         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1337
CA 12-01085
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


TIANA SYKES, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STAN ROTH, DEFENDANT-RESPONDENT-APPELLANT.


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

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (KATHRYN A.
DALY OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered January 10, 2012.
The order, inter alia, denied the preclusion motion of defendant and
denied the cross motion of plaintiff for summary judgment.

     It is hereby ORDERED that said cross appeal is unanimously
dismissed and the order is modified on the law by granting the cross
motion in part and dismissing the second and third affirmative
defenses insofar as they allege that plaintiff failed to mitigate her
damages prior to the time she could be held responsible for her
actions and that plaintiff’s mother was negligent and the order is
otherwise affirmed.

     Memorandum: Plaintiff commenced this personal injury action
alleging that defendant is liable for injuries she sustained as the
result of the presence of lead paint in an apartment her mother rented
from defendant from plaintiff’s birth until she was two years of age.
Supreme Court properly denied that part of plaintiff’s cross motion
seeking partial summary judgment on liability, including the issues of
“notice, negligence and causation.” Even assuming, arguendo, that
plaintiff met her initial burden of establishing as a matter of law
that defendant had actual or constructive notice of the dangerous
condition and thus that defendant was negligent, we conclude that
defendant raised an issue of fact whether he had notice of the
presence of the lead paint on an exterior, second-floor porch, which
he subsequently removed at the direction of the Monroe County
Department of Health (DOH) (see generally Chapman v Silber, 97 NY2d 9,
15). We reject plaintiff’s contention that, pursuant to Real Property
Law § 235-b, there is a presumption that defendant had notice of the
dangerous condition. That section provides that, when entering into a
lease agreement, the landlord warrants that the premises are
habitable; it does not constitute “controlling legislation” warranting
                                 -2-                          1337
                                                         CA 12-01085

a determination that defendant had notice of the dangerous condition
(Chapman, 97 NY2d at 15).

      We conclude however, that the court erred in denying that part
of plaintiff’s cross motion seeking to dismiss the second affirmative
defense insofar as it alleges that plaintiff failed to mitigate her
damages prior to the time she could be held responsible for her
actions (see Cunningham v Anderson, 85 AD3d 1370, 1372, lv dismissed
in part and denied in part 17 NY3d 948; M.F. v Delaney, 37 AD3d 1103,
1104-1105), and the third affirmative defense insofar as it alleges
culpable conduct on the part of plaintiff’s mother, which sounds in
negligent parental supervision (see M.F., 37 AD3d at 1105; Ward v
Bianco, 16 AD3d 1155, 1156).

     Defendant’s cross appeal from that part of the order denying his
motion to preclude the admission of computer records from the DOH is
dismissed. Because the pretrial ruling does not limit a theory of
liability, but only determines the admissibility of evidence, that
part of the order is not appealable (see George C. Miller Brick Co.,
Inc. v Stark Ceramics, Inc., 2 AD3d 1341, 1342-1343; see also Mayes v
Zawolik, 55 AD3d 1386, 1387).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
