Heyward v. ShanneHeyward v. Shanne
Appeal from an amended order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered April 15, 2013 in a personal injury action. The amended order, inter alia, denied that part of the motion of plaintiff for partial summary judgment.
It is hereby ordered that said appeal from the amended order insofar as it denied that part of the motion to preclude defend
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustained as the result of his exposure to lead paint in an apartment rented by his mother from defendants when he was a child. Plaintiff moved for partial summary judgment “on the issues of notice, negligence and substantial factor,” and for an order, inter alia, taking judicial notice of certain statutes and regulations regarding lead based paint; “precluding defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]“; and dismissing defendants’ affirmative defenses, with the exception of the affirmative defense seeking a collateral source offset under
We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed. ” ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ” (Pagan v Rafter, 107 AD3d 1505, 1507 [2013]).
Plaintiff further contends that the court erred in denying that part of his motion seeking partial summary judgment “on the issues of notice, negligence, and substantial factor.” We reject that contention. “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” (Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]; see Stokely v Wright, 111 AD3d 1382, 1382 [2013]). Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” (Juarez, 88 NY2d at 646; see Derr v Fleming, 106 AD3d 1240, 1242 [2013]; Woods v Alvarez, 300 AD2d 301, 302 [2002]; Perez v Ward, 271 AD2d
To the extent that plaintiff challenges the amended order insofar as it denied without prejudice that part of the motion with respect to judicial notice (see generally Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]), we conclude that the court properly denied that part of the motion inasmuch as the statutes and regulations in question are inapplicable at this juncture of the litigation (see Stover v Robilotto, 277 AD2d 801, 802 [2000], affd 97 NY2d 9 [2001]; Hamilton v Miller, 106 AD3d 1476, 1477-1478 [2013]; Sykes v Roth, 101 AD3d 1673, 1674 [2012]; Skerritt v Bach, 23 AD3d 1080, 1081 [2005]). We also conclude that the court properly denied those parts of the motion with respect to the affirmative defenses other than that part of the first affirmative defense concerning actual notice, as previously noted herein. The court properly concluded that defendants are entitled to assert that plaintiff’s mother “affirmatively created or exacerbated the lead paint conditions” at the apartment or elsewhere, such as at plaintiff’s “secondary address” with his grandmother at the Howard Avenue residence (M.F. v Delaney, 37 AD3d 1103, 1105 [2007]), although she was not liable for alleged negligent parental supervision (see id.; see generally LaTorre v Genesee Mgt., 90 NY2d 576, 579 [1997]). The court further properly determined that defendants are entitled to assert that “[p]laintiff’s conduct when he was a preteen and teenager . . . may have constituted a failure to mitigate damages at a time when plaintiff could be held legally responsible for his actions” (Cunningham, 85 AD3d at 1372), although the
Fahey, J., concurs in the following memorandum: Fahey, J. (concurring). I respectfully concur in the result reached by the majority, namely, the dismissal of the appeal from the amended order insofar as it denied that part of the motion to preclude defendants from presenting evidence of factors other than lead poisoning that may have contributed to plaintiff’s injuries and the affirmance of the amended order. I write separately, however, to address the dismissal of part of the appeal. I agree with the majority that ” ‘[a]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ” (Pagan v Rafter, 107 AD3d 1505, 1507 [2013]), and that the appeal from the amended order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed. I also note, however, that I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay. I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here. To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.
Present—Smith, J.P., Fahey, Lindley, Sconiers and Whalen, JJ.