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

996
CA 13-01391
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.


DEVON FAISON AND TIERRA FAISON, AN INFANT, BY
HER PARENT AND NATURAL GUARDIAN, KIMBERLY
BARNETT, PLAINTIFFS-APPELLANTS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

LEE LUONG, JAMES L. CUYLER AND GEORGIA CUYLER,
DEFENDANTS-RESPONDENTS-APPELLANTS.
(APPEAL NO. 1.)


ATHARI & ASSOCIATES, LLC, NEW HARTFORD (MO ATHARI OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS-RESPONDENTS.

SLIWA & LANE, BUFFALO (STANLEY J. SLIWA OF COUNSEL), FOR
DEFENDANT-RESPONDENT-APPELLANT LEE LUONG.

BURGIO, KITA, CURVIN & BANKER, BUFFALO (STEVEN P. CURVIN OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS-APPELLANTS JAMES L. CUYLER AND GEORGIA
CUYLER.


     Appeal and cross appeals from a judgment and order (one paper) of
the Supreme Court, Monroe County (John J. Ark, J.), entered May 9,
2013. The judgment and order denied the motion and cross motions of
the parties for summary judgment.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously modified on the law by granting the motion and
dismissing the complaint against defendant Lee Luong and by granting
the cross motion of defendants James L. Cuyler and Georgia Cuyler and
dismissing the cause of action for negligent ownership and maintenance
against them for the time period prior to September 30, 1994 and as
modified the judgment and order is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by plaintiff Devon Faison and his sister,
Tierra Faison, as a result of their exposure to lead paint as
children. The consolidated complaint asserted causes of action for
negligent ownership and maintenance of the subject properties, as well
as negligent abatement of the lead paint hazards. Defendant Lee
Luong, the landlord of one of the properties, moved for summary
judgment dismissing the complaint against him, which was limited to
allegations concerning Devon. Plaintiffs cross-moved for, inter alia,
summary judgment on the issues of “liability (notice, negligence and
substantial factor) against defendants” and dismissal of various
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                                                         CA 13-01391

defenses. Defendants James L. Cuyler and Georgia Cuyler, the
landlords of the other subject property, cross-moved for partial
summary judgment. By the judgment and order in appeal No. 1, Supreme
Court denied the motion and cross motions. Thereafter, the order in
appeal No. 2 was entered, which again denied the Cuylers’ cross
motion, and the order in appeal No. 3 was entered, which, inter alia,
again denied Luong’s motion. Plaintiffs appeal and defendants cross-
appeal from the judgment and order in appeal No. 1. In addition, the
Cuylers appeal from the order in appeal No. 2, and plaintiffs appeal
and Luong cross-appeals from the order in appeal No. 3.

     At the outset, we note that the “judgment and order” in appeal
No. 1 encompasses Supreme Court’s determination of the motion and
cross motions before it, and the orders in appeal Nos. 2 and 3 contain
no material or substantial change from the judgment and order in
appeal No. 1. We therefore dismiss the appeal from the order in
appeal No. 2 and the appeal and cross appeal from the order in appeal
No. 3, inasmuch as the appeal properly lies from the judgment and
order in appeal No. 1 (see generally Matter of Kolasz v Levitt, 63
AD2d 777, 779).

     Even assuming, arguendo, that plaintiffs tendered admissible
evidence establishing that Devon and Tierra were exposed to lead
paint, we conclude that the court properly denied that part of
plaintiffs’ cross motion for summary judgment on the issues of
“liability (notice, negligence and substantial factor).” “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 conclude that plaintiffs failed to meet
their initial burden of establishing that defendants had actual or
constructive notice (see generally Zuckerman v City of New York, 49
NY2d 557, 562). We reject plaintiffs’ further contention that the
court erred in denying that part of their cross motion seeking
dismissal of the Cuylers’ second affirmative defense, alleging
plaintiffs’ failure to mitigate. Here, plaintiffs “failed to show
that [the] defense[] lacked merit as a matter of law” (Pagan, 107 AD3d
at 1507).

     We agree with Luong, however, that he met his burden on his
motion with respect to the cause of action for negligent ownership and
maintenance of the subject property by establishing that he did not
have actual or constructive notice of the hazardous lead paint
condition, and Devon 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 Luong that he met his burden with respect
to the negligent abatement cause of action by establishing that he
abated the lead paint hazard in a reasonable manner, and Devon failed
to raise an issue of fact (cf. Pagan, 107 AD3d at 1506-1507; see
generally Juarez, 88 NY2d at 646). We therefore modify the judgment
and order in appeal No. 1 by granting Luong’s motion and dismissing
the complaint against him. Inasmuch as the complaint against Luong is
                                 -3-                           996
                                                         CA 13-01391

dismissed, we do not address the contentions of plaintiffs concerning
the court’s refusal to dismiss Luong’s various defenses.

     We agree with the Cuylers that the court erred in denying their
cross motion for partial summary judgment dismissing the cause of
action for negligent ownership and maintenance against them insofar as
it concerns the time period prior to September 30, 1994, the date on
which they received notification of a lead paint hazard from the
Monroe County Department of Health. We therefore further modify the
judgment and order in appeal No. 1 accordingly. Those defendants
established that, prior to that date, they did not have actual or
constructive notice of a lead paint hazard at the subject property,
and plaintiffs failed to raise a triable issue of fact (see Spain, 115
AD3d at 1369; see generally Chapman, 97 NY2d at 15).




Entered:   November 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
