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

126
CA 14-01142
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


CHRISTOPHER HAMILTON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOHN MILLER, DAVID MILLER, JULES MUSINGER,
DOUG MUSINGER AND SINGER ASSOCIATES,
DEFENDANTS-RESPONDENTS.


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

SLIWA & LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS JOHN MILLER AND DAVID MILLER.

WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (JOSHUA M. AGINS OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS JULES MUSINGER, DOUG MUSINGER AND
SINGER ASSOCIATES.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered December 5, 2013. The order granted the motion of
defendants John Miller and David Miller for summary judgment and
dismissed the complaint against those defendants, and denied the cross
motion of plaintiff for, inter alia, partial summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained as the result of exposure to lead
paint in apartments rented by his mother from defendants when he was a
child. Defendants John Miller and David Miller moved for summary
judgment dismissing plaintiff’s complaint as against them. Plaintiff
cross-moved for, inter alia, partial summary judgment against the
Millers, as well as the remaining defendants (Musinger defendants), on
the issues of “liability (notice, negligence and substantial factor),”
and dismissal of various affirmative defenses. Supreme Court granted
the Millers’ motion and denied plaintiff’s cross motion. 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 Pagan v Rafter, 107 AD3d 1505, 1506; see generally
Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646). We agree with the
                                 -2-                           126
                                                         CA 14-01142

Millers that they met their burden on their motion with respect to the
cause of action for negligent ownership and maintenance of the
premises by establishing that they did not have actual or constructive
notice of the hazardous lead paint condition, and plaintiff failed to
raise a triable issue of fact (see Spain, 115 AD3d at 1369; see
generally Chapman v Silber, 97 NY2d 9, 15). We further agree with the
Millers that they “met their burden with respect to the negligent
abatement cause of action by establishing that they abated the lead
paint hazard in a reasonable manner, and plaintiff failed to raise a
triable issue of fact” (Moye v Giambra, 125 AD3d 1411, 1412; cf.
Pagan, 107 AD3d at 1506-1507). For the same reasons, we conclude that
the court properly denied plaintiff’s cross motion for partial summary
judgment against the Millers.

     Plaintiff further contends that the court erred in denying that
part of his cross motion for partial summary judgment against the
Musinger defendants on the issues of “liability (notice, negligence
and substantial factor).” We reject that contention. Under the
circumstances of this case, we conclude that there is an issue of fact
whether the Musinger 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 Heyward v Shanne, 114 AD3d 1212, 1213).
With regard to constructive notice, we conclude that there are issues
of fact with respect to the first Chapman factor, i.e., whether the
Musinger defendants retained a right of entry to the premises, and the
third Chapman factor, i.e., whether the Musinger defendants were aware
that paint was peeling on the premises (see Watson v Priore, 104 AD3d
1304, 1305-1306, lv dismissed in part and denied in part 21 NY3d 1052;
see also Heyward, 114 AD3d at 1214; see generally Chapman, 97 NY2d at
15, 20-21). We also conclude that there is an issue of fact as to
causation (see Heyward, 114 AD3d at 1214; Robinson v Bartlett, 95 AD3d
1531, 1534-1535).

     Finally, the court properly denied that part of plaintiff’s cross
motion seeking to dismiss certain affirmative defenses asserted by the
Musinger defendants inasmuch as plaintiff failed to show that those
defenses lacked merit as a matter of law (see Heyward, 114 AD3d at
1214-1215; Pagan, 107 AD3d at 1507).




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