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

323
CA 13-01099
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


ELIJAH HAMILTON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GEORGE PICARDO, DEFENDANT-RESPONDENT.


LIPSITZ & PONTERIO, LLC, BUFFALO (JOHN NED LIPSITZ OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (THOMAS E. REIDY OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Monroe County (John J. Ark, J.), entered March 1, 2013. The
judgment and order granted defendant’s motion for summary judgment
dismissing plaintiff’s complaint.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained as a result of his exposure to lead paint as a
child between 1991 and 1997. We conclude that Supreme Court properly
granted defendant’s motion for summary judgment dismissing the
complaint. Defendant and his wife acquired the property by deed in
January 1993, and they took title to the property as tenants by the
entirety. Defendant’s wife died in 2004. Defendant testified at his
deposition that his participation in the acquisition of the property
was as an accommodation to the financial situation of his wife’s son
and her nephew. Defendant denied that he had anything to do with the
property and asserted that he was only an owner “on paper.” Defendant
never saw the property, never went there, never received any rent, did
not know that a child resided there and never received any
correspondence related thereto. Defendant did not execute any lease
agreements with respect to the property. “To establish that a
landlord is liable for a lead-paint condition, a plaintiff must
demonstrate that the landlord had actual or constructive notice of,
and a reasonable opportunity to remedy, the hazardous condition”
(Rodriguez v Trakansook, 67 AD3d 768, 768-769). Defendant met his
burden of establishing that he had no actual or constructive notice of
the hazardous lead paint condition prior to an inspection conducted by
the Monroe County Department of Health, and plaintiff failed to raise
a triable issue of fact (see Joyner v Durant, 277 AD2d 1014,
1014-1015; see also Sanders v Patrick, 94 AD3d 1514, 1515, lv denied
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                                                         CA 13-01099

19 NY3d 814; see generally Chapman v Silber, 97 NY2d 9, 15). We
reject plaintiff’s contention that actual or constructive notice of
the dangerous lead condition may be imputed to defendant because of a
general awareness of the hazards of lead paint (see Boler v Malik, 267
AD2d 998, 998-999; Hines v RAP Realty Corp., 258 AD2d 440, 441, lv
denied 93 NY2d 812). We likewise reject plaintiff’s further
contention that the alleged communications concerning the management
of the property between defendant’s wife and her son, reflected in the
record by the double hearsay deposition testimony of her nephew,
should be imputed to defendant. With respect to the dissent’s
reliance upon that double hearsay, we note that defendant’s nephew
testified that he never spoke with defendant concerning the day-to-day
management or maintenance of the property, the leasing of the property
or the collection and retention of rent. The sole basis for the
deposition testimony was a conversation between defendant’s wife and
her son, but defendant’s nephew neither participated in nor heard that
conversation. Thus, while the record suggests that defendant’s nephew
may have acted as an agent for defendant’s wife with respect to the
premises, the double hearsay of defendant’s nephew was insufficient to
raise an issue of fact concerning his authority to act as defendant’s
agent (see Baldo v Patton, 65 AD3d 765, 767). “ ‘No agency is to be
implied as between husband and wife from the mere fact of marriage’ ”
(Falk v Krumm, 39 Misc 2d 448, affd 22 AD2d 911). Nor does joint
ownership evidenced by tenancy by the entirety create such a
relationship under agency law (see Matter of Baker v Westfall, 30 Misc
2d 946, 948). The dissent’s reliance upon a Monroe County Department
of Social Services “Landlord Statement” is similarly misplaced. The
statement is signed by defendant’s nephew in three capacities: “Owner
of Property,” “Landlord” and “Agent for Landlord.” That document
contains no reference or entry with respect to defendant. To the
extent that the document may be relied upon to create an implied
agency, we note that the only “agency” relationship discernable from
its face is based on one person acting in various capacities.
Moreover, neither plaintiff nor the dissent point to any evidence of
words or conduct by defendant communicated to a third party, i.e.,
plaintiff or his mother as tenant of the rental unit, giving rise to
an appearance and reasonable belief that an agency relationship had
been created (see Pyramid Champlain Co. v R.P. Brosseau & Co., 267
AD2d 539, 544, lv denied 94 NY2d 760).

     All concur except FAHEY, J., who dissents and votes to reverse in
accordance with the following Memorandum: I respectfully dissent and
would reverse the judgment and order, deny the motion and reinstate
the complaint. “ ‘[I]n 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’ ” (Heyward
v Shanne, 114 AD3d 1212, 1213, quoting Juarez v Wavecrest Mgt. Team,
88 NY2d 628, 646). In my view, under the circumstances of this case,
there is an issue of fact whether defendant “had notice of the
dangerous lead paint condition in the subject [house] ‘for such a
period of time that, in the exercise of reasonable care, it should
have been corrected’ ” (id., quoting Juarez, 88 NY2d at 646).
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                                                         CA 13-01099

     Chapman v Silber (87 NY2d 9) is familiar if not seminal lead-
based paint jurisprudence, and there the Court of Appeals taught that
constructive notice of a hazardous, lead-based paint condition may be
established by evidence “that the landlord (1) retained a right of
entry to the premises and assumed a duty to make repairs, (2) knew
that the [residence] 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” (id.
at 15). Defendant concedes the fourth Chapman factor, i.e., that he
was aware of the hazards of lead-based paint, and in my view there are
issues of fact with respect to the remaining Chapman factors. Here,
the record established that the house at issue was owned by defendant
and his wife at the time plaintiff lived at that residence and was
allegedly exposed to lead-based paint hazards therein. The record
also establishes that defendant’s nephew testified that, based on his
recollection of descriptions of conversations between defendant’s
stepson and defendant’s wife, he and defendant’s stepson acted with
the authority of defendant and defendant’s wife with respect to the
maintenance and upkeep of the house, interactions with tenants,
receipt of rent money, possession of keys, repairs, and the overall
management of the house. That evidence, together with the deposition
testimony of defendant’s nephew concerning a signed landlord statement
showing defendant’s nephew as both owner and agent for the house in
question, creates issues of fact whether defendant’s nephew acted as
defendant’s agent with respect to the house (see 2A NY Jur 2d, Agency
and Independent Contractors § 23), and whether plaintiff may satisfy
the Chapman factors contested by defendant.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
