Short Form Order

NEW YORK SUPREME COURT -QUEENS COUNTY

PRESENT: ORIN R. KITZES                          PART17

The following papers numbered 1 to24 read on this motion by defendant New York City Housing Authority for summary judgment in its favor pursuant to CPLR '3212 and dismissing plaintiff's complaint; and cross-motion by co-defendant Chiu Jan Cheung for summary judgment in his favor pursuant to CPLR '3212 and dismissing plaintiff's complaint and any cross-claims against him.

                                                                              PAPERS
                                                                              NUMBERED

Notice of Motion-Affirmation-Exhibits.................................1-4
Memorandum of Law-Exhibits.............................................. 5-6
Affirmation in Opposition...................................................... 7-8
Reply Affirmation................................................................... 9-10

Notice of Cross-Motion-Affirmation-Exhibits....................... 11-14

Opposition to Cross-Motion-Affirmation-Exhibits................ 15-17
Affirmation in Opposition-Exhibits........................................ 18-20
Reply Affirmation................................................................... 21-22
Affidavit.................................................................................. 23-24

Upon the foregoing papers, the motion and cross-motion for summary judgment are decided as follows:

This action to recover damages for personal injuries was brought on behalf of Julissa Sanchez, an infant, by her mother and natural guardian, Maria Sanchez, and Maria Sanchez, individually, against defendants Chiu Jan Cheung, Margaret M. Cioferro and the New York City Housing Authority (NYCHA). The infant Plaintiff allegedly sustained injuries from her exposure during the years commencing in 1991 through the present time to lead-based paint within apartments in buildings located at 68-12 79th Street, Middle Village (owned by defendant Cioferro) and 76-09 Cooper Avenue, Middle Village (owned by defendant Cheung). She was first diagnosed with an elevated blood lead level in June of 1993. Defendant New York City Housing Authority ("NYCHA") and co-defendant Cheung now move for summary judgment dismissing plaintiffs' complaint as against them.

Plaintiffs were tenants in the subject apartments under the Section 8 program of the United States Housing Act of 1937, codified at 42 USC ' 1437f (1994). NYCHA administered plaintiffs' tenancy at the aforesaid apartments in its capacity as a public housing agency ("PHA") pursuant to 42 USC ' 1437f (Section 8), as implemented by the United States Department of Housing and Urban Development ("HUD") regulations set forth in 24 CFR 882 and 982.

Plaintiffs' complaint against NYCHA alleges that NYCHA was negligent in failing to enforce State and local laws regarding lead paint, failing to properly inspect the apartments, and also alleges claims of common-law negligence. In support of its motion for summary judgment, NYCHA argues that since it was never the owner of the Section 8 properties at issue and its relationship to plaintiffs and the subject apartment arose solely pursuant to the Section 8 statute and regulations, it, as a nonowner PHA, cannot be held liable. The issue of whether a private right of action exists against NYCHA under the Section 8 statute, the Lead-Based Paint Poisoning Prevention Act ("LPPPA") (codified at 42 USC' 4822 et seq.), and their implementing regulations was recently addressed in Lindsay v. New York City Housing Authority, (1999 U.S. Dist. Lexis 1893) [ED NY February 24, 1999)] and Roman v Morace (1997 U.S. Dist. LEXIS 19926, [SD NY Dec. 15, 1997]). In these cases, the United States District Courts for the Southern and Eastern Districts of New York, after conducting extensive analyses of the Section 8

statute (42 USC ' 14370, the LPPPA, and their implementing regulations, under the standards set by the United States Supreme Court in Cort v Ash (422 U.S. 66, 45 L. Ed. 2d 26, 95 S. Ct.2080), concluded that no private right of action exists under these laws enabling individuals to sue NYCHA.

These rulings are consistent with the rulings by numerous New York State Supreme Courts which have addressed this issue. See Generally, Missouri v. Boyce, 1999 N.Y. Misc. Lexis 407 (Sup.Ct. Kings County, September 9, 1999) (Shaw, Jr., J.); (citing many New York cases holding no private right of action); Williams v City of New York, (Sup Ct., NY County, Mar. 30, 1999), (Gangel-Jacob, J., Index No. 116908/96);

In opposition to NYCHA's motion, plaintiffs implicitly concede that there is no private right of action against NYCHA under the Section 8 statute, the LPPPA, or their implementing regulations. Plaintiffs argue, however, that NYCHA may be

held liable to them based upon common-law negligence for its alleged failure to exercise reasonable care in performing the initial or move in inspection of the apartments, and for its alleged violation of State and local laws and regulations.

Initially, the court notes that a municipal agency may not be held liable to injured persons for negligently exercising or performing its governmental functions or its obligations imposed by statutes or regulations absent a special relationship. Iannucci v. Viscardi, 251 AD2d 379 (2d Dept. 1998). "Such a duty is found when a special relationship exists between the municipal [agency] and an individual or class of persons warranting the imposition of a duty to use reasonable care for those persons' benefit" (Garrett v Holiday Inns, 58 N.Y.2d 253,261(1983). Pursuant to this principle, liability is imposed where the municipal agency "has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefitted thereby". Id. at 262.

Plaintiffs infer that a special duty was owed to them by NYCHA, and that NYCHA may, therefore, be held liable to them for common-law negligence. In support of this contention, plaintiffs offer no legal support but rather amplify their negligence claim by suggesting that the presence of lead in the apartments after the inspection by NYCHA proves negligence. Such reliance, however, is misplaced since, merely

reiterating the negligence claim does not show a "special relationship" existed.

Plaintiffs further assert that NYCHA voluntarily and affirmatively assumed a special duty to them by determining that they were qualified to receive its assistance in housing placement and subsidies, and by acting on their behalf in providing such assistance by placing them in housing chosen and supervised by it. Plaintiffs also assert that NYCHA further assumed a special duty to them by its performance of a mandatory routine visual inspection of the premises before placing them to live at such premises. These assertions are insufficient to establish a special relationship between plaintiffs and NYCHA so as to create a duty owed by NYCHA to protect them from lead poisoning. Plaintiffs have shown no evidence demonstrating that NYCHA had exceeded its general duty to provide assistance in housing placement and for lead paint inspection and abatement under the Federal regulations in its role as a Section 8 administrator, or that it took any steps beyond those required of it pursuant to statutory mandates. Nor is there any suggestion of detrimental reliance by the plaintiffs upon representations by NYCHA inspectors to the safety of the premises. Compare, Bargy v. Sienkiewicz, 207 AD2d 606 (3rd Dept. 1994); Curry v. Davis, 241 A.D.2d 924 (4th Dept. 1997). Thus, since no special duty was owed by NYCHA to plaintiffs, liability for common-law negligence may not be imposed upon it (see, Lindsay v New York City Housing. Auth.,supra; Missouri v. Boyce, supra.

To the extent Plaintiffs contend that NYCHA may be held liable to them in negligence for its alleged violations of State and local laws and regulations respecting lead paint poisoning, these claims are also without merit. The Section 8 statute, the LPPPA, and the implementing regulations do not impose any affirmative duty upon the PHA to enforce local and State laws concerning lead paint (see, Roman v Morace, supra, 1997 WL 777844; Missouri v. Boyce, supra.

Therefore, since NYCHA may not be held liable to plaintiffs for its alleged violation of State and local laws and regulations or for its alleged negligence and violation of its common-law duties, summary judgment dismissing plaintiffs' complaint as against it must be granted. CPLR 3212[b].

Co-defendant Cheung seeks summary judgment based upon there being no allegations that the infant plaintiff was exposed to lead based paint while living in the Cheung apartment building, located at 76-09 Cooper Avenue, Middle Village. It is undisputed that plaintiffs resided at this address from August 1991 until October 1992. Furthermore, it is undisputed that while plaintiff infant resided at Cooper Avenue, her blood lead level tested at 7 ug/dl, which is considered normal. In fact, there are no allegations of plaintiff having an elevated blood level until June,1993, over 7 months after she moved from this apartment.

Co-defendant Cheung also argues that during the period of plaintiffs' residency in the Cooper Avenue apartment, there is no evidence that lead paint was present in that apartment. During this time, the apartment was inspected by NYCHA and certified as safe, sanitary and without peeling or chipping paint. He also submits a letter from the New York Department of Health that states no environmental records were referenced for the subject apartment building. Finally, he argues, since the apartment was completely renovated with, inter alia, new plaster walls and paint after an August 1989, fire, it is unlikely that any lead based paint was present in 1991.

Generally, "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". Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996].) However, as the Court of Appeals has stated, various provisions of the Multiple Dwelling Law partially nullify the common law with respect to multiple dwellings. In particular, Local Laws, 1982, No. 1 of the City of New York ' 1 (Local Law 1), codified at Administrative Code ' 27-2013 (h) (2), "establishes a presumption that, in any building erected prior to 1960, peeling paint in a dwelling unit occupied by a child six years of age or under comprises a hazardous lead condition". Juarez v Wavecrest Mgt. Team, 88 NY2d, at 647.) Paragraph (1) of subdivision (h) establishes the owner's duty to remove paint or [*863] similar surface coating material if the lead level exceeds 0.5%, of metallic lead or has a reading of 0.7 milligrams of lead per square centimeter or greater. Id. at 641-642. Read together, these provisions give the landlord an

implicit right of entry to correct hazardous lead conditions and sufficient control to sustain a finding of liability. Id. at 643. Thus, if there is a peeling paint condition in an apartment inhabited by a child of six years of age or under in a building constructed prior to 1960, there is a rebuttable presumption of liability against the landlord.

Co-defendant's factual showing satisfied his initial burden of rebutting the presumption of liability by making a prima facie showing that either there was no hazardous lead condition or a lack of notice of such condition. In order to prevail, it was incumbent upon the plaintiffs, in opposition to this prima facie showing of entitlement to summary judgment, to lay bare their proof as to the co-defendant's actual or constructive notice of the lead paint hazard. Andrade v. Wong, 251 AD2d 609 (2d Dept. 1998) The plaintiffs failed to meet this burden.

Here, plaintiffs have countered defendants' showing with an attorney's affirmation. This affirmation refers to Marissa Sanchez= hearing testimony, which stated she observed peeling paint in the Cheung apartment and her daughter Julissa put paint chips in her mouth while residing at this apartment. The attorney then states that infant plaintiff's blood lead level of 7 micrograms per deciliter while living at the Cheung apartment demonstrates she ingested lead. Co-defendant Cioferro also opposes the cross-motion for summary judgment with an attorney's affirmation. Therein, the attorney speculates that the child's blood level of 7 ug/dl continuously rose until she moved from the apartment and was tested over 6 months later and found to have an elevated level of 24 ug/dl.

Initially, these affirmations are insufficient to raise a triable issue since they contain only conclusions and speculations of the attorneys without proof or foundation. McGahee v. Kennedy, 48 N.Y.2d 832 (1979). In any event, even assuming that there was peeling and chipping paint within the subject premises, this does not establish that the premises contained lead-based paint. See, Lanthier v Feroleto, 237 AD2d 877(4th Dept. 1997). Moreover, plaintiffs= attorney's affirmation refutes his own conclusion that a blood lead level of 7 ug/dl indicates ingested lead by stating that the Center for Disease Control and the New York City Health Code define lead poisoning as 10 ug/dl. There is no evidence that such level was reached until after plaintiff had moved from the Cheung

apartment. Similarly, co-defendant Cioferro's assertion that the infant plaintiff's blood level was elevated when she left the Cheung apartment is not competent evidence. This assertion is premised upon plaintiff being able to retain such level for a substantial period prior to her June 1993 examination, which for the first time indicated an elevated blood lead level. This conclusion is devoid of any reference to a foundational scientific basis and as such is insufficient to establish the existence of a material issue of fact which requires a trial. See, Romano v. Stanley 90 NY2d 444 (1997); see also, Kracker v. Spartan Chemical Co., Inc., 183 AD2d 810 (2d Dept. 1992).

Finally, co-defendant Cioferro claims the cross-motion for summary judgment is premature since they have not conducted depositions of either the plaintiff or co-defendant Cheung. While, pursuant to CPLR 3212(f), a motion for summary judgment may be denied to permit disclosure to be had where "it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist

but cannot then be stated," here, the opposing papers by co-defendant Cioferro give no reason to believe that discovery would produce any evidence supporting liability on the part of the co-defendant Cheung. Cioferro's attorney's statement that further discovery will reveal additional facts regarding the deplorable condition of the Cheung apartment, does not sufficiently demonstrate what facts or evidence might be uncovered through discovery that are relevant to the issues presented regarding the presence of lead based paint and does not provide a basis for postponing the court's decision on this motion. See, CPLR 3212[f]; Wood v Otherson, 210 A.D.2d 473, 474 (2d Dept. 1994). Accordingly, co-defendant Cheung's cross-motion for summary judgment and dismissing plaintiffs= complaint as against him is granted.