Lead paint removal owner's burden.

Getting Down to Cases

Raquel Rodriguez, an infant resided with her family in an apartment in a multiple dwelling on Dyckman Street, owned by Jan Jan Realty Corp.

The father signed a lease for the apartment in 1986. Raquel was born in 1987. According to the medical records, Raquel at the age of 15 months exhibited symptoms of elevated lead levels in her blood. She was monitored and referred to Montefiore Medical Center where in 1989 she was diagnosed as suffering from lead intoxication.

Rodriguez commenced a law suit against the landlord for damages resulting from injuries sustained by Raquel due to lead poisoning. There was no dispute that paint on the walls of the Rodriguez apartment contained lead, and that the paint was ingested by Raquel. There is also no dispute that the landlord applied the lead-based paint to the walls on the apartment.

The landlord claimed that it was not responsible for the injuries sustained by the infant Raquel since the landlord and the tenant had an agreement whereby in exchange for a reduction in rent which the landlord granted Rodriguez, Rodriguez would repaint the apartment himself. The landlord reduced the rent but Rodriguez failed to repaint the apartment. On that basis, the landlord claimed that it was not responsible for the injury sustained, but that Rodriguez bore the responsibility for those injuries.

Justice Kristin Booth Glen, Supreme Court, New York County, (Rodriguez vs. John Jan Realty Corp. New York Law Journal April 15, 1992, Page 24 Column 3) reviewed the applicable law as well as the current knowledge with respect to the public health issue of lead-based paint. She wrote that lead poisoning is one of the most common and also most preventible pediatric public health problem in the United States. It has long been know that lead is a powerful toxic that is damaging to the nervous system, particularly in young children. Ingestion of lead-based paint chips occurs as a normal play and hand to mouth exploratory activity of young children.

Because of the high risks posed to children, the New York City Health code prohibits the use of lead-based paint in housing. Also, the New York City Housing Maintenance Code requires landlords of multiple dwellings to remove or cover lead-based paint on interior walls, ceilings, doors, window sills or moldings in apartments in which children six years old or younger live.

The Court ruled that the landlord in this case was required affirmatively by the New York City Housing Maintenance Code to remove the lead-based paint from the apartment. While the same Housing Maintenance Code also provides that a landlord must keep its apartments properly painted and that painting is required every three years, a landlord and tenant may voluntarily agree to forego painting for up to two additional years. However, the Court ruled that there is no specific code section which authorizes a landlord to shift the responsibility of painting to a tenant in exchange for a decrease in rent. However, even assuming that a landlord could contract away its duty to paint every three years, this does not absolve the landlord from the legal duty to abate a lead-based paint condition.

Generally, repainting an apartment involves preparing the surfaces to be repainted by scraping, sanding and spackling, and then applying coats of fresh paint. In contrast, lead-based paint abatement involves handling of and exposure to hazardous and highly toxic materials. Lead-based paint abatement requires training and proper procedures. If improperly done, lead-based paint abatement can actually increase the lead hazards to children who live in these apartments.

Therefore, even if Rodriguez had painted pursuant to the agreement made with the landlord, his actions may well have increased the lead dust in the apartment and created an even greater hazard to Raquel.

Further, mere repainting of a surface with fresh unlead paint is not considered a satisfactory method of abating lead-based paint. Therefore the mere repainting of the apartment whether by the landlord or by Raquel's parents not only would not constitute proper lead-based paint abatement but might also create a greater hazard.

Accordingly, the failure on the part of Rodriguez to repaint the apartment pursuant to an agreement with the landlord does not constitute a proper defense to the landlord against this action. The landlord may not absolve himself from responsibility to remove lead-based paint from the apartment. Edward L. Schiff, is the senior partner of Schiff, Turek, Kirschenbaum of New York City.