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

625
CA 14-01788
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


JESSICA MANFORD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FRED M. WILBER, DEFENDANT-APPELLANT.


KNYCH & WHRITENOUR, LLC, SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL),
FOR DEFENDANT-APPELLANT.

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


     Appeal from an order of the Supreme Court, Oswego County (James
W. McCarthy, J.), entered December 19, 2013. The order, among other
things, denied defendant’s motion for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages
arising from her exposure to lead paint as a child when she resided
for approximately one year in an apartment owned by defendant.
Defendant appeals from an order denying his motion for summary
judgment dismissing the complaint. We affirm. Initially, we reject
defendant’s contention that he was entitled to summary judgment with
respect to plaintiff’s negligent abatement cause of action. Because
there is evidence in the record that plaintiff’s blood lead level rose
during the period in which the abatement was performed by defendant,
there are issues of fact whether the abatement was negligently
performed and whether plaintiff “sustained additional injuries after
[defendant] received . . . notice” of the lead paint condition (Ortiz
v Lehmann, 118 AD3d 1389, 1390; see Pagan v Rafter, 107 AD3d 1505,
1506-1507).

     We also reject defendant’s further contention that he is entitled
to summary judgment because he met his initial burden on the issue of
causation and plaintiff failed to raise a triable issue of fact. The
parties submitted opposing affidavits of medical experts on the issue
whether plaintiff’s claimed injuries were caused by lead paint
exposure and, if so, how and when she was exposed, including whether
she had been exposed to lead from sources unconnected with defendant.
Under those circumstances, “neither party has established entitlement
to summary judgment on the issue of causation” (Derr v Fleming, 106
AD3d 1240, 1243).
                                 -2-                           625
                                                         CA 14-01788

     Finally, we reject defendant’s remaining contention that he was
entitled to summary judgment because he established that he had
neither actual nor constructive knowledge of the hazards of lead paint
to young children, the fourth factor in the five-factor test set forth
in Chapman v Silber (97 NY2d 9, 20-21), which “remain[s] the bas[is]
for determining whether a landlord knew or should have known of the
existence of a hazardous lead paint condition” (Watson v Priore, 104
AD3d 1304, 1305, lv dismissed in part and denied in part 21 NY3d
1052). Despite his persistent denials of any knowledge of the hazards
of lead paint to young children, defendant testified that he worked
for several years in a painters’ union and had experience in
remodeling homes and renting apartments that were inspected by the
United States Department of Housing and Urban Development. We
conclude that defendant’s testimony is sufficient evidence “from which
a jury could infer that [he] knew or should have known of the dangers
of lead paint to children. Therefore, . . . defendant[’s] motion for
summary judgment dismissing the complaint was properly denied” (Abreu
v Huang, 298 AD2d 471, 472; see Jackson v Vatter, 121 AD3d 1588, 1589;
cf. Williams v Thomas, 112 AD3d 1274, 1276, lv denied 22 NY3d 865).




Entered:   May 8, 2015                         Frances E. Cafarell
                                               Clerk of the Court
