The petition in this matter alleges that respondents falsely certified the correction of the violation number 5215715 issued on November 18, 2004 for lead-based paint , and petitioner seeks the imposition of a civil penalty in the amount of $3000.00 pursuant to the Administrative Code of Code of the City of New York §27-2115 (1)(5). In their answer, respondents denied the allegations in the petition and asserted that they timely corrected the violation. At issue in this proceeding is the work done by respondents to correct the violation, and whether this work complies with the requirements of Local Law 1.

At trial, petitioner introduced into evidence the property registration dated March 4, 2004 which named Morris Lieberman as the managing agent and 712 Realty LLC as the owner of the property located at 712 East 27th Street, Brooklyn. Petitioner established that a violation was issued, and respondent Morris Lieberman's certification of correction of the violation, petitioner's report of the reinspection conducted on January 29, 2005, and its notice of invalidated certification were also introduced into evidence. In addition, petitioner presented a closed violation summary report for the subject violation which was admitted into evidence over respondents' objection. The report indicates that the violation was corrected by HPD.

Respondents called Martin Ukege, the inspector who conducted the reinspection subsequent to the certification of the violation on January 29, 2005, as their witness. Mr. Ukege testified that he determined the location of the areas found to be in violation through the drawings of the apartment made by the inspector on November 22, 2004, and the cardinal points. He conducted a visual inspection and observed peeling paint in the same areas that were indicated on the drawing. [*2]

Mr. Shai Sasson, President of Lead Investigation Inc. testified on behalf of respondents. Mr. Sasson stated that an inspector from his company visited the premises on December 30, 2004 and returned with dust samples which were sent out to the laboratory for testing. According to Mr. Sasson, the lab results were negative, and his company sent a letter stating the results to respondents on January 3, 2005. However, Mr. Sasson did not visit the apartment and had no personal knowledge of the work that was done in the apartment.

Respondents also presented Albert Benarroch, a self employed lead abatement contractor, as a witness. Mr. Benarroch testified that he was hired to perform lead abatement work in the subject apartment in December 2004. Mr. Benarroch's qualifications included a certificate of completion of an EPA approved "Lead-Based Paint Supervisor Initial" from Big Apple Occupational Safety Corp. which stated that the interim certification expired on May 4, 2005, and a certificate qualifying Mr. Benarroch as a supervisor of lead-based paint activities from the United States Environmental Protection Agency issued on February 2005 and expiring on February 25, 2008.

Mr. Benarroch testified that he completed the work alone, and worked on the apartment door inside and outside as well as the door frame. He first set up a contained work area and applied a solvent to soften the paint. He then scraped the paint and followed with an application of primer. Mr. Benarroch testified that he completed the job in one day, and the paint was intact when he was finished. However, Mr. Benarroch testified that he would now recommend removal of the door since it is a friction surface and peeling of the paint could reoccur. Respondent introduced pictures of the inside and outside of the door into evidence.

Petitioner contends that respondents' witnesses and evidence failed to rebut petitioner's prima facie case. Petitioner asserts that the testimony of Mr. Sasson was irrelevant, Mr. Bennaroch was not qualified to perform the lead abatement work and the photographs submitted by respondents support petitioner's claim that the violation was not corrected. Petitioner also asks the court to draw a negative inference from the fact that there was no testimony from respondent Morris Lieberman who certified the correction of the violation.

Respondents counter petitioner's arguments and assert that Mr. Bennaroch was licensed to complete the lead abatement work pursuant the guidelines of Local Law 1. Further, respondents claim that the dust sample test results support their contention that the violation was corrected. In addition, respondents also aver that petitioner's claim that the violation was not corrected is based on a visual reinspection which is insufficient to support a finding that respondents falsely certified the correction of the violation.

Petitioner established that it issued a lead-based paint violation, respondents certified correction of the violation, and upon reinspection, petitioner found that the violation was not corrected. Contrary to respondents' assertion, the testimony of petitioner's inspectors regarding their visual inspections was sufficient to support petitioner's claim that the violation was not corrected. [*3]

Before a lead-based paint violation is placed, under Housing Maintenance Code §27-2056.9 (a) a visual inspection is conducted and if peeling paint or deteriorated subsurfaces are found in an apartment, constructed before January 1, 1960 where a child under the age of seven resides, X-ray Fluoresence testing is conducted pursuant to Housing Maintenance Code §27-2056.9 (c) to determine if the lead content of the paint is 1.0 milligrams of lead per square centimeter or greater (see Housing Maintenance Code §11.01(t) ). If the testing conducted pursuant to Housing Maintenance Code §27-2056.11(1) determines that the lead content is above the legal level, a violation is issued. Upon reinspection to determine if a violation was corrected, if there is visual evidence of surfaces that are not intact in the area in which the violation was placed, X-ray fluoresence retesting is not required since, as in this case the door, the area in question was already tested, it was not replaced, and surface defects were found in the same areas cited on the initial inspection.

Respondents' photographs show a freshly painted door, and respondents contend that they show that the work was done. Respondents also claim that if the inspectors observed any disturbance on the surface it is a new occurrence. However, there is no explanation for the fact that the inspector observed disturbances on the surface which was allegedly corrected a month earlier. The photographs show that the door was painted, but the pictures cannot support a conclusion that the lead-based hazard was corrected. Mr. Benarroch testified that he wet scraped the door, but was unable to name the solvent used to perform the scraping. Mr. Benarroch also conceded that a door should be replaced since it is a friction surface on which peeling can reoccur.

Respondents argue that the dust clearance tests show the dust levels were within acceptable levels. Dust clearance tests are required pursuant to Chapter 11 of the Housing Maintenance Code §11.01(g)(1)(ix)( C, D). After surfaces are disturbed by lead paint work, the code imposes strict clean up requirements including HEPA-vacuuming of all debris and dust. The fact that the dust wipe tests show acceptable levels speaks to the adequacy of the clean up, but not to the proper correction of the lead paint violation. In addition, Housing Maintenance Code 27-2115(l)(5) requires both an inspection to verify that the violation was corrected, and dust clearance test results before lead-based paint violation can be removed from HPD records. Therefore, it is evident that dust clearance testing is an additional requirement and they do not represent proof that the violation was corrected.

Petitioner also argue that respondents' lead abatement contractor did not meet the requirements of Local Law. Housing Maintenance Code §27-2056.11(a)(1) requires that lead abatement work performed to correct a violation be performed only by firms certified to perform lead abatement work by the US Environmental Protection Agency. Under Chapter 11 of the Housing Maintenance Code§11.01(n) a firm is defined as a company, partnership, corporation, sole proprietorship, association or other business entity certified to perform lead paint work under 40 CFR 745.226 (f). Both the interim certificate, and the EPA certificate state Mr. Benarroch is qualified to perform lead paint activities as a supervisor.

The Housing Maintenance Code explicitly differentiates between lead paint work done as result [*4]of a violation or an order to correct and lead paint work which is not in response to a violation or an order to correct. The latter can be completed by a person who completed a course on lead-safe work practices, Housing Maintenance Code §27-2056.11(a)(2)(i). Local Law 1 provides that an owner has a duty to investigate and remediate lead-based paint hazards, and the aforementioned section would apply if the area requiring remediation is less that 100 square feet or when work is completed upon turnover of the apartment. An owner completing lead abatement work to correct a violation or pursuant to an order to correct is subject to different requirements in completing lead abatement work and is also subject to penalties for falsely certifying the correction of the violation. The City Council enacted Local Law 1 in 2004 to address the severe health crisis of lead poisoning among children in the New York City. The stated goal of Local Law 1 is to eliminate lead poisoning in children by the year 2010, and in order to accomplish this goal landlords of residential buildings are charged with a duty to, at a minimum, conduct annual investigations and correct any existing lead based paint problems in their buildings. It is evident that the voluntary compliance by owners would go a long way toward eradicating the problematic vestiges of lead paint, and the number of violations for lead paint hazards would also substantially decrease. Property owners would also not incur the higher costs of contracting with the specialized workers Local Law 1 requires when a violation is placed.

When a violation is placed, Housing Maintenance Code §27-2056.11(a)(1) provides that the safety standards be no less stringent than required under 24RCNY Health Code §173.13. Under the aforementioned rules, a person trained as a lead abatement supervisor is qualified to perform lead abatement work ( see 24RCNY Health Code §173.14 (c)(2)(A) and 40 CFR Part 745). Therefore, although HMC §27-2056.11(a)(1) specifically states that the work can only be completed by firms, the EPA requirements and the requirements under the Health Code permit lead abatement work to be completed by firms and workers with the requisite training and certification and the qualifications of respondent's contractor met these requirements.

Based on the foregoing, petitioner has made a prima facie showing that the violation was not corrected. Respondents did not rebut petitioner's prima facie case. The violation was not corrected. Accordingly, respondents' certification of correction was properly invalidated, and respondents are subject to penalties pursuant to Administrative Code § 27-2115 (l)(5). The statute provides for a maximum fine of $3000.00 and a minimum of $1000.00 for each violation. As in DHPD v. 537 Clinton LLC, 11 Misc 3d 327 (2005), where the court considered respondent's efforts to correct the violations as a mitigating factor in determining the amount of the penalty, this court determines that a fine in the amount of $1000.00 is appropriate under the facts of this case.

The petition is hereby granted, and petitioner is granted civil penalties in amount of $ 1000.00.

This constitutes the decision and order of this court.



Dated: February 27, 2007_______________________

Cheryl J. Gonzales, JHC