Hon. George M Heymann, retired New York City Housing Court Judge || Credit: George M. Heymann

LEGAL OBSERVER: To ‘Reside’ or Not to ‘Reside’

That was the question answered by the Court of Appeals regarding infant children and the lead paint law.

By Hon. George M. Heymann

With major scandals currently swirling around Mayor DeBlasio, his administration and the New York City Housing Authority [NYCHA] this article discusses the issue of lead paint poisoning to children who are left with caregivers so their parents can go to work.

In Romeo and Juliet (Act II, Scene II), Shakespeare poses one of the most famous questions in literary history: “What’s in a name?”  In the legal profession, attorneys, and judges alike, as trained wordsmiths, are frequently called upon to answer the question: “what’s in a word?” Often, the meaning of a single word, or omission thereof, when interpreting a statute, code, contract or stipulation can ultimately determine which party to a suit is successful.

An example of this is the case of Yaniveth R. v. LTD Realty Co., 27 NY3d 186 [2016] wherein the Court of Appeals had to decide whether a child who spends at least 50 hours per week with a caregiver, in an apartment containing lead based paint, but does not live there full time, “resides” in the apartment to “trigger” a duty on the owner/landlord to protect the child from lead poisoning and be held liable for damages if such poisoning occurs.

STATUTORY BACKGROUND

The New York City Administrative Code (“Administrative Code” or “Code”) §27-2056.1, et. seq, sets forth the duties and obligations of both the landlord and tenant with respect to the prevention of lead paint poisoning.

Known as Local Law 1 under the former Administrative Code (§27-2013h.1) , a duty is imposed on every owner of a multiple dwelling to investigate apartments for lead paint hazards and to take such action necessary to eliminate them, as the conditions warrant, to prevent lead poisoning of a child in the subject premises.

The Code contains a rebuttable presumption that any pre-1960 buildings have lead paint, and as such the landlord must ascertain whether any of its tenants have children six years of age or younger residing therein. Administrative Code §27-2056.4a; §27-2056.5

In addition, any unit in a multiple dwelling built between 1960 and 1978, where the landlord has actual knowledge of lead paint and that a child of such age resides therein, must investigate for peeling paint, deteriorated surfaces, etc. on an annual basis. Administrative Code §27-2056.4a

Using a standardized form (in English and Spanish), the landlord of a multiple dwelling must give a copy of it to every tenant upon their initial signing of their lease and every subsequent lease renewal or commencement of their occupancy. Administrative Code §27-2056.4d(1)

The tenant must check one of the following: “( ) A child under six years of age resides in the unit; or ( ) A child under six years of age does not reside in the unit.”, sign it and return it to the landlord. The landlord must also provide such form to the tenants on an annual basis between January 1 and January 16 for all multiple dwellings erected prior to January 1, 1960. Administrative Code §27-2056.4e(1) If the landlord receives no response by February 15, and has no actual knowledge that such child resides therein, then the owner, at reasonable times and upon reasonable notice, shall inspect the apartment and make an investigation to ascertain such information.  Administrative Code §27-2056.4e(3)(1)

If, in fact, a child six years of age or under does reside in the apartment, the duties and obligations of the landlord to prevent lead poisoning are established. If the tenant states that no child under six years of age resides in the premises, no duties or obligations, in this regard, are imposed upon the landlord. If, subsequent thereto, a child six years or younger moves into the apartment, then the tenant has the legal obligation to notify the landlord. Administrative Code §27-2056.4d(2)

If the landlord has no actual notice of a qualified child residing in the premises, but has constructive notice that such a child is in the apartment and hazardous lead paint violations exist, the same duties, obligations and potential liabilities apply. Administrative Code §27-2056.6  Such violations constitute a class C immediately hazardous violation.

A tenant who refuses to sign such notice(s), or fails to notify the landlord of the existence of said child, or denies the landlord access necessary to cure the hazard, may ultimately jeopardize any potential law suit against the landlord and the “presumption” of the existence of hazardous lead paint shall no longer apply. Administrative Code §27-2056.4d(2)

CASE LAW

Twenty years ago, the Court of Appeals had its first opportunity, in Juarez v. Wavecrest Mgt Team, 68 NY2d 628 [Ct of App, 1996], to determine whether a landlord failed to comply with the lead abatement provisions of former Local Law 1, which required the landlord to inquire whether a child six years or younger resided in the subject premises and, if so, to “remove or cover” lead paint of hazardous levels. As the defendant did not contest the allegations that a lead hazard existed, the only issue in dispute was whether the landlord had either actual or constructive notice of the residency of the child six years of age or under.

The plaintiff mother of the infant children in question illegally sublet a room from the tenant of record, who was prohibited from subletting by his landlord. Approximately a year later, her two year old daughter was diagnosed with lead poisoning. Although she had previously observed her daughters with paint dust on their hands and eating paint chips, she complained of the problem only to the primary tenant but never notified the owner / landlord.

The Court stated that the burden was on the plaintiff to prove that a dangerous condition existed and that the landlord had knowledge of same and an opportunity to repair. To be held liable the landlord must have actual or constructive notice or both of the hazardous condition and that a child six years or younger resides therein. Notwithstanding that the landlord had no contractual obligations to the illegal subtenant, Local Law 1 imposed that duty once there was actual or constructive notice to the landlord and/or managing agents, as a result of the City Department of Health issuing an Order to Abate [the lead paint] Nuisance.  

Over the past decade there has been an increase in the number of rent stabilized tenants who use their apartments as childcare/daycare centers. The use of such apartments has been held not to be a substantial violation of the tenant’s lease. As a result, the issue of when a child “resides” in such premises has become a subject that needed to be addressed where parents sued landlords for lead paint violations claiming the amount of time spent in apartments with relatives or paid caregivers can often exceed the amount of time that is spent in their actual homes.

In 2011, the Appellate Division, Second Department, in Michaud v. Lefferts 750, LLC and 91 East 21st Street, 87 AD3d 990 [AD, 2nd Dept (2011)],  addressed that very issue. The plaintiff, individually, and as guardian for her infant daughter, sued for alleged exposure to lead paint. Defendant Lefferts 750, LLC was the building in which the infant lived with her parents. Defendant 91 East 21st Street, LLC was the building where her caretaker-grandmother resided and where the infant stayed “every day after school and would sleep over at least two to three times per week.”  The Appellate Division reversed the Supreme Court’s ruling denying summary judgment as against the landlord of the parents’ building and affirmed the summary judgment dismissal regarding the grandmother’s landlord. As to both Local Law 1 and common law negligence, 91 East 21st Street, LLC, established prima facie, as a matter of law, that the landlord had no duty to the infant child as she did not “reside” in her grandmother’s apartment.

The Court of Appeals, in Yaniveth R. clarified when a child 6 years of age or younger “reside[s]” in the premises of a caregiver, that would obligate the landlord to inspect, repair and eliminate violations of lead paint, as set forth in the Administrative Code, to avoid liability in a personal injury or negligence case.  

Yaniveth R, born in 1997, lived with her parents in their apartment in the Bronx until 2002. At three months of age she began staying with her grandmother while her parents were at work. The grandmother lived in the defendant’s building a few blocks away and she watched her grandchild five days a week from approximately 9:30 a.m. until 6:30 or 7:00 p.m. Both Yaniveth’s mother and grandmother acknowledged that the infant child did not live with the grandmother, but only with her parents and older sister.

In 1998, it was discovered that the child had an elevated blood lead level and the Department of Health issued an Order to Abate for the grandmother’s apartment. The plaintiff mother, on behalf of herself and her infant daughter, commenced an action in 2006 alleging that the landlord of the grandmother’s apartment owed them a duty, under the former sections of the Administrative Code, to abate the condition based on the “significant amount of time” spent by Yaniveth in the apartment.

The sole issue to be determined in Yaniveth was whether Yaniveth “reside[d]” in her grandmother’s apartment “triggering” the landlord’s duty under former Local Law 1 which imposed a duty on the landlord to “remove or cover” lead-based paint “in any dwelling unit which a child or children six (6) years of age or under reside.”  

Noting that the Administrative Code did not define the word “reside,” the Court of Appeals, relying on its holding in Rosner v. Metro Prop. & Liab. Ins. Co., 96 NY2d 475 [Ct of App (2001)], cited the definition of “reside” from several dictionaries during the relevant time period. Among them was Black’s Law Dictionary which states, “‘residence’ ‘is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile’.” Black’s Law Dictionary 1176 [5th ed 1979]

To this end the Court concluded that “[h]ad the City intended to expand the meaning of the word ‘reside’ to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect. The question of whether a person ‘reside[s]’ in a given location is a fact driven inquiry that depends on the totality of circumstances, and although there is no question that Yaniveth did not reside in her grandmother’s apartment, there are a number of situations in which a child may reside in more than one apartment, such as in a joint custody situation of other shared living arrangement.”

CONCLUSION

The issue of whether an infant child “resides” in a particular premises, to warrant protection under the lead paint laws currently in effect, is case specific and “fact driven”. In light of the Yaniveth decision, it would behoove the City Council to take immediate action to rectify the situation to protect such vulnerable children by specifically defining its intent of the word “reside[s]” in the Administrative Code, regarding lead paint poisoning to children six years of age or under.

REFERENCES
  1. See, Carroll St. Props. v. Puente, 4 Misc3d 896 [Heymann, J. (2004)], cited in Marick Real Estate LLC v. Ramirez, 11 Misc3d 42 [App. Term, 2nd Dept (2005)] [the Legislature has preempted the area of regulation as it pertains to lease restrictions to allow for home based child care].
  2. The expert’s report showing lead paint in plaintiff’s apartment was based on testing taken two years after the plaintiff child was diagnosed with lead paint poisoning and, therefore, was insufficient to raise a triable issue of fact in opposition to Leffert’s  motion for summary judgment dismissal.
  3.  Judge Fahey dissented. [“I disagree with the majority, however, to the extent that it concludes that the word ‘reside,’ as used in Local Law 1, is to be narrowly interpreted so as to require that a person ‘liv[e] in a particular place with the intent to retain it as a residence’ and, by extension, to remove Yanvieth from the coverage of that law.

 

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