peeling on the premises (see generally id.; Watson v Priore, 104
AD3d 1304, 1305-1306, lv dismissed in part and denied in part 21 NY3d
1052). We also conclude that the court properly determined that there
is an issue of fact as to causation (see Robinson v Bartlett, 95 AD3d
1531, 1534-1535; Cunningham v Anderson, 85 AD3d 1370, 1374-1375, lv
dismissed in part and denied in part 17 NY3d 948).

     To the extent that plaintiff challenges the amended order insofar
as it denied without prejudice that part of the motion with respect to
judicial notice (see generally Ciesinski v Town of Aurora, 202 AD2d
984, 984), we conclude that the court properly denied that part of the
motion inasmuch as the statutes and regulations in question are
inapplicable at this juncture of the litigation (see Stover v
Robilotto, 277 AD2d 801, 802, affd 97 NY2d 9; Hamilton v Miller, 106
AD3d 1476, 1477-1478; Sykes v Roth, 101 AD3d 1673, 1674; Skerritt v
Bach, 23 AD3d 1080, 1081). We also conclude that the court properly
denied those parts of the motion with respect to the affirmative
defenses other than that part of the first affirmative defense
concerning actual notice, as previously noted herein. The court
properly concluded that defendants are entitled to assert that
plaintiff’s mother “affirmatively created or exacerbated the lead
paint conditions” at the apartment or elsewhere, such as at
plaintiff’s “secondary address” with his grandmother at the Howard
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                                                          CA 13-00923

Avenue residence (M.F. v Delaney, 37 AD3d 1103, 1105), although she
was not liable for alleged negligent parental supervision (see id.;
see generally LaTorre v Genesee Mgt., 90 NY2d 576, 579). The court
further properly determined that defendants are entitled to assert
that “[p]laintiff’s conduct when he was a preteen and teenager . . .
may have constituted a failure to mitigate damages at a time when
plaintiff could be held legally responsible for his actions”
(Cunningham, 85 AD3d at 1372), although the affirmative defenses
alleging plaintiff’s culpable conduct, failure to mitigate damages and
assumption of risk will not apply prior to the time when he could be
held responsible for his actions (see id.; see also Watson, 104 AD3d
at 1306; Sykes, 101 AD3d at 1674). Likewise, we conclude that the
court properly determined that defendants may present evidence at
trial with respect to the affirmative defenses based on CPLR article
16 and alleging that plaintiff was exposed to lead paint at a location
other than the apartment rented from defendants by plaintiff’s mother,
and that any injury plaintiff suffered as a result of exposure at that
apartment is distinct from injury plaintiff suffered as a result of
exposure to lead paint elsewhere (see generally Cunningham, 85 AD3d at
1372).

     SMITH, J.P., LINDLEY, SCONIERS, and WHALEN, JJ., concur; FAHEY, J.,
concurs in the following Memorandum: I respectfully concur in the
result reached by the majority, namely, the dismissal of the appeal
from the amended order insofar as it denied that part of the motion to
preclude defendants from presenting evidence of factors other than
lead poisoning that may have contributed to plaintiff’s injuries and
the affirmance of the amended order. I write separately, however, to
address the dismissal of part of the appeal. I agree with the
majority that “ ‘an evidentiary ruling, even when made in advance of
trial on motion papers constitutes, at best, an advisory opinion which
is neither appealable as of right nor by permission’ ” (Pagan v
Rafter, 107 AD3d 1505, 1507), and that the appeal from the amended
order insofar as it denied that part of the motion seeking to
“preclud[e] defendants’ attorneys and hired experts from claiming
socioeconomic, genetic, eugenic or euthenics alternative and/or
negating cause[s]” must be dismissed. I also note, however, that I am
troubled by the concept that an individual’s family history may be
relevant to establishing a baseline for the purpose of measuring
cognitive disability or delay. I acknowledge that an explanation for
cognitive problems may arise from one’s personal history, but as a
conceptual and general matter I cannot agree with the principle of the
eugenics defense that defendants propose here. To my mind, the family
of a plaintiff in a lead paint case does not put its medical history
and conditions at issue, and the attempt to establish biological
characteristics as a defense to diminished intelligence, i.e., a
eugenics argument, cannot be countenanced and is something I
categorically reject.



Entered:   February 7, 2014                      Frances E. Cafarell
                                                 Clerk of the Court
