Robles v City of New York (2006 NY Slip Op 51554(U))

Robles v City of New York

2006 NY Slip Op 51554(U) [12 Misc 3d 147(A)]

Decided on August 10, 2006

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Wendy Robles, and her four minor children, Madelyn Martinez, Maxine Martinez, Mariana Dueno and Alexandria Alejandrino Dueno, on behalf of themselves and all persons similarly situated, Plaintiffs-Respondents/ Cross-Appellants,

against

The City of New York, et al, Defendants, -and- New York City Housing Authority, Defendant-Appellant/ Cross-Respondent.

Defendant New York City Housing Authority (NYCHA) appeals, and plaintiffs cross-appeal, from an order of the Civil Court, New York County (Jose A. Padilla, Jr., J.), dated December 23, 2004, which denied their respective motions for summary judgment, determined that NYCHA is collaterally estopped from contesting Department of Health findings of excessive levels of lead in plaintiffs' apartment, and granted NYCHA leave to seek an apportionment of liability at trial under CPLR article 16.

Order (Jose A. Padilla, Jr., J.), entered December 23, 2004, modified to vacate the determination that defendant NYCHA is collaterally estopped from contesting Department of Health findings of excessive lead in the premises; and as modified, affirmed, with $10 costs.

The prior "Order to Abate Nuisance" issued by the Department of Health, which [*2]contained findings of excessive lead levels in the subject apartment, lacked preclusive effect since it did not constitute a "final determination" by an agency (cf. Perez v New York City Housing Authority, 304 AD2d 736 [2003]), issued after a hearing affording a full and fair opportunity to contest the findings before an administrative tribunal (see Jeffreys v Griffin, 1 NY3d 34, 39 [2003]; Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147 [1998]). The accuracy of the results of the testing conducted by the Department of Health was never litigated before the administrative agency.

Summary judgment was properly denied inasmuch as triable issues of fact exist as to whether the infant plaintiffs' high levels of lead were attributable to exposure to excessive levels of lead at the subject apartment (see Munoz v Puretz, 301 AD2d 382 [2003]). Finally, Civil Court appropriately reserved the question of apportionment of liability under Article 16 of the CPLR.

This constitutes the decision and order of the court.
Decision Date: August 10, 2006