4 evidence rice hb lead-conf
DESCRIPTION
HB Litigation Conferences Lead Litigation 2013TRANSCRIPT
Lead Litigation Conference 2013
November 14-15, 2013
Evidence
The Speakers
Brian S. BrownSaul E. Kerpelman & Associates P.A.
Steven RiceHarris Beach PLLC
Judge Joseph Murphy (ret)Silverman Thompson Slutkin White LLC
November 14, 2013Presented to HB Lead Litigation Conference
Steven J. RicePartnerHarris Beach PLLC100 Wall StreetNew York, NY 10005
New York Lead Paint Exposure Evidentiary Issues
New York Lead Paint Exposure Evidentiary Issues
LIABILITY
NEW YORK CITY
Pre-2004 Matters: Juarez v. Wavecrest Mgmt. Team
Court of Appeals – July 2, 1996 88 N.Y.2d 628; 672 NE 2d 135; 649 N.Y.S.2d
115 Interpreted NYC Administrative Code §
173.13 and Local Law 1 of 1982Therefore – Applied Retroactively
Pre-2004 Matters: Juarez - Continued
Liability of Landlord - if - 1. Actual or Constructive Notice of Hazardous Lead
Condition (Constructive Notice established By Right of Entry for Inspection and Repair).
2. Notice by Landlord of Presence of a Child under Age 7 prior to date of Order to
Abate.
Local Law 1 of 2004
NEW YORK CITY
LOCAL LAW 1 OF 2004
Local Law 1 of 2004
Local Law 1 of 2004 is also known as the Childhood Lead Prevention Act of 2003.
Local Law 1 of 2004 replaces Local Law 38 of 1999 and Local Law 1 of 1982.
Local Law 1 of 2004 became effective August 2, 2004.
Local Law 1 of 2004
Prevention v. Abatement.
Proper v. Improper Abatement.
Owners Responsibilities
Remediate Lead Hazards. Notify and Investigate. Use Safe Work Practices. Make Apartments Lead Safe on Turnover.
Lead Hazards
Lead Hazards include any condition that cause exposure to lead contaminated dust from:◦ Peeling lead based paint.◦ Deteriorated sub-surfaces.◦ Friction Surfaces.◦ Impact Surfaces.◦ Chewable Services.
Remediate Lead Hazards
Presumption “All-pre-1060 buildings contain lead paint”.
Owners must prevent the reasonably foreseeable occurrence of lead hazards and remediate them, and the underlying defects that may cause lead hazards, using safe work practices.
Notify And Investigate
Notice◦ Must send notice between January 1st and January
16th inquiring as to the presence of children age 7 and under.
◦ Tenant must respond by February 15th .◦ If tenant does not respond, owner has duty to
investigate presence of child between February 16th and March 1st.
◦ If child is present, owner must determine whether any lead hazards exist and advise the tenant of the hazards of lead paint and the results of their investigation.
Notify And Investigate
WHERE OWNER FAILS TO INSPECT AS REQUIRED –
CONSTRUCTIVE NOTICE OF LEAD PAINT IS ESTABLISHED.
Investigate
Must investigate presence of lead hazards in all pre-1960 and post-1960 to pre-1978 buildings where children under the age of 7 reside and the owner knows lead hazards exist.
Investigation must be conducted annually, or more often if:◦ Owner is aware of a condition that may cause
lead hazard.◦ Tenant complains about such a condition [owner
must inspect within 10 days].
At lease end or renewal:◦ Must again inquire into whether a child under the
age of 7 will reside in the apartment.◦ Lease must specify owner’s responsibilities.◦ Landlord must provide copy of lead paint
brochure.
Investigate
Correcting Lead Hazards
Owner must correct lead hazards:◦ Must use workers trained in lead hazards.◦ Must use third party for clearance dust test.◦ Must provide clearance dust test results to tenant.◦ Must correct any violations within 21 days.
Safe work practices and instruction are outlined at: www.nmic.org/nyccelp/govt.htm
Presumption May Be Rebutted Affidavit by Owner asserting:
1. Dust wipe testing is negative for lead.2. Substantial renovation of property prior to
violation.
SPECIFIC PROOF MUST BE INCLUDED
New York City Health Code
Section 173.13 Prohibitions and Abatement Orders
Section 173.14 Standards for Abatement and Renovation
Multiple Dwelling Law
MULTIPLE DWELLING LAW § 78Non-delegable Duty by Landlord to
RepairApplies to Cities with Greater
than 325,000 Population.
MULTIPLE RESIDENCE LAW § 174Applies to Populations Below 325,000
NEW YORK STATE
OUTSIDE OF NYCAND
NON-MULTIPLE DWELLINGS
New York Lead Paint Exposure Evidentiary Issues
New York Lead Paint Exposure Evidentiary Issues
CHAPMAN v. SILBERSTOVER v. ROBILOTTO
97 N.Y.2d 9760 N.E. 2d 329734 N.Y.S.2d 541
NY Court of AppealsNovember 15, 2001
NY Statewide Liability Standardand for Non-Multiple Dwellings
Chapman Test of Liability of Landlord1. Landlord Retained Right of Re-entry to
LeasedPremises and Assumed Duty to Repair.
2. Knew Apartment was constructed before Lead Paint Ban.
3. Aware of Peeling Paint.4. Knew Hazards of Lead Exposure to Young
Children.5. Knew That a Young Child Lived at Premises.
CAUSATIONOR
THE SEARCH FOR ALTERNATIVE CAUSATION
New York Lead Paint Exposure Evidentiary Issues
MUST BE DEEMED AUTHORITATIVE AND RELIED UPON BY MEDICAL EXPERTS
Lead Paint Studies
STUDIES “CONTROL FOR” CONFOUNDERS.
WHAT DOES THIS MEAN?
EFFECT ON RELIABILITY OF STUDIES.
Confounding Factors
1. Pediatrician2. Pediatric Neurologist3. Neuropsychologist4. Hematologist / Toxicologist
Experts
1. Unsettled as to whether Neuropsychologist PhD can testify to causation.
2. Discretionary with the Court on a case by case basis.
Case Law
Other Issues
Sibling and Parent Records
Social Services Records
MUNIZ v. PREFERRED
Appellate Division 1st Dept.June 28, 1993
189 A.D.2d 738; 592 N.Y.S.2d 7341. Privilege as to sibling medical records
could not be waived.2. Guardian by bringing derivative suit did not
place mental or physical condition in controversy.
ANDON v. 330 MOTT STREET ASSOCIATES
Court of AppealsMay 11, 2000
94 N.Y.2d 740; 731 N.E.2d 589; 709 N.Y.S.2d 873
1. Discovery Determinations are Discretionary.
2. Case by Case Evaluation.3. Balance Competing Interests.4. Need for Comprehensive/Specific Expert
Affidavit to Support Need.
Social Services Records: Allen v. Ciannamea
Appellate Division, Third DepartmentOctober 21, 2010
77 A.D.3d 1162; 909 N.Y.S.2d 571 Court must distinguish between Privileged
and Non-Privileged Records Maintained by Department of Social Services.
Allen – Continued
Distinguish Between Social Services Law § 422 and 372 § 422 Prohibits Disclosure except to
those persons and groups enumerated in the Statute.
Allen – Continued
Information gathered under § 372 may be disclosed and is not confidential simply because it is kept or produced by Child Protective Services.
Rehabilitative and Preventive Services, as well as the names and addresses of Foster Parents may be disclosed.
Thank You
Steven J. RiceHarris Beach PLLC
100 Wall StreetNew York, New York 10005
Tel. 212-313-5453Fax. 212-687-0659
Questions
Honorable Joseph Murphy (Ret.) Silverman Thompson Slutkin White LLC 410.385.2225 [email protected]
Brian Brown Saul E. Kerpelman & Associates, P.A 410.547.0202 [email protected]
Steven Rice Harris Beach PLLC 212.313.5453 [email protected]
Speaker Contact Info