Carlos Peralta (Peralta) brings this action on behalf of his son, Jean Carlos Peralta (plaintiff), an infant, to recover damages for personal injuries resulting from exposure to lead-based paint. Defendants J & M Realty Services Corp. (J & M) and Jerry Edelman move for summary judgment dismissing the complaint. From October 2004 to September 17, 2008, J & M managed the building in which plaintiff was allegedly exposed to lead. Edelman is J & M's president.

Background

Peralta moved into apartment B2, a basement apartment in a Manhattan multiple dwelling, in 1987. Plaintiff was born on November 3, 1998, and he and his mother lived in the Bronx, separately from his father. Plaintiff stayed with his father two or three times a week. Later, plaintiff and his mother started living with the father, in apartment B2. The family continues to live there. Plaintiff testified that he started living full-time with his father when he was four years old, in 2002, while Peralta testified that plaintiff started living with him after ownership of the building changed, which happened in October 2004, when plaintiff was nearly six years old.

The complaint alleges that the paint on the walls, doors, window sills, and ceilings in the apartment contained lead and that the paint was peeling and falling. Peralta, plaintiff's father, alleges that plaintiff got black dust on his hands from the bottom of a windowsill, that he put his fingers in his mouth, and that he ate paint chips. Allegations concerning the date of exposure are conflicting. The bill of particulars alleges that plaintiff ate lead-based paint chips and breathed in lead-based paint dust from approximately November 2002 to July 2003, but the complaint alleges that the exposure took place through August 2005.

On August 11, 2005, the City of New York Department of Housing Preservation and Development, Division of Code Enforcement (HPD) tested 49 areas in the apartment (defendants' exhibits F and R). One area, a window frame, was found to have a lead presence of [*2]1.0 mg/cm2 (1 milligram of lead per square centimeter). The other areas had less than that amount. The HPD record states that areas that indicate a lead presence of less than 1.0 do not have lead-based paint and that areas that indicate a lead presence equal to or more than 1.0 have lead-based paint. There is no allegation that the apartment was tested more than once.

Blood lead levels (BLLs) are recorded in units of micrograms per deciliter (ug/dl). 10 ug/dl means 10 micrograms of lead per deciliter of blood (Vega v S.S.A. Props., Inc., 13 AD3d 298, 299 n 1 [1st Dept 2004]). Plaintiff's BLLs are listed chronologically: 11/12/99 - 6 ug/dl; 10/31/00 - 8 ug/dl; 3/2/01 - 6 ug/dl; 4/27/01 - 7 ug/dl ; 4/4/02 - 9 ug/dl; 10/18/02 - 11 ug/dl; 4/29/03 - 6 ug/dl ; 8/29/05 - 9 ug/dl; 11/7/05 - 6 ug/dl; 2/10/06 - 6 ug/dl; 8/13/08 - 5 ug/dl ; 11/23/09 - 3 ug/dl; 10/28/10 - < 2 ug/dl (defendants' exhibits G, H, and J). Plaintiff was diagnosed as suffering from attention deficit hyperactivity disorder (ADHD) due to lead exposure (Comprehensive Evaluation by Avraham Y. Hoch, M.D. after 10/18/13 Examination).

When, in October 2004, the building was sold, the new building owner hired J & M pursuant to an oral contract. Before the new owners completed the purchase, Edelman inspected the building. Edelman did not see peeling paint in the apartments that he inspected. He does not remember if he inspected the basement apartments. The building was built in the early 1920s, so he presumed that it contained lead paint. Edelman was aware that young children lived in the building, but "not specifically" children under the age of 6 (deposition transcript at 18). The roster of tenants that he received upon becoming manager did not indicate family composition.

In 2005, Edelman learned that there was peeling paint and other problems in B2. He does not remember how he found out about the lead. He entered B2 in 2005 for the first time by appointment with the tenant and thereafter returned two or three times. He was asked if he had "any personal knowledge of any children in B2" before he first entered the apartment. He responded "I don't know if I was aware of children or not. I may have been" (id. at 53).

He saw that B2 was illegally divided and that there was peeling paint on the ceiling. He was not permitted to see the entire apartment. He does not remember seeing children in B2. Workers corrected the improperly built walls and electrical and plumbing issues. According to Edelman, they tried to deal with the peeling paint but the tenant often denied access (deposition transcript at 74). Access presented a serious problem for the workers. Edelman did not remember if B2 was painted. Edelman stated that if there was a lead problem in the building, he would call a lead remediation company. He thinks that such companies came two or three times while he was manager. He does not remember if lead in B2 was remediated. Edelman alleges that J & M had no connection to the building until October 2004, and that it never received orders to abate lead from HPD or any other party, including the prior owners or managers.

With respect to repairs, Peralta said that the apartment had been painted and a window frame repaired or replaced. Defendants produce work orders which show over a dozen instances of work in B2 starting in September 2005 (defendants' exhibit I). Some of the work orders refer to painting and plastering. Whether any of the work orders concern lead paint remediation is not indicated.

With respect to how J & M could have received notice of lead paint in B2, plaintiffs attach copies of three complaints that Peralta made to HPD which indicate that they were sent to Edelman (plaintiff's exhibit 1). The complaint dated September 26, 2005 shows that Peralta complained that there were six defects in the apartment, including chipping, peeling, and falling [*3]paint. Attached to the list of complaints is the HPD document showing that lead was found on the window frame on August 11, 2005. The November 22, 2006 complaint lists four defects, including falling paint. The February 16, 2006 complaint lists six defects, one of which is that the walls need work and have lead.

When Peralta moved into the building in 1987, his uncle Julio was the building superintendent. Julio was replaced by another uncle named Carlos who, in 2003 or 2004, was replaced by a man called Rafael, who was superintendent between 2003 and 2006, approximately. Peralta alleges that his uncles knew about the peeling paint and knew that plaintiff was living in B2. Edelman, on the other hand, stated that the superintendent during J & M's tenure, from October 2004 to September 17, 2008, was a man named Ali Siad. Edelman stated that tenants complained about peeling paint and their complaints were taken care of, but they did not complain about lead paint.

The first cause of action in the complaint is based on the violation of various parts of the Multiple Dwelling Law, Public Health Law, Administrative Code of the City of New York, and the Rules of the City of New York. The second cause of action is based on negligence, failure to warn, failure to repair promptly, and failure to abate. The third cause of action is on behalf of the father for loss of his son's companionship.

The pleadings allege exposure to lead through August 2005. The pleadings do not contain the allegations made in plaintiff's opposition to defendants' motion, that plaintiff was exposed to lead dust as a result of the repairs performed after August 2005. Those allegations are not considered since they are not in the pleadings.

Defendants move for summary judgment for these reasons: 1) they took over the management of the property after the child was exposed to lead paint; 2) they had no actual or constructive notice of lead paint; 3) there was no hazardous condition in the apartment after they took over management; 4) plaintiff did not have an elevated blood BLL after defendants took over management; 5) any lead poisoning suffered by plaintiff was not caused by conditions in the apartment; and 6) there is no basis for individual claims against Edelman.

Discussion

The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (id.; Torres v Indus. Container, 305 AD2d 136, 136 [1st Dept 2003]). Where the proponent of the motion makes the required prima facie showing, the party opposing the motion averts an award of summary judgment by demonstrating the existence of a factual issue requiring a trial of the action (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986] Pakeman v Karekezia, 98 AD3d 840, 841 [1st Dept 2012]).

To warrant summary judgment, a defendant must establish that the plaintiff's "cause of action . . . has no merit" (CPLR § 3212 [b]). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability in the pleadings (Kuri v Bhattacharya, 44 AD3d 718, 718 [2d Dept 2007]). A defendant must affirmatively demonstrate the merits of its defense (Corrigan v Spring Lake Bldg. Corp., 23 AD3d 604, 605 [2d Dept 2005]). Finally, a motion for summary judgment is determined on the [*4]version of facts most favorable to the party opposing the motion (Valderrama v New York City Tr. Auth., 18 AD3d 251, 253 [1st Dept 2005]).

Local Law 1, a section of the Housing Maintenance Code for the City of New York,

places the duty of abating lead paint on the owner of a multiple dwelling (former Administrative Code of City of NY [Admin. Code] § 27-2013 [h], now Admin. Code § § 27-2056.1 - 27-2056.18 [hereinafter Local Law 1] Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 641-642 [1996] Martinez v Levy, 33 Misc 3d 1222[A], 2011 NY Slip Op 52079[U], *2 [Sup Ct, Queens County 2011]). The law establishes a rebuttable presumption that in any multiple dwelling erected prior to January 1, 1960, where a child of applicable age resides, the paint in the apartment is lead-based paint (Admin. Code § 27-2056.5 [a] Juarez, 88 NY2d at 642). Edelman testified that the building was built before 1960.

The applicable age under Local Law 1 is under the age of seven (Admin. Code § 27-2056.18). Plaintiff became seven years old in November 2005. (Later, the Rules of the City of New York, Health Code of the City of New York, changed the applicable age to under six years, as of October 1, 2006 (24 RCNY 173.14)). It is the date of exposure to lead that determines the time of the landlord's liability, not the date that the child was tested or showed the effects of the exposure (Singer v Morris Ave. Equities, 27 Misc 3d 311, 314 [Sup Ct, Bronx County 2010]).

The elements establishing a landlord's liability for lead paint in a New York City building are: 1) the building was constructed before 1960; 2) the landlord had actual and/or constructive notice of the presence of a child under seven years old; 3) the landlord failed to take reasonable measures to alleviate the lead contamination of which it had notice; and 4) the lead paint condition in the apartment was the proximate cause of the alleged injury (Juarez, 88 NY2d 628; Ortiz v Joremi Enters., Inc., 22 Misc 3d 1135[A], 2009 NY Slip Op 50454[U], *1 [Sup Ct, Bronx County 2009] Melo-Perez v 602 W. 146th Assoc., 11 Misc 3d 1089[A], 2006 NY Slip Op 50781[U], *4-5 [Sup Ct, NY County 2006]).

Local Law 1 gives the landlord the right to enter an apartment to remedy a lead hazard

(Juarez, 88 NY2d at 647; Martinez, 2011 NY Slip Op 52079[U], *3). In addition, the lease in this case states that the landlord may enter the apartment at reasonable times in order to make repairs or inspections (defendants' exhibit M). The landlord is deemed to have constructive notice of a lead paint hazard in an apartment that the landlord actually knows is occupied by a child of applicable age (Juarez, 88 NY2d at 647; Jiminez v City of New York, 7 AD3d 268, 269 [1st Dept 2004]).

In support of their motion, defendants produce an expert's affidavit. Defendants' expert has a bachelor of science degree in environmental health sciences, a masters of science in environmental/occupational health sciences, and a doctorate in public health with a specialty in Environmental Sciences. He serves on the New York City Lead Poisoning Prevention Technical Advisory Committee, has been a lead poison consultant to the New York City Department of Health, the New York City Department of Health and Mental Hygiene (DOHMH), and other health departments, and he co-founded the National Lead Abatement Council.

The expert states the following in his affidavit. He examined the blood test results, the medical records, DOHMH records, the infant's passport, HPD records, leases, and deposition transcripts. He notes that HPD tested the apartment using an X-ray fluorescence (XRF) lead-based paint analyzer. The surface on which 1.0 mg/cm2 of lead was found was not subjected to a [*5]lead hazard risk assessment. Since a reading of 1.0 indicates a default inconclusive lead reading, HPD should have obtained a chip sample of the paint for a conclusive laboratory determination of the lead status, as per the XRF manufacturer's user guide and the guidelines of the Environmental Protection Agency. Testing deteriorated paint chips from the apartment would have determined if there was actually a lead-based paint hazard in the form of bio-accessible lead. This was not done.

The expert states that the XRF tester used by HPD tends to increase a low lead level up to a default 1.0 and does not tend to decrease a higher lead level down to 1.0. The expert opines that the one lead-based paint reading provides no basis in regulation or toxicology exposure assessment for the issuance of a lead-based paint hazard. If a sample of paint had been tested in the laboratory, more likely than not it would have tested negative. The one and only finding on the window frame, and that at a very low level, suggests the absence of lead-based paint in the apartment.

The expert states that, as children become older, elevated BLLs are due to sources other than household lead-based paint. Plaintiff's lead profile shows that there was other exposure. The child visited the Dominican Republic four times between July 2003 and August 2005 and his mother testified that they spent summers there. A DOHMH study determined that children most affected by lead poisoning are those who travel to the Dominican Republic, among other countries.

The expert concludes that: 1) HPD's inspection in August 2005 provided no support for the agency's issuance of a lead-based paint determination or lead-based paint hazard determination; 2) the 1.0 reading more likely than not would have tested negative had a sample of the paint been tested in the laboratory; 3) the window frame that tested positive was more likely than not free of lead paint; 4) the sole finding of the low 1.0, a default inconclusive value, indicates a lead-based paint free apartment; 5) the child's BLL elevations persisted before his residence in the apartment and beyond the age range that DOHMH considers to be a result of lead exposure in the home; 6) the BLL profile strongly suggests that he was exposed to lead in areas other than his residence; and 7) the child's BLL profile is not associated with conditions in the apartment during the time that J & M was manager.

The expert fails to show that there was no lead in the apartment or that the amount of lead was too small to cause harm. No explanation is proffered of the connection between the plaintiff's BLL and the amount of lead in the apartment. For example, the expert does not propound upon his statement that, as children become older, elevated BLLs are due to sources other than household lead-based paint. The one study that is cited, by the DOHMH, does not prove that plaintiff was not exposed to lead in the apartment. No other evidence or studies are cited and the terms "age range," "bio-accessible," and "toxicology exposure" are not explained. Defendants' expert states that the 1.0 reading "more likely than not" indicates that there was no lead in the apartment. Speculative and conclusory statements cannot support a summary judgment award.

" Lead-based paint'" is defined as paint containing 1.0 milligrams of lead per square centimeter or greater, as determined by laboratory analysis or by X-ray fluorescence testing (Admin. Code § 27-2056.2 [7]). " Lead-based paint hazard' shall mean any condition in a dwelling . . . that causes exposure to lead from lead-contaminated dust, from lead-based paint [*6]that is peeling . . . that would result in adverse human health effects" (id., [6]). According to Peralta, the paint on the windows was peeling. Thus, according to Local Law 1, the lead paint amount of 1.0 mg/cm2 of is a hazard.

As for plaintiff's BLLs, the highest, 11 ug/dl, occurred in October 2002. In April 2003, the BLL was 6 ug/dl. Upon the next reading, in August 2005, the BLL was 9 ug/dl. Thereafter, it steadily declined. Whether the increase from April 2003 to August 2005 was in any measure due to exposure in the apartment during plaintiff's residence while J & M was manager is a question for the factfinder.

The New York City Health Code defines "lead poisoning" as a BLL of 10 micrograms per deciliter or higher (24 RCNY 11.03 [a]). Under Department of Health regulations and the Public Health Law, an elevated blood level is a blood lead concentration equal to or greater than 10 micrograms per deciliter of whole blood (10 NYCRR § 67—1.1 [e] Public Health Law § 1370 [6]). Only once, in October 2002, did plaintiff have a BLL higher than 10. However, no evidence is presented for the court to be able state as a matter of law that a BLL of less than 10 ug/dl is non-actionable or non-injurious to children (see Peri v City of New York, 8 Misc 3d 369, 379 [Sup Ct, Bronx County 2005], affd 44 AD3d 526 [1st Dept 2007], affd 11 NY3d 756 [2008] see also Dominguez v Gil Small Realty Corp., 2011 WL 1821690, 2011 NY Misc LEXIS 2140, 2011 NY Slip Op 31194[U], *11 [Sup Ct, NY County 2011] Singer, 27 Misc 3d at 313; Rhys v Rossi, 2009 WL 2980510, 2009 NY Misc LEXIS 3613, 2009 NY Slip Op 32056[U], *5-*6 [Sup Ct, Queens County 2009]). An allegation of injury due to lead exposure is actionable, even if the exposure does not amount to lead poisoning (Peri, 8 Misc 3d at 379; Dominguez, 2011 NY Slip Op 31194[U], *11). Low levels of lead paint poisoning can injure a child's health (Pelaez v Seide, 2 NY3d 186, 197 [2004] Sharpe v City of New York, 25 Misc 3d 1242[A], 2009 NY Slip Op 52548[U], *2 [Sup Ct, Kings County 2009]). Therefore, "[w]hether there is an accepted medical theory on which blood lead levels of less than 10 ug/dl may be attributed to injury is a matter best addressed at the appropriate juncture in this case, and not on the present motion" (Peri, 8 Misc 3d at 379).

Also, summary judgment cannot be granted because J & M does not establish that it lacked actual or constructive notice of a child under the age of seven residing in the apartment. Nor does J & M establish that it did not know or could not have known that there was lead paint in the apartment. There is no point at which J & M clearly states what it did not know and could not have known. The work orders show that work was done in the apartment in February 2005, before it was tested for lead and during a time when peeling paint was allegedly present (defendants' exhibit I). It is true that the attached leases for B2 do not list any family composition (defendants' exhibit M). However, the leases do not include a space where plaintiff's family should have, but failed to, list resident children and their ages. The fact that children are not listed cannot be regarded as a communication to defendants that there were no children in the apartment. Also, defendants do not state that the leases are the only records that they found in which children's residence could have been noted. Edelman testified that the tenants often did not respond to surveys asking about the presence of children, but he did not make that statement specific to B2.

Allegedly, Peralta's uncles/plaintiff's great uncles, who were superintendents, knew that plaintiff lived in B2. The knowledge that a superintendent has that a child of applicable age is [*7]living in an apartment may be imputable to the landlord (Ibert v Tuscan Assoc., 37 AD3d 194, 195-196 [1st Dept 2007]). Whether an uncle was superintendent when J & M became manager of the building and whether his knowledge may be imputed to J & M are questions of fact.

A triable issue also exists with respect to whether J & M, once it had notice of the lead paint hazard, took reasonable measures to remedy the hazard (see Rivas v Danza, 68 AD3d 743, 745 [2d Dept 2009] Ibert, 37 AD3d at 196]). Although Edelman did not remember remediation of the lead paint, defendants claim that the work orders show that they dealt reasonably with the lead in the apartment, once they became aware of it. Some of the work orders are not legible and in regard to those that can be read, although they may have addressed the lead paint problem, that is not apparent from the orders themselves. The question of whether defendants acted reasonably once they had notice is an issue of fact.

With respect to the claim against Edelman in his individual capacity, a corporate officer is not liable for the negligence of the corporation merely by virtue of said employee's relationship to the corporation (Felder v R & K Realty, 295 AD2d 560, 561 [2d Dept 2002]). A claim against a corporate officer must be dismissed absent a showing that said employee acted in anything other than his corporate capacity or absent a showing that said officer committed individual and separate tortious acts, apart from any committed by the corporation (Espinosa v Rand, 24 AD3d 102, 102 [1st Dept 2005] Rodriguez v 1414—1422 Ogden Ave. Realty Corp., 304 AD2d 400, 401 [1st Dept 2003]). Nothing is alleged that indicates that Edelman acted other than as an officer of J & M or that he engaged in any individual tortious conduct. The claims against Edelman cannot be sustained.

Conclusion

In view of the above, it is

ORDERED that the motion for summary judgment by defendants J & M Realty Services Corp. and Jerry Edelman is granted to the extent that Jerry Edelman is dismissed from this action and the claims are severed and dismissed as against said defendant; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly in favor of said defendant, and it is further

ORDERED that the motion is otherwise denied.

.

Dated: April 24, 2014

ENTER:

______________________

J.S.C.