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Lead concern to increase damage claims.

Lead. Recent studies have shown that even relatively small quantities of this substance can cause permanent injuries to the brains and central nervous systems of children. Federal, State and local authorities have responded by passing new laws to increase vastly the numbers of children screened for lead poisoning. Additionally, the Federal Centers For Disease Control has lowered the blood-lead level that should trigger intervention by health-care providers. It is expected that these new laws will result in an increase in damage claims.

On July 17, 1992, Governor Cuomo approved the Comprehensive Lead Poisoning Prevention Program, which includes amendments and additions to Title X of New York's Public Health Law -- Control of Lead Poisoning. In approving the program, Governor Cuomo said that of the 1.5 million children under the age of six who are at risk, fewer than 30 percent were screened for lead poisoning in 1991. The Program, which does not become effective until April 1, 1993, requires New York's Department of Health to monitor children with elevated lead levels and identify environmental sources of lead.

Similarly, the Health Care Financing Administration, which supervises the medicaid program for low-income families, recently began requiring that virtually all children ages six months to 72 months undergo screening. More than 6 million children under six years of age are on Medicaid. In New York alone 580,000 children under six are on Medicaid.

New York City's Housing Maintenance Code requires the owners of multiple dwellings to remove or cover paint, or other similar materials, which has a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead in apartment units where a child six years of age or under resides. If the building was constructed before 1960, it will be "presumed" that peeling paint has more than the allowable levels of lead.

Relying on the city's Housing Maintenance Code, a State Supreme Court judge recently allowed a case involving allegations of lead poisoning in a 15-month old girl to proceed. The judge rejected the defense that the child's parents were responsible because they had agreed to repaint the apartment. The judge ruled that the Housing Maintenance Code required a safe, lead-free environment.

Landlords should seriously consider adopting an aggressive risk management program, particularly where an owner's portfolio includes multiple New York City dwellings constructed prior to 1960. In New York city, landlords may be entitled to tax abatements for correcting lead problems.

An effective risk management program, developed through consultation with insurance brokers and legal counsel, should consist of at least five components, including: (1) assessment of the risk, if any; (2) notifying tenants of identified risks; (3) abatement; (4) discussing the insurance coverages and limits available for any claims or potential claims with your broker; and (5) it is important that no outside contractor be permitted to undertake any operations on your premises without first having provided evidence of insurance coverage.

When formulating a plan for risk assessment, public health specialists recommend that testing of deteriorating areas of paint be performed only by licensed and experienced contractors. Local health or housing departments may be able to provide the names of qualified contractors.

When considering abatement, it must be remembered that simply painting over the leaded substance will not correct the problem and may even increase the hazard. Lead-based paint abatement involves working with, and exposure to, hazardous and toxic materials. Training in proper procedures is required. the Federal Centers for Disease Control warns: "[a]batement should never be attempted by untrained parents, property owners, or contractors". 1991 CDC Report p.72. The New York State Sanitary Code Mandates that abatement be done "in accordance with all applicable laws, ordinances, rules and regulations and safety standards and practices of Federal, State and local agencies". Chap.II, Title 10, [section] 67.7(c) Mere painting with lead free paint is not considered a satisfactory abatement method. Tide lo, [section] 67.7(c).

New York City's Department of Housing Preservation and Development recommends that abatement include the removal of all loose paint by scraping, followed by the application of a plaster weld or other bonding agent and two coats of paint. If the condition is recurring and there is evidence of moisture, dry wall construction is indicated.

If excess lead levels are found in residential buildings, both the city's Departments of Health and Housing Preservation and Development can issue notices of violation and abatement. Failure to comply with these notices in a timely fashion can result in fines and civil penalties. Additionally, the failure to comply with a notice of abatement issued by the Department of Health within five (5) days can result in the Emergency Repair Program contracting for the work, and billing die landlord. If a landlord does correct the condition, he/she should contact the Department of Housing Preservation and Development to certify the repair. The Department will send an inspector to examine and confirm the work.

Sachs is general counsel and vice president of Kaye Insurance Associates.
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Title Annotation:new laws regarding lead poisoning may trigger large number of law suits
Author:Sachs, Nancy Fairchild
Publication:Real Estate Weekly
Date:Nov 4, 1992
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