Court rules owners must look for lead.

In a ruling that has shaken the city's residential owners, an appellate panel has decided an owner has an implied duty to look for lead paint, and if they violate the city's regulation that requires the removal of lead, it is negligence per se.

"No longer do landlords need to have notice of a lead condition before liability can be imposed," said attorney Larry J. Bonchonsky who represented the original owner. "That's an extraordinarily significant departure from case law."

Joseph Strasburg, president of the Rent Stabilization Association. said the judges have gone "too far."

"To say it's negligence per se is almost strict liability. They read too much into the law," Strasburg said.

The panel, hearing Juarez v. Wavecrest Management Team, granted summary judgement against the original owner of the building, Mayaghor Realty, but denied summary judgement against the successor owner, 2295 Morris Associates and the managing agent, Wavecrest Management Team. A trial will have to be held to determine if those parties are liable as well as to determine damages, i.e. any money judgement.

The case involved a child who lived in the building on Morris Avenue in The Bronx for four years. She was diagnosed with lead poisoning at the age of three in September 1988 after living in the apartment for eleven months.

At the trial, the mother testified she saw the child eating the paint chips, but there was never a question as to her parenting or cleanliness in the apartment or other ways the child could have been lead poisoned.

Nor was a physician's affidavit ever presented as to the cause of the child's condition and the court merely relied on hospital records and the mother's testimony.

One question the judges asked attorney Bonchonsky, of counsel to Milton M. Witchel who represented Mayaghor, was "Do we have to wait until little children are poisoned before we do anything about this Mr. Bonchonsky?"

The judges concern turns up in the second sentence of the decision that reads "Many children are poisoned as a result of the owners non-compliance with this statute."

The statute is the city's Local Law 1 and Justice Sidney H. Asch, writing on behalf of the three-judge majority, ruled that it imposes an affirmative duty of inspection upon the owner. Two judges agreed on the ruling but not the legal interpretation, while two others concurred with Justice Ash's opinion.

While he considered the argument made by Legal Aid groups and others that the law should impose "absolute liability," he said the "widespread" problem was a public policy reason against it. "Were a rule of absolute liability to be imposed," he wrote, "owners would not merely have a duty to inspect for lead paint conditions but an absolute duty to succeed in finding every lead paint hazard..." And that, the judge concluded, "seems draconian."

Instead, he determined a violation to be negligence per se because Local Law I puts the burden on the owner to find and remove the lead paint hazards, and so has an implied duty. The owner would, however, have an argument that the existence of a lead paint hazard "existed despite his diligent and reasonable efforts to prevent it."

The judge also said the owner should take action and not watt until he receives notice of the condition because it would encourage owners to remain "ignorant." The decision also refers to the "continuing duty" of a new owner.

"Not just my client, but every residential owner in the City of New York will be affected," Bonchonsky said. "The central holding is the court imposes an affirmative duty to inspect, not withstanding that no express duty to inspect was set forth in the administrative code."

Dan Margulies, executive director of the Community Housing Improvement Program (CHIP), an owner's group, said "This is a very disturbing decision because it would change what has been the primary defense that property owners have been able to make against lead liability claims, which is that they did not receive notice. This decision appears to say you don't need notice, an owner has an affirmative duty to seek out lead paint hazards and address them, rather than relying on the fact they turned over an intact and apparently safe apartment and that a tenant needs to inform them if paint begins to peel or there is damage to the apartment."

R. Bonnie Haber, CHIP's president and an owner and manager of Queens apartments, said "This is outrageous. It will put property owners out of business because to remove the lead will cost a fortune."

Some experts calculated several years ago it could cost more than $15,000 per unit to abate all the lead in a typical apartment.

In effect, Bonchonsky explained, "this bench has substituted its own judgment for that of the mayor and the City Council, who elected not to impose an affirmative duty to inspect."

The City Council has chosen to have owners make inspections on items such as sprinklers, heating units and water tanks, but not for lead paint. "This decision is a throwback to judicial legislating that had its heyday in the Sixties and had been repudiated by most of the courts in the country," added Bonchonsky. They are still studying the decision and would have to seek leave to appeal to the Court of Appeals because the ruling was unanimous.

The City Council is currently negotiating with the Mayor as to a new lead abatement bill that would merely require owners to wet scrape and repaint where lead paint was found. The hang-up is still the replacement of windows, which the Mayor desires.

Michael Stewart Frankel, a Manhattan attorney who was counsel for Juarez, said the current law is very clear as to the obligations of the property owners. "It was to make sure there was no lead paint," he explained. "This is merely a holding that is really enunciating what is in Local Law 1. The court's holding in view of the law was entirely predictable."

Frankel said one common thread in the lead cases that he brings is that property owners are not taking care of the apartments where a child is lead poisoned. "It is not unreasonable for the legislature to impose a responsibility for the property owners to maintain the premises," he added.

Meanwhile, Strasburg said, "If the city comes in and issues a violation, our advice is to challenge the lab report. In 90 percent of the cases, that will show there is no lead problem."