LEGAL CORNER: Recent Lead Paint Decision in New York City and a Review of Lead Paint Regulations

A recent New York Appellate Division decision in E.S. v Windsor Owners Corp. [see https://bit.ly/3UziUk8] focuses on issues relating to lead paint, the liability and legal obligations of owners and cooperative corporations in New York City, and the very real risks and dangers children and infants face each day. It is critical to be aware of the myriad of local, state, and federal legal requirements relating to lead paint, disclosure requirements, the risk of exposure, and the potential liability of owners, including cooperative corporations, landlords and management companies.

E.S. v Windsor Owners Corp.: The Facts

In Windsor Owners, the plaintiff alleges that her child (18 months old) was exposed to lead paint while residing in a cooperative apartment which she was subleasing from one of the defendants, the record owner of the apartment, and alleges that the exposure resulted in lead poisoning of her child. The other defendants were the cooperative corporation, Windsor Owners Corp., and the management company, Tudor Realty Services Corp.

The court points out that the proprietary lease requires shareholders to obtain consent from Windsor for a sublease. The proprietary lease also includes an indemnification provision, which provides that shareholders hold “Windsor ‘harmless from all liability, loss, damage and expense arising from injury to person or property occasioned by the failure of the Lessee to comply with any provision’ of the lease or ‘due wholly or in part to any act, default or omission of the Lessee.’” Windsor and Tudor relied on the indemnification provision in their cross-claim against the Owner.

The sublease between the Plaintiff and the Owner contained the standard form of lead paint disclosure [see https://bit.ly/3ODLo8A] required by the EPA and the New York City lead paint notice [see https://bit.ly/3SUSqIT]. The court points out that the box on the NYC notice indicating that “A child under seven [now under six] years of age resides in the unit” was checked off by the Owner and also notes that the Plaintiff did not sign the notice. The Owner did not submit the sublease to Windsor or Tudor to obtain their consent. When Windsor did learn about the “unapproved” sublease (in early May 2017) it sent a “Notice to Cure.” The Owner and Windsor eventually entered into a settlement, which required the Owner to pay a specified amount and that also allowed the Plaintiff to remain in possession of the apartment.

The court then points out that “On May 31, 2017, the infant plaintiff underwent routine blood tests that revealed he had elevated levels of lead, and he was ultimately diagnosed with lead poisoning….” The Department of Health inspected the apartment and determined that there were hazardous levels of lead present. The DOH then issued an order directing the Owner to remediate the lead paint violations immediately, which the Owner did.

The Plaintiff then commenced the lawsuit and subsequently filed a motion for summary judgment on the issue of liability against all defendants. The Supreme Court granted the Plaintiff’s “motion for summary judgment on liability as to Windsor and the Owner, but denied the motion as to Tudor on the ground that it, as the management company, could not be held liable for the infant plaintiff's lead poisoning.” The Supreme Court also granted the Owner’s cross-motion to dismiss Windsor and Tudor's cross-claim for indemnification because under section 5-321 of the General Obligations Law they “could not be indemnified for [their] own negligence.”

Windsor also argued that since the Owner “cohabitated” with the Plaintiffs, they were relieved from liability because under Local Law 1, if an owner resides in the apartment, then the cooperative corporation would be exempt from liability. However, the Supreme Court did not find this argument persuasive.

NYC Local Law 1 and the Court’s Holding

New York City’s Local Law 1 [see https://bit.ly/4brT8o9], also known as the Childhood Lead Poisoning Prevention Act (“Local Law 1”), requires landlords to take action to prevent reasonably foreseeable injury to children six years of age or younger from peeling lead paint in multiple dwelling units built before Jan. 1, 1960. It also requires landlords and owners “to expeditiously remediate such conditions and underlying defects.”

The court explained that the following must be met in order to establish a defendant’s liability: “(1) that the subject premises were built before Jan. 1, 1960; (2) that plaintiff suffered injuries from lead poisoning from ingesting lead-based paint in the premises; (3) that plaintiff was [six] years old or under when exposed to the lead-based paint; and (4) that the owner had actual or constructive notice that the plaintiff was [six] years old or younger while residing in the premises.” Windsor and Tudor argued that they did not have actual or constructive notice that a child under the applicable age limit lived in the apartment.

The Appellate Division, however, held that the Plaintiff did establish that the defendants had constructive notice that the Plaintiff’s child occupied the apartment since August 2016. The Plaintiff testified at trial that when she moved in, she “introduced herself, the infant plaintiff, and her other child to the doormen as the new tenants in the apartment; added herself as the tenant to the building communications system; regularly received packages and deliveries; scheduled repairs; and greeted the doormen with her children on a daily basis.”

The court further explained that Local Law 1 would not apply to a cooperative corporation or a condominium where an Owner occupies the apartment or unit. However, in this case, since the Owner could not establish that he in fact did “occupy” the apartment during the Plaintiff’s sublease term, the court held that the cooperative corporation defendants (Windsor and Tudor) were liable under Local Law 1.

Additional Important Lead Paint Regulations in NYC

NYC Local Law 31

Local Law 31 (which went into effect on Aug. 9, 2020) requires landlords of multiple-dwelling residential buildings built before 1960, and multiple-dwelling residential buildings built between 1960 and 1978, where an owner has actual knowledge of the presence of lead-based paint, to have X-Ray Fluorescence lead inspections conducted by inspectors who are certified by the EPA. An owner is also required to provide annual notices [see https://www.nyc.gov/assets/doh/downloads/pdf/lead/lead-in-home-bro.pdf ] to tenants between January 1 and January 15 each year.

Local Law 31 also includes a five-year testing requirement, meaning that all residential building owners in NYC must have all dwelling units inspected for lead paint by Aug. 9, 2025.

However, apartments with children under the age of six (6) must be inspected within one year of the date the child moved into the apartment irrespective of the Aug. 9, 2025 date. Under Local Law 31 a child is deemed to “reside” in the apartment if the child spends at least 10 hours per week there.

NYC Local Laws 111, 122 and 123

Local Law 111 [see https://bit.ly/49gJt2k], which goes into effect on June 8, 2024, clarifies that property owners who are subject to Local Law 31 must ensure that the independent, EPA-certified inspector tests for lead-based paint in common areas, as well as individual apartment units.

Commencing on Sept. 1, 2024, Local Law 122 [see https://bit.ly/48dj9ol] requires an owner, upon issuance of a violation, to provide the New York City Department of Housing Preservation and Development with records of the annual notices provided by the owner to tenants, and records of investigations conducted by the owner, as may apply, for the preceding year. If an owner fails to provide the requested records this will be deemed a violation and additional fines will be imposed. The penalties for non-compliance under all of the NYC lead paint laws are significant. [See https://bit.ly/3HT6Rqe]. There is also exposure to personal injury claims and significant monetary damages.

Local Law 123 [see https://bit.ly/42zYWaV], which also goes into effect on Sept. 1, 2024, further amends the lead-based paint remediation requirements that apply on the turnover of a unit or apartment.

Additional Federal, State and Local Lead Paint Rules and Initiatives

The EPA has implemented the Renovation, Repair or Painting Program and accompanying rule [see https://www.epa.gov/lead/lead-renovation-repair-and-painting-program] which requires that any “RRP projects that disturb lead-based paint in homes, childcare facilities and preschools built before 1978 be performed by lead-safe certified contractors.” The EPA’s RRP rule does not apply to homeowners undertaking their own home improvement projects, but does require an owner to use a lead-safe certified contractor if the owner rents all or part of the home, operates a childcare center in the home or is a “house flipper” for profit.

In New York State, various bills have also been introduced relating to lead paint. Senate Bill 2947 [see https://www.nysenate.gov/legislation/bills/2023/S2947] would require property owners to conduct lead paint tests and provide the reports of such test before selling or leasing the property. Senate Bill 2353 [see https://www.nysenate.gov/legislation/bills/2023/S2353] would create “a comprehensive framework for primary prevention of lead poisoning” for the first time ever in New York.

Locally, Westchester County has received a $4.1-million grant from HUD to reduce lead-based paint, dust and other safety hazards. It is noted that “in Westchester County, more than 85% of the housing stock was built before 1978; as a result, many children are potentially at risk for lead-related, lifelong learning disabilities, behavioral problems and other serious health issues.” [See https://homes.westchestergov.com/lead-paint]. The Westchester County Department of Planning will administer the grant program through the Lead Safe Westchester Program and owners of single-family or multi-family dwellings are encouraged to apply for assistance.

Awareness of Lead Paint Issues Is Critical

It is critical for owners, real estate licensees, attorneys, management companies, and tenants alike to be aware of the risks, rights, duties, and legal obligations that exist with regard to lead paint issues. Children can suffer irreparable harm due to exposure to lead paint. It is important for all parties to be knowledgeable about one’s legal rights, available grants, such as the LSW Program, and other assistance available to remediate and reduce the risks of exposure of our most precious assets, our children, to lead paint.

Legal Column author John Dolgetta, Esq. is the principal of the law firm of Dolgetta Law, PLLC. For information about Dolgetta Law, PLLC and John Dolgetta, Esq., please visit http://www.dolgettalaw.com. The foregoing article is for informational purposes only and does not confer an attorney-client relationship and shall not be considered legal advice. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views or positions of HGAR, its affiliates, or any other entity.