Friday, April 15, 2016

State High Court: NYC Landlords' Obligation To Remove Lead-Based Paint In Dwellings Where Kids Under 6-Years Old Reside Not Applicable To Babysitting-Grandma's Apartment Where Child Spent 50 Hours/Week

In The Bronx, New York, the New York Law Journal reports:
  • Although a child spent about 50 hours a week in her grandmother's Bronx apartment during the first year of her life, she did not "reside" in the unit for purposes of New York City's lead paint abatement law, the state Court of Appeals decided.

    The court dismissed a negligence action filed on the girl's behalf, finding that the building's owner did not owe her a duty to abate hazardous lead conditions under Local Law 1 of 2004 of the city's Administrative Code, or that its failure to do so caused injury.

    The 6-1 ruling [] in Yaniveth R. v. LTD Realty Company, 35, had both the majority and the dissenter leafing through dictionaries and case law for definitions of "residence" and "domicile" for guidance on the Yaniveth R's frequent presence in Victoria Collazo's home. The girl returned to her parents in the evenings when they got home from work, according to court papers.

    Under the law in effect during 1997, the first year of Yaniveth's life, owners of multiple dwellings were obligated to remove or cover lead-based paints in all units in which children age 6 or under "reside" [New York City Administrative Code §27-2013(h)(1)].

    The lead abatement law was amended as Local Law 1 of 2004. The law, through the 2004 revision and later amendments, retains the qualifier that lead abatement must be performed in units where children ages 6 and under "reside."

    In January 1998, tests on the 1-year-old Yaniveth revealed an elevated lead level in her blood that the New York City Department of Health traced to hazardous paint conditions in her grandmother's apartment. The subsequent negligence action alleges that Yaniveth, who is now 19, suffers from brain damage and cognitive deficits because of her exposure to lead.

    The Court of Appeals said the girl did not live with her grandmother, nor had her parents intended her to do so.

    "Yaniveth visited her grandmother's apartment during the day solely for the purpose of child care, while her parents were at work," Judge Eugene Pigott Jr. wrote for the majority. "Although a person may reside at more than one location, spending 50 hours per week in an apartment with a non-custodial caregiver is insufficient to impose liability on a landlord under Local Law 1."

    Pigott said the court's ruling does not foreclose the possibility that a person could have multiple residences under the meaning of the law, but said Yaniveth's circumstances was not one of those cases.

    "The question of whether a person 'reside[s]' in a given location is a fact-driven inquiry that depends on the totality of the circumstances," he said. "Although there is no question of fact in this case that Yaniveth did not reside in her grandmother's apartment, there are a number of situations in which a child may reside in more than one apartment, such as in a joint custody situation or other shared living arrangement."

    Chief Judge Janet DiFiore and Judges Jenny Rivera, Sheila Abdus-Salaam, Leslie Stein and Michael Garcia were also in the majority.

    The dissenter, Judge Eugene Fahey, said the court is obligated to take into account the purpose behind the lead abatement law.

    "The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning," he wrote. "The will of a legislative body is discernable from its diction … and the use of the word 'reside' in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location."

    Fahey, citing Matter of Newcomb, 192 NY 238 (1908), said state case law has long recognized that a person may have only one domicile, but could reside in more than one location.
Source: Judges Find No Duty to Abate Lead in Grandmother's Unit (may require paid subscription; if no subscription, GO HERE, then click the appropriate link for the story).

For the ruling of the New York Court of Appeals, see Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550 (N.Y. April 5, 2016).

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