D.V. v. 997 Hart St., LLC

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D.V. v 997 Hart St., LLC 2024 NY Slip Op 33166(U) September 10, 2024 Supreme Court, Kings County Docket Number: Index No. 526413/2019 Judge: Kerry J. Ward Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

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At an IAS Term, Part 9 of the Supreme Comt of the State of New York; held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 101h day ofSeptember, 2024.

PRESENT:

HON. KERRY J. WARD, Justice. ---· --------------------. ------------· ----. ------------· .··------------. X

D.V., an Infant by his Mother and Natural Guardian, SOLANGEL BAUTISTA, and SOLANGEL BAUTISTA, Individually,

Plaintiffs, -against.,. Index No.: 526413/2019

Mot. Seq. No. 4 ·997 HART STREET, LLC;

Defendant ----- .---. ------------. ------- .- . -- .------ .. -- .--------------. ----- .--X

The following c-filed papers read he,·ein: NYSCEF Doc Nos.:

Notice of Motion/Order to Show Cause/ PetitionJCrbss Motion m1d Affidavits (Affinnations) Annexed._ _ _ _ _ _ _ _ _ __ 42-64 Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ _ _ __ 69 71-76 Affidavits/Affirmations in Reply _ _ _ _ _ _ _ _ _ __ 78-83 Plaintiffs Memorandum of Law_ _ _ _ _ _ _ _ _ __ 65 ··oefendant's Memorandum of Law _ _ _ _ _ _ _ _ _ __ 70

Upon the fotegoing papers, in this action by the infant plaintiff D.V., 1 brought on

his behalf by his mother and natural guardian, Sol angel Bautista (plaintiff), and by plaintiff,

individually, .against defendant 997 Hart Stre.et, LLC (defendant), to recover damages for

it1j¹.1ries sustained due. to D.V.'s exposµre arid ingestion of lead~based paint, plaintiffs

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building~; (NYSCEF Doc No. 47, plaintiff's affidavit). Plaintiff farther asserted thatGarcia

"came to the apartmeneto look at a.water lea}( ~otning from the ceiling, and~ water leak in

the bathroom" (id.).

Defendant argues that while the lease gave it a right of entry, there is no evidence

·-that it had the ahility to.enter plaintifi:"s.apartment by a key. Defendant:notes_ that Moloney

testified that she did not remember if she had a key to plaintiffs' apartinent Qr if the prior

landlord gave her keys_ to plaintiffs' apartment (NYSCEF Doc No, 49; Mofohey's dep tr at

79, li11e·s 17 .;24). Defendant al-so assorts that nothing fri plaintitrs deposition testimony or

affidavit indicates that Garcia let herself into plaint1 ffs' apartment.

Defendanf s argument is unavailing. There is no affirmative testimony by defendant

that it did not have a key to plaintiffs' apartment. Moloney merely testified that ~he did not

remember if defendant rctainedkeys to the apartment (id. at 79; line 20), Moloney admitted

that the lease·_ required the tenant to provid·e keys to the landlord, and that defendant

received keys from the prior landlord· at the closing of the sale of the property (Which

consisted of two apartments) (id. at 80, iines 2-8). Moloney merely claimed that she qid

·rtot recall wiiether the keys to.-p1aintiffs~ apartment were contailled within those keys (id:

at80. lines 2-14). However, Mokm~y.ad111itted that-Oar'ciaand Kenny were ableto enter

plaintiffs' apartment, at the time ihat they observed stamps on the walis that stated; ''lead

paint" (NYSCEF Doc No. 49, Moloney's dep tr at 107, lines 4-16; at 108, lines 7-8).

Moloney also testified that she and the first lead abatement·contractor (w.h:o was not hifed)

saw the lead paint stamps while in plaintiffs apartment, and that th_ere was l)llly luteroo_m

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that had been locked and could not he access·ed (id: at 193, lines 2-7). This shows that

·d.efendant had access· to· the area where: the lead .paint condition ·existed and was_ stmhped.

As to Garcia, Moloney testified that s:he did_ not recall Garcia or her handyman,

Kenny, having any trouble gettinginto the apartment to fix the light fixtures (id: at 187,

lines 8--11 ). Moloney also testified tha,t she did tmt know of any record -of Garcia or Kenny

havingaily problems with respect to putting in_ the light.fixtures,. the window guards,_ or the

smoke detectors (id. at 187, lines 12~ 16) .

.Moloney testified that after she learned ofthe lead paint condition, she sent the July

andA1.1gust2019 letters to pl_aintiffto obtain access to. remediate. it(id:· at 183,..lines 21-24) .

.Moloney also testified that she asked plaintiffs cousin to assist in obtaining ac9css: to

remediate the leadpaint condition, but did not remember the date on which she niade this

reque·st(id at 184, lines 17-25; at 186, lines 7-l l). Moloney additionally testified that she

did not remember how ·1ong she: had ,a problem with. gaining access' t_o the apartrnent or

wheth~r it was more or less than a week (id. at 19 l~ lines 7-14 ). :Moloney did n.ot remember

if she ever knocked on plain ti rr s door to gain access{ld: at 186, lines 12-J 4-). As previously

rioted; Moloney admits that she had -access at the time that sh~ walked thtoµgh the

apartment with the fir.st lead paint remediation. vendor who she did not hire (id. at 194, _lines

3-6).

Moloney never testified that she was deriied access or unable to gain access to the

preinises. There is ·uo affidavit submitted by- Moloney or Garcia, and there is no deposition

testimony by Garcia, which addre:sses access to the·-apartment or defendanf s right ofentry.

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Thus,there is nothing to refute that defendant had the right of entry as expressly provided . . .

in the lease, and the first Chapman.factor is satisfied.

As to the second Chapman factor that defendant knew that the apartment was

constructed at a time before lead--:based interior paint was banned, Moloney and defondant,

as sophisticated real estate investors; must have considered the age of the property when

purchasing it. The certified property card (NYSCEF Doc No. 52) discloses that the

premises were occupied in the 1930s, which is long before 1960, when New York City

banned the·use of lead-based paint oh interior building surfaces (see Juarez, 88 NY2d at

64l). Moreover, defendant does not dispute that it was aware of the age of the premises.

Thus, this second Chapman factor is met.

As to the third Chapman factor~ i.e., that defendant was aware that paint was peeling

on the premises, plaintiff testified, at her deposition, that she told Garcia ''[t]hat the painting

was chipped ·"' - that the paint was chipping and that it needed to be painted, again''

(NYSCEF Doc No. 48, plaintiffs dep tr at 4 7, lines 18~22). Plaintiff also attested, in her

sworn affidavit, that "[o_Jne thne when [she]saw [Garcia] in the building in the beginning

of 2019, [she] complained to her that the paint in the apartment was chipping, that it was

in bad condition, and it was in need of repair, but nothing was ever done'.;,

Plaintiff explained that whenever she noticed the paint chips, she would sweep them

up and throw them away (NYSCEF Doc No. 48, plaintiff's dep tr at 51, lines 1s.:21).

Plaintiff specifically testified that paint chips were "[ a]ll over the place. It was everywhere.

On the door, on the door to the bathroom, on the <ioor to the closet, in the windows, the

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windows of the. kitchen. Everywhere" (id. at 52; lines 20-24). Plahitiff witnessed D.V.

·eating.paint chips a number oftinies_·(ic(; at54_, lines 2~²-1).

Defendant argues that plaintiff has failed to establish that it knew that the apartment

contained defective or peeling paint Moloney, at her deposition, deni"ed that pla'intiff made

,coinplaints about chip.ping paint or made requests for repair _prior to the issuance of the

lead paint viol~tions (NYSCEF Doc No.. 49, Moloney'.$ dep·. tr at 95, lines 3-9.). Moloney

testified, at her deposition, thatshe did, not know the condition of the paint in the- apartment

.in January 20l9 (id. at 198, lines 7-9). Moioney also testified that when she looked at the

areas ::.;tamped-as having lead._paint, she,did not·-rememh¢r if the paint was peeling inthose

areas (id. at 142, lines 22-24) .. Moloney, howcvt!r,. when confronted wHh the DOH's

notation on August 16, '.2019 that work was riot started at the time of its inspection of all

areas cited in the Order to Abate Nuis·ance, as evidenced by. chipping and peeling pa:int,

and asked when it says chi ppiµg arid peeling_ paint re1nained, ·.if fr was.-'~true in fact ... that

there was chipping and _peeling paint inside that apartment," she. responded, ''l suppose so"

(id. at 159; iines 2,-14).

Thus, ·Moloney hm:i conceded that at l_east frmi1 _the time that .the DOH issued the

violations, she was aware pf chipping a_nd pee.ling paint Defendant also never contested

the existence of lead paint violations, as cited ih the Order to Abate- Nuisance, dated July

26, 2019. Moreover, the lead paint violations were evident from the lead paint stamps .in

the apartment, whic;h were--_discov~red by-·.defendani'-~ worl<:_ers and-ofwbichMo ioney was

infonned and then witnessed herself when she walked around the apartment (id at l 93~

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lines 18-21). Thus,the.third Chapmqn .tactor-is-satisfied.from at least the time ofthe Order

toAb.ate Nuisance, w,hich Moloney stated, she personall.y r~c~jved on.Augu·st 1, 201_9.

_As to the; fourth. Chapman factor,i .e.,,_ that defendant knew of the hazards of lead-

based paintto young children, :Moloney adhlitted that as of2"0l 8, she was aware that there

was a lead paint notice that had, to be given to tenants who were moving into an .apart1nent,

and that a lead paint riderhad_to be signed stating that the tenants received t_h(} lead.paint

notice regarding lead p~int and stating 'that they understood what was in the rtotice 6

(NYSCEF Doc No. 49, :Moloney's dep trat 57,_lines 16~25). Moloney further admitted-that

·she k_p.ew th~t. chipping· lead paint was a potential health hazard to small children ifih~y eat

.or ingestthe,paint in some form (id. at 59, lines 4-25; at 60~ lines 2-5; at 66, lines 2-10).

Moloney. testified that the lead paint . disclost1re fonn and the patnphlet that accompanies it

:"indicated the type of harm that-can happeri to a child if he or she ingested. lead and that

"'may.be"·-she read the t;o.rm and pamphlet (id. at 61, lines 2-18}. In addition, when Molo·ney

·was asked at h_er deposition whether she knew from the time that she received the notice of

violation thatthere were lead-based hazards in.the aparti:nent and that theywere dangerous

to children, she. responded ••yes_" (id. at 189, Jines 6'- 10.).-Thu&.,. the fourth Chcqirndn factor

i_s satisfied.

6 Defendant doe·s not claim to have·provid~d-this notic_e.to plaintiff: Plaintiff, in her:affidavit, ~ttests-that at-no time did the prior landlord or defendant·have her·,sign a N·ew York City Lead Paint Notice,which wo_uld have:r~quired that.she notify them wbether a child under the age of seven years resided ih the apartment, or a Window Guard Nqth:;~, Which IAIOuld h,11ve r~quiredthat she-identify whether a child 10 years of age or young_er lived in the apartment (_NVSCEF Doc No. 47). H_owever,-a.t. thetlme that plai"~tiff moved:iri.to the apartment and at the--tirriethat she renewed her lease with def!:!ndant, Lo.cal Law i, which mandates thatthis lead pa.int notice be glven 1 did not apply to two::family homes.

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As to the fifth Chapman factor that defendant knew that a young child lived in the

apartment, plaintiff testified that Moloney came "[aJ number oftimes" to sec the apartment

(NYSCEF Doc No.48, plaintiffs dep tr at 4 l, lines 23-25), Plaintiff, in her sworn affidavit,

also attests that befote defendant purchased the building, Moloney carne in to look at the

apartment, and when she was present in theapartment,b.V., who was then a baby, as well

as her other child, K.V., who was: then three years old, were present (NYSCEF Doc No.

47); Plaintiff further attests that Moloney saw her two children, and also saw the cribs,

highchairs, and baby toys that Were in the apartment (id). ln addition, plaintiff attests that

after defendant purchased the building and before she learned that D.V. had been lead

poisoned, Moloney was in her apartment at least lO to 12 times andthat she was told that

the n~ason for Moloney 's presence was that defendant was getting ready to se:ll the building

and was showing it to prospective buyets, even though defendant had just purchased it

(id.). Plaintiff explained that "[e]ve;ry time [Moloney] came to [her] apartment, [her] two

children, who were three (3) years of age or younger, were present in the apartment" (id.).

Plaintiff asserts that additional notice of a child present in the apartment was

provided by aJune 2019 letter to Moloney from her cousin, Ernesto Hodgson, who, when

writing on behalf of plaintiffs family regarding a lease modification, stated that the

previous landlord had increased the rent when they found out plaintiff was pregnant

(NYSCEF Doc No. 63J. Molortey admitted that she· remembered receiving this letter

(NYSCEF Doc No. 49, Moloney's dep tr -at i20, lines l i ~23). Plaintiff asserts that notice

of a child under six years old can al~o be imputed from defendant's superintendent; Garcia,

wh a. went to the apartrn ent to fix a c<!ili ng leak and a bathroom leak and wou Id tell Mo lon.ey

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about the -frunily's coinplaints regarding the apartment (NYSCEF Doc No. 48, plaintiff's

dep tr at 45, lines 8-2.5-;_ -at 4 7, lines 4-9),

Moloney admitted that she went for a tour of the property, including both

apartments,_prior to defondanf s purchase of it (NYSCEF Doc No. 49, Moloney' s dep tr at

34, Jines U-14), Moloney, howev¢.t. t~stified thai she only briefly walked into the

.apartment prio_r to de.fendan.t's. purchase ofit (id. at 35, lines 2-13). Moloney further

testified that she did not reca:li who. was in the apartment _and did not remember if she

discussed who occupied the apartment -in the Fall of 2018 (id, -at 51, lines 2-20). Moloney

claimed that she- was unpertain as to whether she knew that.there were children liying in

plaintiffs apartin~nt prior to the DOH inspection (NYSCEF Doc No. 70., defendant's

Memorandum of Law at paragraph 28). Moloney stated that she was unable to. say one way

·or the:.other whether she was aware that there, were small children living in the apartment

·-in 20r8 or January 2019 (id. at 113,lines 19-25; at 114, line$ 2~5). Moloney tesHfiecl that

she did not remember if she k,new that there were small children living there (id, at 111,

lines 23~25; at 112, line2).

Moloney _admitted that she was aware ofthe children~s presence by August l; 2019

(id. .at 145, lines 7-1-0). This admisslon was consistent with the fact th<1t defendant.. had

window guards irtstailed to prevent small children from falling out .of the apartment's

wind·ows (id. at 112, lines 8-25). Moloney testified that ·she:saw two small :children in the

apa1-tme11t. when she wcrtt there witl1 the fifat lead-paint remedia,tioh vendor (id. at 177_,. 1

lines I ff-24; at 178, lines 13~22). M.oloney also acknowledged thatthe lead paint violation

stated that there were small children in the apartment (id. at 145, Jines 12~ 17). Thus, the -20

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fifth Chapman factor has been satisfied at least -as of the time that defendant -received" the

.Order to Abate Nuisance.

While triable issues of fact exist as to whether plaintiffs satisfied the. thfrd and fifth

Chapman factors prior to D.V.~s lead po"isoning on June 14, 2"019.(whenhe had an elevated

blood level of 5 ·ug/dL )-, iher.e. can be· .no dispute; that these fa,ctors werf;: satisfied as o.f the

time when the Order to Abate Nui$a:ricie_was issued on J11ly 26~. 2019. Indeed~ as of the date

that defendantreceiv ed the Order to Abate Nuisance~ it had actual notice both that a. child

under the requisite age was .residing in the apartment ·and that the apartment contained

hazardous Ieve.ls of lead (see Juarez, ·-8·8 NY2d at 647;.648; Clatk, 52 AD3d at 640}

Once a landlord _is found to have had the requis_ite notice ofth.e residency ofa: child

under the age of six and that a lead paint hazard exists irt the apartment, the landlord's

liability then turns oh the reasonableness ofits· e.flbrts to ameliorate the ·existing· lead paint

condition (see Juarez, 88 NY2d at 644; Clark;- 52 AD³ d .at 640; lbert v Tuscan.Ass_oc., .Inc.,

37 AD3d 194~. 196 [1st Dept 2007]). ln_ addit_ion, the .plaintiff must deinonstrate that the . .

child's lead poisoning is causally copnected to the lead paint condition in the apartment

(see Jt,arez, 8_8. NY2d at 648) .. Here, there is no- issue- as to the reasonableness of defendant's. abatement efforts

after receiving actual notice of the lead paint condition since it made. none {see Jocelyn C.

v SoundviewApis. Realty, LLC, 154.AD3d.573, 573 [1st D~pt2017]).Defendant-only went

to .the apartn1ent with a lead abatement .contractor which it ·4id not hire. Moloney admitted.

thatHPD h_ad to perfqrm the abatement work becauSeidefendaht "took too long'~ t.0 start it I .

(NYSCEF Doc No. 49, Molonefsdept rat 138; Hnes23-25).

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During the time period after defendant had actual notice, D.V. continued to be

exposed to the lead paint condition and his blood lead level dramatically increased to 10

ug/dL, double the blood lead level that he had on June 14; 2019, as shown by his blood

lead test on September 26, 2019, shortly after HPD performed the remediation work due

to defendant's failure to commence any abatement work (NYSCEF Doc No. 59). Thus,

defendant's failure to timely temediate the lead paint condition resulted in D.V. 's fmiher

exposure to. lead paint (see Galicia v Ramos, 303. AD2d 63 l, 632-633 [2d Dept 2003];

Woods v Alvarez~ 300 AD2d 301, 302 [2d Dept 2002]; Bellany v Siegel, 288 AD2d 411..

412 [2d Dept 2001 ]); The court, therefore, finds that defendant may be held Hable for

D.V.'s injuries sustained after the time thatit; by the Notice to Abate Nuisance, had actual

notice of the lead paint condition in the apartment, tuthe extent that such injuries are shown

to be proximately causedbysuch lead paint condition.

Plaintiffs contend that lead creates an indivisible brain injury, and, as a result,

defendant must be held liable for all injuries caused by D.V. 's lead poisoning, both before

it had· actual notice of the lead paint condition and after it had such actual notice. It has

been held that where the record is devoid of any proof which would render a plaintitrs

injuries "divisible'' and enable the jury to appmiion damages to separate periods of

culpability and provide the jury a nonspeculative basis upon whic;h to make a practical

division of a plaintiffs injuries, a defendant may be held liable for all such injuries, Le'. 1

prenotice and post;.notice periods ofexposure to kad paint, without apportiomnent (see La . .

Fountaine v Franzese, 282 AD2d 935, 918[3d Dept 2001J; Zandre T. v Beulah Church of

God in Christ Jesus, Inc., 24 Misc 3d 1234[A], 2009 NY Slip Op 51748[UJ, *5 [Sup Ct,

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Kings County 2009]). Here, defendant has not pres·ented any proof which would-render

D..V.'$. injuries ~'divisible" and enable the apportionment of damages with respect to

prenotice and post-notice periodsof exposuret o lead paint. Indeed, D.V. ha⁴ Substantially

higher blood· lead levels post-notice tha_n h¢•had. prenotice. Thus, due to the indiv.isibility

of any .injuries. susfaine_d by D.V. due tb his lead ·paint exp·osure, defendant must be held

responsible for all injuries caused :by lead poisoning itt the apartment (see Tejeda v 116 W

Co_rp.) 293 AD2d 261, 261 [ lstDept20 02], Iv denied 99 NY2d 502 [2002.];La Foimtaine~

282 AD2d at 9J8).

}fowever, as to causation, a plaintiff moving for smnmaryj udgment mustestab lish

"a legally sufficient causal nexus behveen the alleged breach and the claimed damages"

(Chapman, 97 NY2d at 22). Plainti ff has set forth D; V.' s cJaimed injuries in their bill of

p_atticulars (NYSCEF Doc No. 46). Piaintiff has submitted th~ report .of Daniel Adler,

M.D., Which is·:affirmed pursuant to CJ.>LR 210t>...(NYSCEF Do.c No. 50).·Dr'. Adler, who

specializes in pediatric neurology, saw D.V. in. a pediatric neurologic al consultation on

January 12, 2023. Dr. Adler's clinical impressions were lead poisoning, low muscle tone

with fine and gross motor incoordination, dysarthria {a speech disorder caused by inuscle

weakness)~ and . cognitive impairment. Dr. Adler sets. forth that D.V. has low tone and .is

poorly coordinated, and .that his speech ·is poorly artic.ulated, Dr. Adler States that these

developmental variations are highly correlated with learnihg chatlenges in the future. Dr.

_Adll;!r further ~tates that wnile lead poisoning does not cause these neurodevelopmental

d_isabilitie_s, lead poisonii1g will negatively affect the therapies that children like D.V.

require ih order to inake developmental progress. Dr. Adler opines,_ to a reasonable degree

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of medical certainty, that if D.V. had not been lead poisoned, his overall level ofintellectual

and future academic functioning would have been higher. Dr. Adler further opines, to a

reasonable degree of medical certainty, that D. V. 's exposure to lead paint in the apartment

qwned by defendant was the substantive cause ofD.V.'s cognitive and intellectual deficits.

Dr. Adler states that hereviewed therecords of the New York City Department of

Health and Menta1 Hygiene; the records of the Wycoff Heights Medical Center, the records.

of Allergy and Asthma Care of Brooklyn, the recordsofN ew York Presbyterian ffospital,.

the laboratory test results from LabCorp, and the records of Ridgewood Pediatrics. De

Adler also states that he reviewed the expert teport ofVicki Sudhalter, Ph.D., dated January

⁷, 2023. Dr. Adler notes that Dr. Vicki Sudhalter, who is a psychologist, performed a

neuropsychological evaluation on D.V., reviewed D.V.'s medical records, and

administered numerous tests on D.V. He points out that Dr. Sudhalter observed that D.V.

had an IQ.in the average range with asignificantd ifference between·verbalcomprehension

and non-language composites such as visuospatial and working memory, and thatD.V. had

a severe articulation and syntax deficit. He notes that it was theimpressio n of Dr. Sudhalter

that lead poisoning had contributed to D.V. 's documented cognitive, social, and behavioral

impairments.

Defendant, in response, states that plaintiffs have not exchanged a copy of Dr.

Sudha1ter's report, but have only provided their expert disclosure~ in which plaintiff's

cou:nsel discusses Dr. Sudhalter's expected testimony and her findings. (NYSCEF Doc No.

76}. This expert disclosure states; in detail; Dr. Sudhalter's evaluation of D.V., and her

findings and conclusions as to D.V.'s intelligence assessment, neuropsychologica.1

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assessm:ent,_sensory-motor functioning, learning a:i1d memory, and executive.functioning,

and it appears to. c_onta.in the contents of Dr. Sudhalte( s report (id.). It specificall y states

that bas_ed upon ccmsidera.ti6n of D.V. 's neurobehavioral and neuropsyc hological deficits,

mcqical history ·and the current medical" literature, Dr. Sudhalter Will opine··that brajn

damage from .lead poisoning has significantly·contributedto documented cognitive, social,

and behavioral impairmen ts (id.).

No affirmed report by Di.·. Sµdhalter has been submitted. Defendan t contencls that

Dr. Adler, irt his t.eport,_ depends and relies upon the findings.and opinions ofDr. Sudhalter

and that this is not a ·prop.er foundation upon which an .expert may base his opinions arid

conclusions. Defondant notes that there is nothing in D.V. 's 111.edical records, \\fhich have

been submit_tecj by plaintiff, whjch show any cognitive injury.sustained by ·o .V. (NYSCEF

Doc No., 51).

D,V. was. exatnined by defendant's .eJ<pert, Walter Molofsky, M.D., a pediatdc

neurolog,ist, on January 4, 2022. Dr. Molofsky~ in his report, :opines that there is no

evidence of any decrement in.function from D;V.'s lead exposure (NYSCEF Doc No .. 73).

D.V. was tested by de.fendant's expert, David M..Masur, Ph.D._, a neuropsyc hologist, on

July 7, 2022. Dr. Masur, in his report, opi_nes- that D.y. demonsttated:·.no evidence for the

presence of arty cognitive. deficit that could be causally related to his history of elevatet:l

lead levels (NYSCEF Doc No. 74).

Jiowever, neither Dr. Molotsky's expert report •nor ·nt-~ Masur's expert report is

-affirmed.-Since both ofthese -reports ar~ un~wom,t hey are not in admissible fonn and do

not constitute competen t evidence.. Therefore; the.y n'it'\-Y nbtbe ..con:sidered in opposition to

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of fact as to plaintiffs' summary judgm ent motion and cannot create a triable issue [1st Dept causation {see CPLR 2106; Ulm l Holdin g Corp. v Antell, 155 AD3d 585, 586

2017]; Mazzola v City ofNew York, 32 AD3d 906,90 7 [2d Dept 2006]). lter's In any event, defendant argues that Dr. Adleri mprop erly relies upon Dr. Sudha report has report, which has not been exchanged. The court notes that since Dr. Sudha lter's is true that an not been submi tted to the court, it cannot be ascertained ifit was sworn . It and therefore affirmed report by a medical expert may not ptopcd y rely on an unswo m, Conce pcion inadmissible, report, to conclude that the plaintiff suffered actual injuries (see [Jst Dept v Walsh, 38 AD3d 317, 318 [1st Dept 2007]; Lora v Calle~ 16 AD3d 359, 360

2005]; Vallejo vBuild ersfor Family Youth, Diocese of Brooklyn, Inc., rs AD3d 741, 742

not base his [2d Dept 2005]). Contrary to defend ant's argument, however, Dr. Adler does sions on his opinion solely on Or. Sudha lter'sre port. Rather~ Dr. Adler bases his concJu

own examination and clinical impressions. ffs Plaintiffs' proofs uffice s to establish prirna facie causation, In partku lar, plainti -based paint, have produced evidence thatth e apartment contained hazard ous levels oflead levels of lead, that D. V. was observ ed ingesting paint chips, that U.V. had elevated blood in 'his expert and that D.V. had lived in the apartment since birth. Furthermore! Dr. Adler, not been affirmation, opines, to a reasonable degree of medic al certainty, that had D.V. would have lead poisoned, his overall level of intellectual and future acade1nic functioning ntive cause been higher,.that.D.V.'s·exposure to lead paint in his apartment was the substa ely affect the of his cognitive and intellectual deficits, and that lead poisoning will negativ EF Doc therapies that D.V. will requjre in order to make developmental progress (NYSC 26

26 of 27 [* 26]

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D.V.' s lead poison ing No. 50). Defen dant, in oppos ition, has submitted no evide nce that ent. was related to any factors other than his exposure to lead in the apartm vits, argues Furthe rmore , while defen dant, witho ut admissible sworn exper t affida / ... / " . ...

lead levels and Dr. that D.V. was not i11juredby his lead poisoning; D.V.' s elevat ed blood injury (see Taylor v Adler 's expert affida vit establ ish that D.V. sustaineci an action able York City Haus. Brook eTow ers LLC, 73 AD3d 535, 536 [l:stD ept20 l0];B ygrav ev New , 60 AD3d 997, 998 Aitth., 65 AD3d 842, 847 [1st Dept 2009]; Kyddv Daa,: ta Realt y Corp. ; Wynn v T.R.LP: [2d Dept 2009] ; Baez v Sugrue, 300 AD2d 519, 521 [2d Dept 2002] oftheexte_nt o~the Redevelopment Assoc., 296 AD2d 176, 184 [3d Dept 2002] ). The issue ····"':-.. , .... :

go to the questi on of il1iuries sustai ned by D.V. as a result of his elevated blood lead levels ; Fo.ster v Alfred S. damages (see Lanza v Delbalso, 217 AD3d 664, 665 [2d Dept 2023] Equities, 2 AD3d Friedman Mgt. Corp., 63 AD3d 446,4 47 [lstDe pt200 9J;.M unoz v Mae!

118, 119 [ 1st Dept 2003]).

Conclusion

for $Uinmary Accordingly, plaint iffs' motion, under motio n seque nce numb er four, (

do:wn foran assess;nent judgm ent on the issue ofliab ility is gnmted. This lllatter shall be set

of dainages.

This consti tutes the decisi on artd order of the court.

ENT ER,

A, l S. C.

27 Hon. Kerry J. Vvard, AJ.S.C.

27 of 27 [* 27]

Footnotes

[1] The child's name has been r~dacted in accordan.ce with 22 NYCRR 202.5 (e) (1) (iii). 1 of 27 [* 1] move, under motion sequence number four, for an order granting them summary judgment on the issue of liability against defendant. Facts and Procedural Background The premises located at 997 Hart Street, Brooklyn, New York, is a two-family house, which was built in the 1930s (NYSCEF Doc No. 52} On June 1, 2018~ plaintiff, who was then pregnant, signed a lease with Nateram Ramkissoon (Ramkissoon), who was, atthattime, the owner and landlord ofthe premises, to rent apartment 2~ which consisted of the second floor ofthe premises (NYSCEF Doc No. 64). Ramkissoon occupied the first floor apartment at that time. Apartment 2 has three hGdrooms, a kitchen, and a bathroom, l)pon signing the lease, plaintiff moved into apartment 2 with her mother, D.V.'s father, artd her son, K:D., who was then two years old. Approximately, three months later, on September 15, 2018, D.V. was born and immediately became an additional resident of the apartment. Approximately two months after D.V. was born, Ramkissoon, by a deed dated December n, 2018, sold the premises to defendant (NYSCEF Doc No. 53). Plaintiff claims that defendant's property manager, Joanna Moloney (Moloney), came "[a] number of times" to see the apartment, and, thercfi:)rc, was aware that a childresided in the apartmeht (NYSCEF Doc No. 48, plaintiffs dep tr at 41) lirte25). After defendant purchased the property I Martha Garcia (Garcia} became the superintendent of the prernises. Garcia would go to the building twice a we.ck to take. out the garbage and clean the property (NYSCEF Doc No. 49, Mo!Qney's dep tr at 48-49). Plaintiff would inake any complaints she and her family had regarding the condition of the 2.

[2] of 27 [* 2] apµrtment . to Garcia, who· would inform Mql,:mey :ab.out these coinplaims . (NYSCEF Doc No. 48, plaintiff,s dep. tr .at 46, lineS22-25~ at.4 7-, lines. l-9) According to plaintiff: the paint in the apartment was in "bad condition,'' and in February or March 2019, two or thtee months after defondantpurchasedthe apa1iment, she complained to Garcia thadhe. paint was chipping in the apartment (ic(. :;it-4_7, li_nes 19;.,22; at 48, _lin_es 4, 18-20). Plaintiff described the size· nfthe paint chips ;;i_s being_ .approximately one-half of an inch {id. at 51, line 10). On June 14, 2019, when D.V. was approximately nine months. cild, a lead test reveaied that he had an elevated- blood lead Ievel 2 of 5 ug/dL 3 On June 26_;- 20..I 9, the New York City Department of l-lealth and Mental." Hygi<;!_ne Healthy l.f omes Pt.ogram/Lead Poisoning Prevention Progratn (the DOH) inspected ihe apartment for lyad-based paint pursuant to section 173.13 (d) (1) of the New York City Health Code. tbeinspectiort report stated that 30 ofthe 62 XRF readings retur11ed positive results for lead-bas.ed-paint hazards (NYSCEF Doc No. '55). According to Moloney, she learned about violations against the property in late Jurie or July 2019 via erriai] from an alert service subscribed to by defendant that alerted defe_ndarit to Violations: -as to missing window _.guar_ds and a missing sinoke detector. 2EffectiveApril i4, 2019, Public Health Law§ 1370 (6) was amended to define an elevated lead level asmeaning "a. biood lead l_evel greater than or equal to five micrograriis of lead pet dei;:i!iter of whci le blood or such i~wer qlood lead Ieve! as may be established by the d epartin erit pursuant to rule or regu latioh. ,; Prior to th at a mend ment, an elevated lead level was defined as ineahing "a blood lead level greatetthan orequal to ten micrograms.of lead per deciliter ofwhcile blood or.such lower bJoo.d lead level. as niay be established by t_he department pursuant to rule or r~gulati1;:m;'! lO;NYCRR 67-1.L(e) similarly,_ a~:amended in 2Di9, provici"es tbat -,;[¢]!evated blood lead le_vel me;al")s a bfood iead com:ehtratjon eql!ai to orgreaterthari. five micrograms perdeciliter-ofwhole lllood." · ;i Ug/dlstands for micrograms of lead per·decili.ter .of whole blood., .3

[3] of 27 [* 3] Moloney sent Garcia and her handyman Kenny to the building. When Garcia and Kenny went to plaintiffs apartment, they observed stamps on the walls that stated, "lead paint'' and. Garcia told Moloney about these' stamps (NYSCEF Doc No. 49, Moloney) s dep tr at 107; lines 4-16; at 108, lirtes 7-8). On July 3, 2019, defendant sent a letter to plaintiff requesting access to the apartment so that they could have a lead abatement company look at the apartment and provide a proposal for the remediation (id. at 123, lines 3-5; at 126, lines 2-4) .. On July 26, 2019; the DOH issued an Order to Abate Nuisance to defendant {NYSCEF Doc No. 56). The Order to Abate Nuisance 1,,vas addressed to defendant and dated July 26, 2019 (id.). The Order to Abate Nuisance stated that a DOH inspection on June 26, 2019 determined that the dwelling unit contained lead-based paint thatwas peeling and/or located on one or more window friction or other surfaces that the DOH had determined to be a lead hazard because of its concentration; condition, location, and/or accessibility to children (id.). The Order to Abate Nuisance furtherstated that the lead- based paint hazard(s) identified in the Violation Report appended to this Order to Abate Nuisance constituted a nuisance pursuant to the Administrative Code of the City of New York § 17-142 (id.); The Ordet to Abate Nuisance directed defendant, pursuant to . . . Administrative Code §§ 17-113; 17-114, and 17-141 through 17-158, and New York City Health Code §§ 3.01, 3.07, 3.09, and 173.13 (d) {l), to remove, correct, and/or otherwise abate the lead-based paint violations noted inthc appended Violation R,eport in ac:cordance with the procedures prescribed in New York City Health Code § J 73,14 and to complete all abatement work within five days of receipt of thiS Order (id.). 4

[4] of 27 [* 4] Defendant didnot complete the abatement work within five days ofteceipt of the Order to Abate Nuisance. Moloney asserts that she was personally served with the Order to Abate N1.1isance on August l, 2019. By a letter dated .August I, 2019, Moloney requested that plaintiff contact her or Garcia immediately in order to schedule several access d:ites, both for an inspection and to complete the repairs necessary to remove the lead paint (NYSCEF Doc No. 49, August l_, 2019 letter). Moloney did not take immediate action to have the abatement work performed. Mo Ion ey -did not remember if she started looking for a_ con tractor dt1ri ng August orSeptember2019 (NYSCEF DocNo. 49, Moloney's dep tr a_t 133, lines 12-16). Moloney obtained access to the apartment and walked through it with a lead-paint remediation contractor, but did not hire him because his proposal ·'came in a littlCbit high" (id. at 134, lines 15- I6). An August 9, 2019 letter to defendant(NYSCEF Doc No. 58)stated that review of records of the DOH Healthy Hornes Program indicated that defendant wasservecl with the Order of the Commissioner (if Health to abate lead-based paint and that pursuant to New York City Health Code § I 73'14 (C) (1) (A), defendant had not filed with the Lead Poisoning Prevention Program notification of starting lead abatement. This letter further provided that notification must be filed no less than 24 hours and no more than 96 hours before starting c1,bat~111ent, using the fori11 enclosed with the Order; and it enclosed another form for defendant's convenience _(id.). An August 21~ 2019 linal notice (NYSCEF Doc No; 59) was sent to defcndartt, which stated that an inspection by theDOH,sJ-Iealthy Homes Program and a review of its 5.

[5] of 27 [* 5] records indicated that the lead paint hazards cited at the premises had not been abated or contested. It provided that in accordance with New York City Health Code § 173. lJ (d) ( 4), the DOH was requesting the Department of Housing Preservation artd Development (HPD) to execute the Order. It set forth that the failure to comply with this OrderwUl result inplacement of a lien and may subject defendant to civil or criminal penalties. The DOH scheduled the work itself~ which was performed by HPD, and billed to defendant (NYSCEF Doc No. 49, Moloney's dep tr at 138, lines 3-25; at 139. line 2). On or about September 10, 2019 1 Moloney eventually hired BNH Lead Examiner;4 a lead paint abatement contractor, to perform the abatement work {NYSCEF Doc No. 60; NYSCEF Doc No. 49, Moloney' s dep tr at l 34, lines 4-5; at 1371 lines I 6-22). However, by the time thatBNH Lead Examiner came to perform the work in plaintiffs' apartment on September 11, 2019 1 over six weeks from the issuance of the July 26, 2019 Order to Abate Nuisance, Moloney learned that the work had already been performed by HPD because defendanthad taken too l01tgto schedule the work (NYSCEF Doc No. 49,Moloney's dep tr at 138, line 25; at 139, line 2). lh addition to not timely abating the hazardous lead condition in accordance with the Order to Abate Nuisance, defendant did not offer to relocate plaintiff and her family, including D.V. As a result, D.V. remained in the apartment, which continued to contain lead, for over six more weeks while t}le lead paint hazard was not ameliorated ~nd during 4 The Notification of Commencement of Lead Abatement/Rem ediatlon is dated .Septe mb¢r 10, 2019 and actually· lists Certified Environm1:ntal as the EPA Contrai:tcir, BMH Lead Examiner as the dust testing company, and .Enviro- Probera.s the Laboratory for Sample Analysis (NYSCEF Doc No. 5b). 6

[6] of 27 [* 6] which time the lead abatement work was actively being performed by HPD, resulting in D.V.'s further exposure to the lead condition in the apartment. D.V.'s blood lead level incteased dra111atically when defendant failed to remediate the lead-based hazards within five days from July 26, 2019 as required by the Order to Abate .Nuisance. A September 26, 2019 lead test revealed that D .V. had an increased blood lead level of lO ug/dL, which was double the mnount found on June 14, 2019 (NYSCEF Doc, No. 54, DOH records; NYSCEF Doc No. 51, D.V.'s medical records). After the DOH had abated the dangerous lead paint condition, a November 4,2019 lead test recorded that D.V.'s blood lead level decreased to 8ug/dL, which was stillelevated (NYSCEF Doc No. 51, D.V. 'smedical records). A May 28,2020 lead testrevealed that D. V.'s blood leadJevel haddecreased to 4 ug/dL (id.). A Septe111ber29, 2021 lead test showed that D.V.'s blood lead level was 2 ug/dL, and an October 24, 2022 lead test showed that D.V. 's blood lead level was only I ug/dL (id.). At some point in 2019, defendantlisted the building for sale. By a letter dated December 13, 2019 (NYSCEF Doc No. 49, December 13, 2019 letter), Moloney informed the DOH that she had taken steps to coordinate the removal of lead paint dust described in the Order to Abate Nuisance. Specifically, Moloney stated that cleaning wa.s: conducted of all surfaces referenced with a HEP A vacuum, followed by washing with a detergent solution, and a final 1-IEPA vacuuming on December 10, 2019. In addition, Moloney informed the DOH that a third~party lead-based paint inspector was hired in order to collect dust samples, which was completed on December 11, 2019. Moloney enc.losed a report ·providecl to her by Envfro-test lnc., who conducted the dust wipe. samplilig. 7

[7] of 27 [* 7] Bya letter dated January 10, 2020 (NYSC:EF Doc No. 49, January 10; 2020 letter), . . the DOH informed Moloney that the violations in the Commissioner'·s Order to Abate Nuisance were corrected, and that acceptable dust wipe clearance test results were received. According to plaintiff~ she and her family vacated the apartmentin September 2019 (NYSCEFDoc No. 47 at paragraph 5) or in 2020 (NYSCEF Doc NcJ. 48, plaintiffs deptr at 11, lines 19-20), Defendant, on the other hand, claims that plaintiff and her family vacated the apartment in September 2020 (NYSCEF Doc No. 69 at paragraph 16) ot February 2021 (NYSCEF Doc No. 49, Moloney· s dep tr at 195, Iine 6). On December 4; 2019,. plaintiffs filed the instantaction against defendant (NYSCEF Doc No. I). Plaintiffs' complaint alleges claims of negligence and violation of the Administrative Code of the City of New York, and a loss uf services claim on behalf of plaintiff; On May 19, 2020, defendant filed an answer to plaintiffs' complaint (NYSCEF Doc No. 4). On November 29, 2023, plaintiffs filed their instant motion, under motion sequence number four (NYSCEFDoc No. 42). Defendant has submitted opposition papers, and plaintiffs have submitted reply papers. All discovery has been completed, including the depositions- ofplaintiffand Moloney. Plaintiffs filedtheir note of issue on Match 7, 2024(NYSCEFDoc No. 67}. Discussion Local Law l, applicable in the City of New York, ''requires. that the owner of a multiple dwelling remove or cover paint containing specified hazardous levels of lead in any apartment in which a child six years of age or younger tesidcs" (Shafi v Motta, 73 AD3d 729, 729 [2d Dept 201 O]; see also Administrative Code of City of NY § 27-2056.3, 8

[8] of 27 [* 8] § 27~2056.18; Juarezv Wavecrest Mgt. Team, 88 NY2d 628, 641'"642 [1996]; LMvNew York City Haus. Auth, l71AD3d 1154, 1154~U55 [2dDept 2019]; Turner v Davis, 105 AD3d 946, 947 (2d Dept 2013}; O'Neal v New York City Haus: Auth, 4 AD3d 348_, 349 [2d Dept 2004]). "'ViolationofLocal Law 1, however, does not resultin absolute liability for injuries causedby exposure to lead'; (Shafi, 73 AD3d at 729; see also Juarez, 88 NY2d at 643}. "Rather, a plaintiff must establish that the landlord had actual or constructive notice of the condition for a period of tiine such_ that, in the ·exercise of reasonable care, the condition should have been remedied'; (Shafi, 73 AD3d at 729-730; see also Juarez; 88 NY2d at 646). Administrative Code § 27-2056;5 (a), part ofLocal Law 1, provides that "[i]n any multiple dwelling erected prior to J anµary 1, 1960, it shall be presumed that the paint or other similar surface-coating material in any dwelling unit where a child ofapplicable age resides or in the com111onareas is lead-based paint"·(emphasis added;-see Juarez, 88 NY2d at 642; Turner, 105 AD3d·at 947).Applyingthis presumption,-thelandlord will be charged with constructive notice of any lead paint hazard within an apartment that he or she knows is occupied bya child of the specified age (Juarez, 88 NY2d at 647; Hill v Larae House, Inc., 135 AD3d 659,659 [h;tDept 2016]; Turner, 105 AD3d at 947; Shafi, 73 AD3d 729, 729"' 730 [2d Dept 2010]; Jirninez v City of New York, 7 AD3d 268, 269 (1st Dept 2004]; Chadwick v Sabin, 304 AD2d 603, 603-604 [2d Dept 2003]; Woolfolk v New York City Haus. Aidh., '.263 AD2d 355, 355-356 [1st Dept 19991, 1vden.ied4 NY3d 711 [2005]; Rivas v 1340 Hudson Realty Corp,, 234 AD2d 132, 135 [1st Dept 1996]; Colon vNew YorkCity Hous. Auth, 233 AD2d 123, 123 [1st Dept 1996]}. Thus, under Local Law 1, ''whether the 9

[9] of 27 [* 9] landlord had actual notice of peeling paint or other indications of a [lead paint] hazard are immaterhtl" (Woolfalk, 263 AD2d at356; see also Hill, 135 AD3d at 659). Local Law 29 of 2020, which was approved on February 11, 2020 and becaine effective on February 10, 2021, n1ade LocalLaw l applicable to owners ofone- and two,. family rental properties. Specifically, Administrative Code § 27-2056,l provides as follows: "For the purposes of this article; the tenn 'multiple dwelling' includes a private dwelling where· at least one dwelling unit within such dwelling is occupied bY persons other than the owner of such dwelling or a member of such owner's family, provided, however, that the provisions of this article, other than section 27-2056.14, shall not apply to a dwelling unit that is occupied by such owner or a member of such owner's family."· At the time that D. V. was living at the premi-?es and lead paintviolations existed in 2019, Administrative Code§ 2T-2056.l was not yet in effect. Rather, a two".fantily house was not considered to be a n1ultiple dwelling and, therefore, Local Law I was·inapplicable to it (see Ne tra l v L;ppo ld, 3 04 A 02d 491, 4 92 [1st Dept 2 00 3]). N ote2 to Administrative Code § 27-2056.l states that "[t]his local law takes effect 1 year after it becomes law, except the. commissioner of housing preservation and development may take s11ch actions as are necessary for implementation, including the promulgation of rules, before such effective date.'; 5 Thus, Administrative Code§ 27-2056.ltook effect on February iO, 2021. 5 ,;HPD expanded its enforcement work through the implementation oflocal Law 29 of2020, which made Local Law 1 applicable to owners.of one- and two-famiiy rental pr9perties'' (https ://www: nyc:gov /assets/h pd/down loads/pdfs/services/loca!-law-1- report-fy2021. pdf at l). Beginning on July 1, 2020, prior to when Local Law 29 of 2020 went into effect on February 10, 2021, "HPD began to enforce Local Law 1 requirements regarding lead-based paint hazards in one- ahd two-family homes pursuant to Local Law 29 of 2020" (id. at 4). HPD, in partnership with LeadFreeNYC, launched the "Get Ahead of Lead" campaign in November 2019 for multiple dwelling properties and continued it in early 202d with a-particular focus on one- and two-family properties" (id. at 2). "This outreach and education campaign reminded.property owners oftheirobligation.under the law to proactive!y address lead-based paint hazards" (id.). "The campaign ran in eight languages on bus

[10] of 27 [* 10] Plaintiffs argue- that the-.court should apply this: provision retroactively so that Local Law l is .applicable to the premises. and defendant. The court. notes the remedial purpose of this proyision. Furtlwrmore_, in Mttt(e.r ofRegina MetNJ, Co., LLC v New York State Div. of Haus. & Community Renewal (35 NY3d 332, 378 [2020], rearg denied 35 NY3d 1079 [2020].artd 3:5 NY3d- .1081[2.020]), the Court of Appeals noted.that "'where retroactivity is ·integral to full achievement of the fundamental pqrpo&e of the· )~gishition, a rational basis for the. retroactive effect may be readily identifiable.'' However, the g·eneral rule is that"""an arhend1nent will have prospective· appli"cation only~. and will have no retroactive effect, unless its language dearly indicates that it·$hall receive-..a contrary interpretati.ori" {McKinnets Cons Laws of.NY, Book l, Statutes § 52 [footnotes orriitted]). Since Administrative Code § 27-2 056. I .provides a specific effective date and its effective date was postponed by one year .frmri the· time·:of its enactment_, this militates- a,gainst refro,activity- (.~ee: Matter of Elhatmon Who_iesple Nitrsery, Inc. [Commissioner of Labor]. 225 AD.3d 948; 950 [3d Dept 2024]). Furthermorec since Administrative Code§ 27-2056.1 was. not in effect until February 10, 202i. it would be fundamentally unfair-to hold defendant liable under this provision since it did not exjst and Local Law 1 was inapp.licable_·.to defendant at the time ofD.V. 's lead ·poisoning. Thu~_, the court finds that Adrninistrative Co<;le § 27-2056. l is not retroactive and Local Law 1 does not apply in this case (see O'Connor v Weiss, 18 Misc 3d 1124[A], 200"8 NY Slip Op 50.19l[U],_ *7 [Sup-Ct, Kings Couhty2008]). shelters, subway ads, storefronts, newspapers, and social media ih 19 zip codes with high rates of children with elevated blood. lead levels (id.). · 11

[11] of 27 [* 11] While plaintiffs are not entitled to the presumption of Local Law l, that is not the end ofthe inquiry. Where certain requisites are satisfied; a landlord still may be liable for negligence under traditional common-law principles. Under New York common law, a landowner-has a duty to maintain his or her premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233,241 [1976J; Greene v Mullen, 127 AJ)3d 696,697 [2d Dept 20151). "[I]n order for a landlord to be held liable forinjuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that,, in the exercise of reasonable care_, it should have been corrected'' (Juarez, 88 NY2d at 646; see also Greene,

[127] AD3d at 697; Alonso v Coutinho Enters., LLC, 35 AD3d 641, 641 [2d Dept2006]). "In order '[t]o establish that a l,rndlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlotd had actual or constructive notice of, and a reasonable opportunity to remedy, the hazardous condition''' (Wood v Giordano, 128 AD3d 1488; 1489 [4th Dept 2015], quoting Rodriguez v Trakansook, 67 AD3d 768, 768-76_9 [2d Dept 2009]; see alsoAlonso, 35 AD3dat 641). Where there is no evidence that the landlord had actual notice ofthe lead paint hazardous condition, plaintiffs may establish that the landlord had constructive notice of such condition by demonstrating that the landlord '·(l) retained a right of entry to the pteinises 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 thata young child lived in the apartment" (Chapman v Silber; 97 NY2d 9, 15 [2001]; see also Rodrigues v Lesser, 150 AD3d 1686; 1687 [4th 12 12 of 27 [* 12] Dept 2017]; Wood, 128 AI>3dat 1489; Greene, 127 AD3d at 697; Clark v Davis, 52 AD3d 639, 640 [2d Dept 2008]). Thes~ five factors set forth in the Court of Appeals decision of Chapman remaintheba sis for determining whether a landlord had constructive notice ofa hazardouslead..;based paint condition and thus may be held liable (see John v Cassidy, 151 AD3d 1598, 1599 [4th Dept2017], rearg denied 153 AD3d 1676 [4thDept201 7]}. As to the first Chapman factor, defe11dant, in the lease to plaintiff, retained a right of entry to the premises and assumed a duty to make repairs. ''[A] building owner may be charged with constructive notice of defects in those parts of the building into which it has authority to enter;'(Juarez, 88 NY2d at 647). Here, the lease specifically stated that '"Landlord will repair the plumbing, heating and electrical systems" (NYSCEF Doc No. 64, lease,, 8). The lease also stated: "Landlord may enter the Apartment at reasonable hours to: repair, inspect, exterminate, install or work on master antennas or other· systems or equipment artd perform other work that Landlord decides is necessary or desirable. At reastmable hours Landlord may show theApartme ntto possible. buyers, lenders, or tenants of the entire Building or land. At reasonable hours Landlord may show the Apartment to possible or new tenants during the last 4 months of the Term. Entry by Landlordmu st be on reasonable notice except in emergency'' (id at 111 ). Indeed, plaintiff testified,.at her deposition, that defenda,nt's Superintendent, Garcia, entered the premises multiple times to fix other problems inside the apartment, including leaks (NYSCEF Doc No. 48, plaintiff's dep tr at 45, lines 10-25). Plaintiff also attested that ''at leastortcea week, from December20J·g to June 2O19,.asuperintendcmt.named [Garcia], who spoke Spanish, came to [her] apartment in response to complaints that [she] made, or when she came to take out the garbage, artd c:lean the hallway ai1d stairway inside the 13 13 of 27 [* 13]