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

1013
CA 14-00099
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


MAISHA JACKSON, AS PARENT AND NATURAL GUARDIAN
OF KIAYRA JUNE, AN INFANT UNDER THE AGE OF
EIGHTEEN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HELENA VATTER, INDIVIDUALLY, AND AS
ADMINISTRATRIX OF THE ESTATE OF HAROLD VATTER,
DECEASED, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


SCHNITTER CICCARELLI MILLS PLLC, EAST AMHERST (PATRICIA S. CICCARELLI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ & PONTERIO, LLC, BUFFALO (ZACHARY J. WOODS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered May 7, 2013 in a personal injury action.
The order denied the motion for summary judgment brought by defendant
Helena Vatter, individually and as administratrix of the Estate of
Harold Vatter.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries allegedly sustained by her infant child as a result of the
child’s exposure to hazardous lead paint conditions on certain
properties in Rochester, New York, including property owned by Helena
Vatter (defendant) and her deceased husband. We conclude that Supreme
Court properly denied defendant’s motion for summary judgment.
Although defendant established as a matter of law that she lacked
actual notice of any hazardous lead paint condition on the property
she owned, we conclude that there is a triable issue of fact whether
she had constructive notice of such a hazard.

     In the absence of proof that an out-of-possession landlord had
actual notice of the existence of a hazardous lead paint condition, a
plaintiff can establish that the landlord had constructive notice of
such condition by showing 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
                                 -2-                          1013
                                                         CA 14-00099

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 v Silber, 97 NY2d 9, 15).

     We note that defendant appears to have conceded before the motion
court the second Chapman factor, i.e., that the house at issue was
constructed at a time before lead-based interior paint was banned. We
further note that defendant’s contention concerning the first Chapman
factor was not properly before the motion court inasmuch as defendant
raised that contention for the first time in her reply submissions
(see Korthas v U.S. Foodservice, Inc., 61 AD3d 1407, 1408; Walter v
United Parcel Serv., Inc., 56 AD3d 1187, 1188). The only factors at
issue on appeal, therefore, concern the third, fourth, and fifth
factors. Even assuming, arguendo, that defendant met her initial
burden of establishing as a matter of law that she lacked constructive
notice of a lead paint hazard at the premises, we conclude that
plaintiff raised issues of fact with respect to those three factors
(see generally Zuckerman v City of New York, 45 NY2d 557, 562).
Specifically, with respect to the third and fifth factors, plaintiff
submitted evidence from which it may be inferred that defendant knew
that paint was peeling on the premises and that a young child resided
there (see Jackson v Brown, 26 AD3d 804, 805). With respect to the
fourth factor, we conclude that plaintiff also raised an issue of fact
whether defendant knew of the hazards of lead-based paint to young
children (see id.). Notably, plaintiff submitted evidence
establishing that defendant subscribed to local Rochester newspapers,
and that those newspapers had carried a number of articles about the
hazards of lead-based paint to young children. Inasmuch as defendant
failed to eliminate all triable issues of fact with respect to the
five Chapman factors, we conclude that the court properly denied the
motion (see McDonald v Farina, 119 AD3d 1432, 1433; see generally
Heyward v Shanne, 114 AD3d 1212, 1214).

     Defendant’s remaining contentions are not properly before us
inasmuch as they were either raised for the first time in reply
submissions before the motion court or are raised for the first time
on appeal (see Korthas, 61 AD3d at 1408; Drisdom v Niagara Falls Mem.
Med. Ctr., 53 AD3d 1142, 1143).




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
