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

293
CA 12-00977
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


JOHNNY WATSON, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

SALVATORE PRIORE, ET AL., DEFENDANTS,
LIVINGSTON WESTON, DEFENDANT-RESPONDENT-APPELLANT,
STEVEN A. ABDOO AND PETER M. BOLOS,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


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

BAILEY, KELLEHER & JOHNSON, P.C., ALBANY (MARC J. KAIM OF COUNSEL),
FOR DEFENDANT-RESPONDENT-APPELLANT.

CARL J. COCHI, UTICA, FOR DEFENDANTS-RESPONDENTS.


     Appeal and cross appeal from an order and judgment (one paper) of
the Supreme Court, Oneida County (Samuel D. Hester, J.), entered
November 2, 2011. The order and judgment, inter alia, granted the
motions of defendants Livingston Weston, Steven A. Abdoo and Peter M.
Bolos for summary judgment dismissing the complaint against them.

     It is hereby ORDERED that said cross appeal is unanimously
dismissed and the order and judgment is modified on the law by denying
the motion of defendant Livingston Weston and reinstating the
complaint against him and as modified the order and judgment is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages
arising from his exposure to lead paint as a child. Defendants are
former owners of various apartments rented by plaintiff’s mother, with
whom plaintiff lived at the time, and defendants Steven A. Abdoo and
Peter M. Bolos were joint owners of the same apartment. In appeal No.
1, plaintiff appeals from an order and judgment that, inter alia,
granted the motion of Abdoo and Bolos and that of defendant Livingston
Weston seeking summary judgment dismissing the complaint against them
and denied plaintiff’s cross motion seeking partial summary judgment
on the issue of negligence and dismissal of various affirmative
defenses, including those based on plaintiff’s alleged failure to
mitigate damages. Although Weston is not aggrieved by the order and
judgment in appeal No. 1, we note that he nevertheless cross-appeals
from that order and judgment insofar as it denied that part of his
                                 -2-                           293
                                                         CA 12-00977

motion seeking summary judgment on the issue of proximate cause. We
therefore dismiss Weston’s cross appeal in appeal No. 1 (see CPLR
5511).

     In appeal No. 2, plaintiff appeals from a judgment awarding,
inter alia, statutory costs to Abdoo and Bolos and, in appeal No. 3,
he appeals from a subsequent order denying his motion seeking, inter
alia, to vacate the order and judgment in appeal No. 1 with respect to
Abdoo and Bolos or leave to renew his opposition to their prior motion
for summary judgment dismissing the complaint against them and his
cross motion for partial summary judgment as against them.

     We initially conclude in appeal No. 1 that Supreme Court properly
denied plaintiff’s cross motion insofar as it sought partial summary
judgment on the issue of negligence. Contrary to plaintiff’s
contention, Real Property Law § 235-b does not give rise to a
presumption that defendants had notice of the alleged dangerous
condition in their properties arising from lead paint (see Sykes v
Roth, 101 AD3d 1673, 1674). The factors set forth in Chapman v Silber
(97 NY2d 9, 20-21) remain the bases for determining whether a landlord
knew or should have known of the existence of a hazardous lead paint
condition and thus may be held liable in a lead paint case.

     We further conclude in appeal No. 1 that the court properly
granted the motion of Abdoo and Bolos for summary judgment dismissing
the complaint against them. Those defendants met their initial burden
on the motion by submitting evidence that they did not have actual or
constructive notice of the lead paint hazard on their property, and in
response plaintiff failed to raise a triable issue of fact (see
Sanders v Patrick, 94 AD3d 1514, 1515, lv denied 19 NY3d 814; cf.
Jackson v Brown, 26 AD3d 804, 805). We agree with plaintiff, however,
that the court erred in granting the motion of Weston for summary
judgment dismissing the complaint against him. We therefore modify
the order and judgment in appeal No. 1 accordingly.

     The deposition testimony of Weston was equivocal and inconsistent
with respect to whether he had constructive notice of a dangerous lead
paint condition on his property. For instance, Weston alternately
testified that there “could have been” peeling or chipping paint, that
he did not recall whether there was peeling or chipping paint, and
that he had “no problem” with peeling or chipping paint. Weston
similarly contradicted himself as to whether he knew that a child
lived in the apartment. Regarding the other Chapman factors, Weston
testified that he believed that he had a right to re-enter the
apartment to make repairs, and he admitted that he knew by 1990 that
lead was bad for children and that it could be found in houses like
his. In short, Weston’s testimony, unlike that of Abdoo and Bolos,
raised triable issues of fact regarding constructive notice (see
Williamson v Ringuett, 85 AD3d 1427, 1428-1429; Rivas v Danza, 68 AD3d
743, 744-745; Harden v Tynatishon, 49 AD3d 604, 605). There is no
merit to Weston’s contention that he established as a matter of law
that plaintiff’s injuries were not caused by the alleged dangerous
condition at his property.
                                 -3-                           293
                                                         CA 12-00977

     We reject plaintiff’s contention in appeal No. 1 that the court
erred in refusing to dismiss in their entirety the affirmative
defenses alleging that plaintiff failed to mitigate his damages. The
court properly dismissed those affirmative defenses only to the extent
that they allege that plaintiff failed to mitigate his damages prior
to the time he could be held responsible for his actions (see Sykes,
101 AD3d at 1674; Cunningham v Anderson, 85 AD3d 1370, 1372, lv
dismissed in part and denied in part 17 NY3d 948).

     With respect to appeal No. 2, we conclude that, because the court
properly granted the motion of Abdoo and Bolos for summary judgment
dismissing the complaint against them, those defendants were entitled
to an award of statutory costs pursuant to CPLR 8101.

     Finally, in appeal No. 3, we reject plaintiff’s contention that
the court erred in denying those parts of his motion to vacate the
order and judgment in appeal No. 1 and for leave to renew the prior
motion of Abdoo and Bolos as well as that part of his cross motion
with respect to those defendants. Plaintiff’s motion was based on a
document obtained by plaintiff during discovery entitled “Statement as
to Condition,” which was signed by Abdoo and Bolos at their closing
when they purchased the property from its prior owner. In the
document, Abdoo and Bolos acknowledge that they are aware “that the
premises contain or may contain lead[-]base[d] paint,” among other
hazardous conditions. According to plaintiff, the document
constitutes “new facts not offered on the prior motion that would
change the prior determination” (CPLR 2221 [e] [2]), “newly-discovered
evidence” that would have changed the result (CPLR 5015 [a] [2]), and
evidence of “fraud, misrepresentation, or other misconduct” by Abdoo
and Bolos. We reject that contention. The document is relevant to
only one of the Chapman factors — whether Abdoo and Bolos knew that
the property was constructed at a time before lead-based interior
paint was banned — and raises no issues of fact with respect to the
remaining factors. For instance, the document does not state that
defendants knew that there was peeling or chipping paint in the
apartment or whether a child resided therein (see id. at 21). In
addition, there is no evidence of fraud or misrepresentation on the
part of Abdoo and Bolos.




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
