New York courts will likely see a spike in cases alleging lead exposure among children in public housing controlled by the New York City Housing Authority (NYCHA).  This anticipated spike can be attributed to a recent change in the lead-testing threshold set by the New York City Department of Health (DOH).

A lawsuit filed earlier this year by public housing residents against NYCHA requested an independent monitor due to NYCHA’s alleged failure to, among multiple other complaints, protect residents from exposure to lead.  The lawsuit was filed a few months after the November 14, 2017 report by the Commissioner of the New York City Department of Investigation found that NYCHA committed multiple violations.  Specifically, the Commissioner found that NYCHA failed to conduct mandatory lead paint inspections over a four-year period in violation of federal and local laws, but nonetheless submitted false documentation to the United States Department of Housing and Urban Development certifying its compliance with federal laws that require lead inspections.

The Commissioner’s findings ultimately led to the resignation of many high-level NYCHA officials, including its chairwoman, Shola Olatoye.  There has also been at least one report of a NYCHA employee forging a tenant’s signature certifying an inspection found no lead violations when, in reality, no inspection had occurred.  A few months later, one of the tenant’s minor children tested positive for elevated blood lead levels, and subsequent testing of the apartment revealed lead paint issues.  In April 2018, Governor Andrew M. Cuomo ordered an independent monitor to oversee repairs to NYCHA’s public housing system and NYCHA’s budget.

After a lengthy investigation that began several years ago, NYCHA recently reached a settlement with the United States Attorney’s office, whose terms included a court-appointed federal monitor and nearly $4 billion for repairs to NYCHA housing over the next four years.

As a likely response to these recent developments, the DOH implemented new testing standards earlier this year.  Since 2012, the DOH only mandated the inspection of apartments for which blood-lead level tests in children were 10 micrograms per deciliter or higher.  In early 2018, the DOH revised this threshold by adopting the CDC’s standard of requiring inspections in apartments where children’s blood-lead levels were found in the 5 to 9 microgram range.  Since this change in protocol, NYCHA performed inspections in 40 residences in which children with elevated blood-lead levels were found.  Between 2010 and 2016, there were 19 reported cases of lead poisoning in children living in public housing using the old 10-microgram threshold.  It has recently been revealed that since 2012, more than 800 children living in public housing tested positive for elevated lead levels using the 5-microgram threshold.

This shift in the DOH’s testing protocols will lead to an increase in the number of lead inspections performed by NYCHA, which in turn will likely lead to an increase in lawsuits filed in New York state courts, against NYCHA, by parents and guardians on behalf of children with blood-lead levels in the 5- to 9-microgram range.  However, the DOH’s new requirement to inspect apartments occupied by children with blood-lead levels of 5 micrograms does not automatically impute liability to NYCHA as the property owner.  Parents and guardians will still need to prove there is a correlation between such low lead levels (under 10 micrograms) and any claimed injuries of the children, which are typically alleged to be developmental delays, learning disabilities and issues with cognitive functioning.

If you have any questions about the matters in this Legal Alert or any other legal issues, contact David Dino at (212) 313-5484/ ddino@harrisbeach.com, or the Harris Beach attorney with whom you usually work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.