In April, 2003, the instant action sounding in personal injury and medical malpractice, was commenced by service of a complaint. The allegations in the complaint arose from the infant plaintiffs's exposure to lead in his home owned by defendant James Valentino [Valentino] and the medical treatment rendered by defendant Saint Vincents Medical Center [St. Vincents].

Breeden v. Valentino

The infant plaintiff, John Breeden, was born at St. Vincents on October 10, 1993, and immediately thereafter resided with his parents on the second floor of the premises located at 110 Westervelt Avenue, Staten Island, New York [hereinafter "subject premises"]. At the time, the subject premises was owned by defendant James Valentino and was rented by Cora Aleman, the infants grandmother, who resided on the first floor with her husband and two sons. Also inhabiting the premises was the infant's aunt, Tonya Buckley, and her two sons on the third floor and the infant's great aunt, Marjorie Buckley, in the basement. Plaintiff states that each floor maintained a separate household complete with individual kitchens, bathrooms and telephone/cable service. Additionally, the residents of each floor paid rent to Mrs. Aleman, who then paid the total rent due to the landlord, defendant James Valentino. Plaintiff further contends that the condition of the premises was deplorable, with paint peeling off walls and holes/cracks throughout the structure.

In July 1994, nine months after the infant plaintiff was born, his sister tested positive for lead poisoning. As a result, the New York State Department of Health [DOH] performed an inspection of the subject premises and determined that lead levels in the home were hazardous and issued an Order to Abate Nuisance to Mr. Valentino. Subsequently, in both September 1994 [*2]and December 1994, the infant plaintiff tested negative for lead poisoning. Such testing was performed during routine medical visits at St. Vincents.

In February 1995, plaintiffs vacated the subject premises and moved to 30 Layton Ave, Staten Island, New York. While living at 30 Layton Avenue the infant plaintiff was tested again for lead exposure on October 23, 1996, and was diagnosed with lead poisoning after tests revealed his blood lead level was 29 ug/dL ^[FN1]. This positive testing result for lead poisoning occurred at Staten Island University Hospital, not at defendant St. Vincents. On May 23, 1996, DOH determined that the nuisance at the subject premises was abated.

In February 1997, the family returned to the subject premises where the infant plaintiff's lead levels remained elevated at 21 ug/dL in March 1997, 22 ug/dL in July 1997, 30 ug/dL in August 1997, 23 ug/dL in September 1997 and 23 ug/dL in October 1997. Later that year, the defendant, Willshire Finance Service, obtained title to the subject premises by Judgment of Foreclosure. In 1998, DOH issued a second Order to Abate Nuisance again finding hazardous lead levels at the subject premises. Thereafter, in August 1999, the plaintiffs again vacated the premises.

Generally, "to impose liability on a landlord for a lead paint condition, a plaintiff must establish that the landlord had actual or constructive notice of and a reasonable opportunity to remedy the hazardous condition" (Chapman v Silber, 97 NY2d 9, 22 [2001]; Patterson v. Brennan, 292 AD2d 582, 583 [2d Dept. 2002];Alonso v. Coutinho Enter. Inc., 35 AD3d 641, 641 [2d Dept. 2006]). However, in New York City, constructive notice of a lead paint condition is charged upon any landlord of a multiple unit premises built prior to 1960 when tenants who have children age six or younger are present (see Administrative Code of the City of New York, § 27-2056.5[a]; Juarez v. Wavecrest Management Team Ltd., 88NY2d 628, 642 [1996]). Whereas in a single family premises constructive notice can only be charged after the plaintiff has demonstrated that the landlord "(1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before lead-based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment" (Chapman v Silber, 97 NY2d 9, 22 [2001]).

Here, defendant Valentino asserts that he should not be charged with constructive notice, under the presumption of Local Law 1, because while the subject premises was built in 1925, it was built, sold and registered, as a single family dwelling. This proposition rests on the fact that the subject premises was built and leased as a single family property, with only one lease and one main entrance. In opposition, plaintiff argues that the payment of consideration to Mrs. Aleman as rent, along with the maintenance of separate kitchens, bathrooms, telephone and cable service, demonstrates that the premises was in use as a multiple dwelling, regardless of not being registered as such. Clearly, whether defendant Valentino can be charged with constructive notice of the lead paint hazard, pursuant to the Administrative Code of New York § 27-2056.4, rests on a host of triable issues of fact, as well as credibility issues of the parties, regarding whether the subject premises was a multiple unit dwelling or a single family dwelling and [*3]therefore, summary judgment is inappropriate (see Chase v. Skoy, 146 AD2d 563, 564 [2d Dept. 1989]; Galicia v. Ramos, 303 AD2d 631, 632 [2d Dept 2003]).

Breeden v. St. Vincents

From birth October 10, 1993, through December 1994, John Breeden was seen at the pediatric outpatient clinic of St. Vincents. The infant was seen several times for "well-baby" checkups before his first screening for lead poisoning in September 1994, soon after his sister tested positive. The initial test revealed the infant's lead levels were 9 ug/dL, a negative diagnosis for lead poisoning.^[FN2] His second test for lead poisoning, on December 15, 1994, indicated his lead levels decreased to 7 ug/dL, again a negative diagnosis for lead poisoning. Thereafter, the infant plaintiff was referred for surgical evaluation and received no further treatment/follow-up care for newborns at St. Vincents. The only additional contact the infant had with St. Vincents occurred on May 31, 1995, when he was admitted for treatment of an upper respiratory infection and was released on June 2, 1995.

The defendant St. Vincents established its prima facie entitlement to summary judgment by adducing expert opinion that it did not deviate from good and accepted medical practice in its treatment of the infant (see Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]). Defendant's expert, Dr. Anthony C. Mustalish, opined that considering (1) the infant plaintiff never tested positive for lead poisoning, (2) the lead levels in the infant's blood actually decreased after the first test, and (3) the fact that the infant exhibited normal behavior, presented no factors to warrant additional testing. As such, the defendant St. Vincents did not deviate from accepted medical practice in its treatment of plaintiff and established its prima facie entitlement to summary judgment dismissing the complaint as against it.

In opposition, the affidavit of plaintiff's medical expert, Dr. Douglas Savino, fails to raise a triable issue of fact. Plaintiff's expert offered only conclusory assertions and mere speculation that St. Vincents deviated from accepted medical practice in failing to render additional treatment to the infant plaintiff who never tested positive for lead poisoning while in its care (see Rodriguez v. Montefiore Med. Ctr., 28 AD3d 357, 357 [1st Dept. 2006]; Micciola v. Sacchi, 36 AD3d 869, 871 [2d Dept. 2007]). Pursuant to the New York State Public Health Law, lead poisoning is not diagnosed in children until the blood lead level reaches 10 ug/dL (see 10 NYCRR 67-1.1; Pub. Health Law § 1370[6]). Here, during the period when the infant plaintiff was treated at St. Vincents he was never diagnosed for lead poisoning and speculative assertions by an expert are insufficient to defeat a motion for summary judgment (see Micciola v. Sacchi, 36 AD2d 869, 871 [2d Dept. 2007][finding that conclusory or unsupported expert opinions are insufficient to raise triable issues of fact]). Therefore, the motion for summary judgment by St. Vincents must be granted.

Accordingly, it is,

ORDERED that the defendant James Valentino's motion for summary judgment against plaintiffs is denied, and it is further, [*4]

ORDERED that the defendant Saint Vincents Catholic Medical Centers of New York, Staten Island Region's motion for summary judgment against plaintiffs is granted.

THIS IS THE DECISION AND ORDER OF THE COURT.

E N T E R,

Dated: September 5, 2007

Hon. Judith N. McMahon

Justice of the Supreme Court