Two recently decided cases, Chapman v. Silber and Stover v. Robilotto, have effectively extended the duty of property owners of non-multiple dwellings statewide to abate lead-based paint conditions with or without notice of lead within the paint. Prior to the November 14th combined opinion of the Court of Appeals, New York’s highest court, owners of one and two family houses were treated differently from New York City property owners of larger dwellings with regard to their responsibilities to inspect for and abate lead hazards on their property.

In each of the two cases, plaintiff’s counsel sought to have the court extend the Doctrine of Juarez v. Wavecrest Management Team, 88 N.Y.2d 628, 649 N.Y.S. 2d 115 (1996) to all lead exposure cases statewide. In 1996 the Court of Appeals in Juarez, interpreted §2013 of the New York City Administrative Code, requiring a NYC property owner of a multiple dwelling built before 1960 to inspect the premises for lead-based paint where he has knowledge of the presence of a child under the age of seven. The failure to inspect is deemed to be constructive notice of the existence of lead and imposes liability against the landlord in any civil action brought on behalf of the infant.

Previously, summary judgment was available to the owners of non-multiple dwellings, since most plaintiffs were unable to establish that their unsophisticated landlords had knowledge of the presence of lead within the paint. Under the new decision, there will be a question of fact, to be resolved by a jury, as to whether the property owner should have known about the existence of lead, primarily based upon the age of their buildings. While each of the property owners in Chapman and Stover acknowledged knowing about the presence of lead in older buildings and its potential for danger to young children, the court did not reverse Stover, finding that the landlord did not have notice of the peeling paint condition, irrespective of the presence of lead.

This extension of potential liability will likely affect the value of pending cases and encourage new lead litigation. In addition to the concern of property owners, lending institutions must also be alert to their potential for liability, especially where a default by a property owner results in foreclosure.

Property owners and lenders who have pending or potential lead litigation concerns should contact Steven J. Rice at (212) 687-0100 or the Harris Beach attorney with whom they normally work.

This legal alert provides brief analysis or comments on litigation matters. This legal alert does not purport to be a substitute for advice of counsel on specific matters.