November 14-15, 2013
Judge Joseph Murphy (ret)
Silverman Thompson Slutkin White LLC

Brian S. Brown
Saul E. Kerpelman& Associates P.A.

Steven ...
November 14, 2013
Presented to HB Lead Litigation Conference

Steven J. Rice
Partner
Harris Beach PLLC
100 Wall Street
New...
LIABILITY

NEW YORK CITY





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...


Liability of Landlord - if 1. Actual or Constructive Notice of Hazardous Lead
Condition (Constructive Notice establishe...
NEW YORK CITY
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 Loca...


Prevention v. Abatement.



Proper v. Improper Abatement.





Remediate Lead Hazards.
Notify and Investigate.
Use Safe Work Practices.
Make Apartments Lead Safe on Turnover.


Lead Hazards include any condition that
cause exposure to lead contaminated dust
from:
◦
◦
◦
◦
◦

Peeling lead based pa...




Presumption “All-pre-1060 buildings contain
lead paint”.
Owners must prevent the reasonably
foreseeable occurrence o...


Notice
◦ Must send notice between January 1st and January
16th inquiring as to the presence of children age 7
and under...
WHERE OWNER FAILS TO INSPECT
AS REQUIRED – CONSTRUCTIVE
NOTICE OF LEAD PAINT IS
ESTABLISHED.




Must investigate presence of lead hazards in
all pre-1960 and post-1960 to pre-1978
buildings where children under t...


At lease end or renewal:
◦ Must again inquire into whether a child under the
age of 7 will reside in the apartment.
◦ L...


Owner must correct lead hazards:
◦
◦
◦
◦

Must
Must
Must
Must

use workers trained in lead hazards.
use third party for...


Affidavit by Owner asserting:
1. Dust wipe testing is negative for lead.
2. Substantial renovation of property prior to...




Section 173.13 Prohibitions and Abatement
Orders
Section 173.14 Standards for Abatement and
Renovation
MULTIPLE DWELLING LAW § 78
Non-delegable Duty by Landlord to Repair
Applies to Cities with Greater
than 325,000 Population...
NEW YORK STATE
OUTSIDE OF NYC
AND
NON-MULTIPLE DWELLINGS
CHAPMAN v. SILBER
STOVER v. ROBILOTTO
97 N.Y.2d 9
760 N.E. 2d 329
734 N.Y.S.2d 541
NY Court of Appeals
November 15, 2001
N...
1.

2.
3.
4.
5.

Landlord Retained Right of Re-entry to
Leased
Premises and Assumed Duty to Repair.
Knew Apartment was con...
CAUSATION
OR

THE SEARCH FOR
ALTERNATIVE CAUSATION
MUST BE DEEMED
AUTHORITATIVE AND RELIED
UPON BY MEDICAL EXPERTS
STUDIES “CONTROL FOR”
CONFOUNDERS.
WHAT DOES THIS MEAN?
EFFECT ON RELIABILITY OF STUDIES.
1.
2.
3.
4.

Pediatrician
Pediatric Neurologist
Neuropsychologist
Hematologist / Toxicologist
1.

2.

Unsettled as to whether Neuropsychologist
PhD can testify to causation.
Discretionary with the Court on a case by
...


Sibling and Parent Records



Social Services Records
1.

2.

Appellate Division 1st Dept.
June 28, 1993
189 A.D.2d 738; 592 N.Y.S.2d 734
Privilege as to sibling medical record...
Court of Appeals
May 11, 2000
94 N.Y.2d 740; 731 N.E.2d 589; 709 N.Y.S.2d
873
1. Discovery Determinations are Discretionar...


Appellate Division, Third Department
October 21, 2010
77 A.D.3d 1162; 909 N.Y.S.2d 571
Court must distinguish between P...
Distinguish Between
 Social Services Law § 422 and 372
 § 422 Prohibits Disclosure except to
those persons and groups en...




Information gathered under § 372 may be
disclosed and is not confidential simply
because it is kept or produced by C...
Steven J. Rice
Harris Beach PLLC
100 Wall Street
New York, New York 10005
Tel. 212-313-5453
Fax. 212-687-0659
srice@harris...
















Honorable Joseph Murphy (Ret.)
Silverman Thompson Slutkin White LLC
410.385.2225
josephmurphy@...
4  evidence rice hb lead-conf
4  evidence rice hb lead-conf
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HB Litigation Conferences Lead Litigation 2013

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4 evidence rice hb lead-conf

  1. 1. November 14-15, 2013
  2. 2. Judge Joseph Murphy (ret) Silverman Thompson Slutkin White LLC Brian S. Brown Saul E. Kerpelman& Associates P.A. Steven Rice Harris Beach PLLC
  3. 3. November 14, 2013 Presented to HB Lead Litigation Conference Steven J. Rice Partner Harris Beach PLLC 100 Wall Street New York, NY 10005
  4. 4. LIABILITY NEW YORK CITY
  5. 5.    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 1982 Therefore – Applied Retroactively
  6. 6.  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.
  7. 7. NEW YORK CITY LOCAL LAW 1 OF 2004
  8. 8.    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.
  9. 9.  Prevention v. Abatement.  Proper v. Improper Abatement.
  10. 10.     Remediate Lead Hazards. Notify and Investigate. Use Safe Work Practices. Make Apartments Lead Safe on Turnover.
  11. 11.  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.
  12. 12.   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.
  13. 13.  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.
  14. 14. WHERE OWNER FAILS TO INSPECT AS REQUIRED – CONSTRUCTIVE NOTICE OF LEAD PAINT IS ESTABLISHED.
  15. 15.   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].
  16. 16.  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.
  17. 17.  Owner must correct lead hazards: ◦ ◦ ◦ ◦ Must Must Must Must use workers trained in lead hazards. use third party for clearance dust test. provide clearance dust test results to tenant. correct any violations within 21 days. Safe work practices and instruction are outlined at: www.nmic.org/nyccelp/govt.htm
  18. 18.  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
  19. 19.   Section 173.13 Prohibitions and Abatement Orders Section 173.14 Standards for Abatement and Renovation
  20. 20. MULTIPLE DWELLING LAW § 78 Non-delegable Duty by Landlord to Repair Applies to Cities with Greater than 325,000 Population. MULTIPLE RESIDENCE LAW § 174 Applies to Populations Below 325,000
  21. 21. NEW YORK STATE OUTSIDE OF NYC AND NON-MULTIPLE DWELLINGS
  22. 22. CHAPMAN v. SILBER STOVER v. ROBILOTTO 97 N.Y.2d 9 760 N.E. 2d 329 734 N.Y.S.2d 541 NY Court of Appeals November 15, 2001 NY Statewide Liability Standard and for Non-Multiple Dwellings
  23. 23. 1. 2. 3. 4. 5. Landlord Retained Right of Re-entry to Leased Premises and Assumed Duty to Repair. Knew Apartment was constructed before Lead Paint Ban. Aware of Peeling Paint. Knew Hazards of Lead Exposure to Young Children. Knew That a Young Child Lived at Premises.
  24. 24. CAUSATION OR THE SEARCH FOR ALTERNATIVE CAUSATION
  25. 25. MUST BE DEEMED AUTHORITATIVE AND RELIED UPON BY MEDICAL EXPERTS
  26. 26. STUDIES “CONTROL FOR” CONFOUNDERS. WHAT DOES THIS MEAN? EFFECT ON RELIABILITY OF STUDIES.
  27. 27. 1. 2. 3. 4. Pediatrician Pediatric Neurologist Neuropsychologist Hematologist / Toxicologist
  28. 28. 1. 2. Unsettled as to whether Neuropsychologist PhD can testify to causation. Discretionary with the Court on a case by case basis.
  29. 29.  Sibling and Parent Records  Social Services Records
  30. 30. 1. 2. Appellate Division 1st Dept. June 28, 1993 189 A.D.2d 738; 592 N.Y.S.2d 734 Privilege as to sibling medical records could notbe waived. Guardian by bringing derivative suit did not place mental or physical condition in controversy.
  31. 31. Court of Appeals May 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.
  32. 32.  Appellate Division, Third Department October 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.
  33. 33. Distinguish Between  Social Services Law § 422 and 372  § 422 Prohibits Disclosure except to those persons and groups enumerated in the Statute.
  34. 34.   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.
  35. 35. Steven J. Rice Harris Beach PLLC 100 Wall Street New York, New York 10005 Tel. 212-313-5453 Fax. 212-687-0659 srice@harrisbeach.com
  36. 36.             Honorable Joseph Murphy (Ret.) Silverman Thompson Slutkin White LLC 410.385.2225 josephmurphy@mdattorney.com Brian Brown Saul E. Kerpelman& Associates, P.A 410.547.0202 brian@kerpelman.com Steven Rice Harris Beach PLLC 212.313.5453 srice@harrisbeach.com

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