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In New York State 43.1% of dwellings were built prior to 1950.1 47.5 percent of
those pre-1950 dwellings are renter occupied. Despite the fact that lead paint has been banned in New York City from residential use since 1960, the presumption is that these pre-1950 dwelling units contain several lead-paint hazards, which could potentially result in exposure to lead and lead poisoning.
What is lead poisoning? The New York City Health Code and Center for Disease Control and Prevention defines lead poisoning as a blood lead level greater than or equal to 10 mcg/dl.2 Lead poisoning has been associated with learning and behavior problems,
reduced intelligence and other health effects. In an effort to limit the cases of lead poisoning the New York State Department of Health has issued several legislative requirements on landlords. Throughout the years these legislative requirements have evolved and become more stringent on New York State landlords. This article addresses the legislative evolution of the lead paint requirements, including the future of lead paint legislation.
WHAT ARE LEAD PAINT HAZARDS?3
Lead paint hazards include, but are not limited to the following:
(a) Any lead-based paint on a friction surface4 that is subject to abrasion and
where the lead dust levels on the nearest horizontal surface underneath the friction surface (e.g., the window sill, or floor) are equal to or greater than the dust-lead hazard levels.5 A dust-lead hazard is surface dust in a residential dwelling or child-occupied
facility that contains a mass-per-area concentration of lead equal to or exceeding 40 or more micrograms per square foot or 250 or more micrograms per square foot on interior window sills based on wipe samples.
(b) Any damaged or otherwise deteriorated6 lead-based paint on an impact
surface that is caused by impact from a related building component (such as a door knob that knocks into a wall or a door that knocks against its door frame).
(c) Any chewable lead-based painted surface on which there is evidence of teeth marks.7
(d) Any other deteriorated lead-based paint in any residential building or child-occupied facility or on the exterior of any residential building or child-occupied facility.8
WHO IS RESPONSIBLE FOR ELIMINATING THESE HAZARDS? LOCAL LAW 19
In 1982, the New York City Counsel adopted lead abatement legislation contained in the Housing Maintenance Code, known as “Local Law 1.” It provided in pertinent part that:
“The owner of a multiple dwelling shall remove or cover in a manner approved by the department any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the non-volatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside. Administrative Code § 27-2013[h][1]. (Emphasis added).”
Local Law 1 of 1982 was the City’s first attempt to define owner obligations for abatement of existing interior lead paint conditions. The presumption was that peeling paint in buildings constructed prior to 1960 where children under the age of six resided posed lead paint hazards.
In Juarez v. Wavecrest Management Team Ltd., 212 A.D.2d 38, 627 N.Y.S.2d 620 (1st Dept. 1995), a sub-tenant and her infant child filed a negligence action against the
managing agent, prior owner and successive owner of an apartment building, alleging that the infant suffered severe personal injuries as a result of exposure to lead paint. Under Local Law 1 owners of multiple dwelling units were required to remove or cover paint containing lead paint hazards in any apartment in which a child six years old or younger resided. The Appellate Division First Department affirmed the trial court’s decision and held that: “(a) the New York City’s Administrative Code § 27-2013(h) (“Local Law”) imposed an affirmative duty on landlords to remove lead paint which exceeded a certain level in premises occupied by a child(ren) under seven years of age; presumed such a level in pre-1960 buildings; and classified the condition as a Class C, immediately hazardous condition which the landlord must correct within 24 hours; (b) violation of Local Law 1 constituted negligence per se because the landlord had a right to enter every premises and effectuate repairs; (c) liability ensues where a significant structural or design defect existed and is open visible and long-standing; but (d) landlord who had the duty to act reasonably could exculpate himself by proving that the lead paint hazard existed despite diligence and reasonable efforts to prevent it”.10
On appeal the defendants’ in Juarez contested whether violation of Local Law 1 constituted negligence per se.11 The Court of Appeals (New York’s highest Court)
New York City Administrative Code imposing a specific duty on landlord to remove hazardous levels of lead-based paint imposed a standard of reasonableness, rather than absolute liability; (2) in order to be held liable under the statute, the landlord had to have either constructive or actual notice of both the lead paint hazard and the residency of a child six or younger; (3) the right of re-entry was sufficient to establish constructive notice of the existence of lead paint in any pre-1960 apartment where the landlord knew the existence of a child six years or younger; (4) issues of notice prior to an abatement order were not sufficient to establish summary judgment; and (5) that there needed to be proof that lead paint hazards in the apartment caused the child’s injuries. The distinguishing factor in Juarez was that the plaintiff was a sub-tenant of which the landlord had no knowledge. Moreover, the Administrative Code only applied to the New York City area.
Under general premises liability law the burden was on the plaintiff to prove not only that a dangerous condition existed on the premises but also that the landlord had notice of that condition and a reasonable opportunity to repair it.12 The “standard of
reasonableness” allowed a landlord to persuade the fact finder that the existence of a lead paint hazard existed despite his diligent and reasonable efforts to prevent it”.13
Therefore, if a landlord established that he exercised due care and acted reasonably under the circumstances, he would not be held liable for a Local Law 1 violation.
Local Law 1 of 1982 placed an affirmative duty on landlords in a multiple-dwelling to protect children under the age of seven, as they are the most vulnerable to lead paint poisoning. Thus, lead-based paint constituted a hazard only where (1) the lead exceeded the stated threshold, at the time 0.7 mg. and (2) a child six years of age or under resided in the apartment. Despite this affirmative duty, Local Law 1 of 1982 did not charge landlords with the responsibility of determining whether young children resided in any of their dwelling units.14 However, where the landlord did have notice of a child under the
specified age, constructive notice would be imposed.15
Subsequent to Juarez, in James C. Chapman et al., Respondents, v. Dennis Silber et al., Appellants, 275 A.D.2d 122, 714 N.Y.S.2d 575 (3rd Dept. 2000) and Carlisa Stover et
al., Appellant, v. Yolando Robilotto, Respondent, 277 A.D.2d 801, 716 N.Y.S.2d 146 (3rd
Dept. 2000) tenants in separate actions brought actions against their landlords alleging that the landlords had a duty to test for lead paint in their apartments.
In Chapman defendants in the action were former owners of a two-family residence in Albany, New York. The owners occupied the first floor of the subject premises from 1987 until 1992, at which time they relocated to the second floor. Prior to their relocating, the entire second floor apartment was painted. The owners moved out of the second floor apartment in 1994, and the walls were again repainted. Plaintiffs and their one year old son moved into the second floor apartment in July 1994. In September 1994, plaintiffs learned that their son had a moderately elevated lead level in
his blood and were advised to have the test repeated in two months. Plaintiffs did not advise the owners of the child’s condition until August 1995 when another blood test revealed a high level of lead and the child was hospitalized for several days of chelation therapy.
The tenants argued that because: (1) the owners were physically present in the apartment during the lease term and allegedly observed peeling and flaking paint (in the window tracks and on the front porch); and (2) the lease contained a provision granting the landlord the right to enter the premises to inspect and perform repairs, the owners had constructive notice of the dangerous condition created by the existence of lead-based paint in the apartment and should be held liable for the infant’s injuries. The Supreme Court denied the owners’ motion for summary judgment, finding a question of fact as to whether they had such constructive notice.
The Appellate Division Third Department was then asked to determine “whether a landlord's knowledge of peeling and chipping paint in the leased premises constituted constructive notice of a dangerous or defective condition such that the landlord could be liable for the lead poisoning of an infant tenant”. The Appellate Division reversed, finding that knowledge of peeling paint was not the legal equivalent of constructive notice of the presence of lead-based paint. The Appellate Division distinguished Chapman from Juarez
in that the owners in Juarez owned a multiple-dwelling unit in New York City, rather than a two-family residence. Significantly, New York City had enacted legislation which, in effect, provided for constructive notice to landlords of hazardous lead conditions in those apartments erected prior to 1960 where landlords know that they are occupied by children six years old or younger (See, Administrative Code of City of NY §§ 27-2056.1 [a] [2]; 27-2056.4). In lead paint cases arising outside of New York City, however, it was well established that knowledge by a landlord that a leased premises contains peeling and chipping paint was not constructive notice that a lead hazard existed on that premises. Although, general premises liability imposed a duty on a landlord to maintain the premises in a reasonably safe condition,16 the New York City Administrative Code
imposed a more stringent duty on landlords to inspect for and remove lead paint hazards from pre-1960 apartments. As such, the Administrative Code presumed notice on behalf of the landlords.17
Subsequent to Chapman, in Stover plaintiffs/tenants attempted to impute constructive notice on the defendants/owners on the basis that the owners had: (1) the statutory right under the Public Health Law to enter the premises and the duty to maintain the premises free from lead hazards; (2) the contractual right to enter and the responsibility to maintain and repair the premises; and (3) general knowledge regarding the presence of lead based paint in old buildings and dangers of lead to children, based upon the fact that another of the owner’s premises was found to have lead hazards leading to an infant's poisoning 15 years prior, and that the subject premises contained conditions conducive to lead poisoning. The Appellate Division affirmed the trial court
finding that: (1) a statutory right under the Public Health Law did not form a basis to impute constructive notice; (2) the actual or constructive notice rule was premised on the concept that some observable condition existed that the landlord either had discovered or, in the exercise of reasonable care, should have discovered and remedied.18 The existence of a lead paint hazard was deemed not observable upon visual
inspection; and (3) simply showing that an apartment was old and may contain lead-based paint was not sufficient to constitute constructive notice.19
Since the Appellate Division Third Department had reversed the trial court’s decision in Chapman but affirmed the decision in Stover, both cases were brought before the New York State Court of Appeals in James C. Chapman et al., Appellants, v. Dennis Silber et al., Respondents and Carlisa Stover, Appellant, v. Yolando Robilotto, Respondent, 97 N.Y.2d 9, 760 N.E.2d 239, 734 N.Y.S.2d 541 (Ct. App. 2001). The Court of Appeals refused to impose a new duty on landlords to test for the existence of lead in leased properties based solely upon the “general knowledge” of the dangers of lead-based paint in older homes. Only where the landlord had actual knowledge of a lead paint hazard could the landlord be charged with constructive notice. Based on the foregoing, the court concluded that an issue of fact was raised when the landlord: (1) retained a right of entry to the premises and assumed a duty to make repairs; (2) knew that the apartment was constructed at a time before lead-based interior paint was banned; (3) was aware that paint was peeling on the premises; (4) knew of the hazards of lead-based paint to young children; and (5) knew that a young child lived in the apartment.20 However,
because plaintiffs in Chapman had raised an issue of fact as to defendants' notice of a high degree of risk that a dangerous lead paint hazard existed, the order of the Appellate Division dismissing the complaint was reversed. Conversely, since plaintiff in Stover failed to raise such an issue, no question of fact precluded summary judgment and the order of the Appellate Division dismissing that case was affirmed. By reversing the order in
Chapman, the Court of Appeals extended the Juarez decision imputing constructive knowledge [where the owner was aware of the age of the building, the presence of chipped and peeling paint, the dangers of lead paint to children, and the presence of young children in the apartment] on owners of two family residences outside of New York City.
Despite the strict guidelines, at the time of the Juarez decision, New York courts interpreted Local Law 1 as requiring the complete removal or encapsulation of lead paint in any multiple dwelling unit occupied by a child under the age of seven. However, the state of scientific knowledge showed that improper removal could also create a substantial hazard to the health of young children. Moreover, due to improper abatements and the burdensome costs to landlords of the law’s requirements, the City did not enforce Local Law 1 until 1998, when the New York County Supreme Court ordered the City to begin implementing the law or to develop an alternative. Ultimately in 1999 an alternative bill introduced by the Giuliani administration, with Council amendments, was adopted as Local Law 38.21
LOCAL LAW 38
Local Law 38 imposed new requirements on landlords, the Department of Housing Preservation and Development (hereinafter “HPD”), and the Department of Health (hereinafter “DOH”). Under the new law, landlords in pre-1960 multiple dwellings had to make a good faith effort to determine whether a child six years old or younger lived in a unit, and if so, to annually inspect the unit for peeling paint and correct any lead paint hazards. If a tenant made a complaint to HPD about a possible lead paint hazard, Local Law 38 imposed specific inspection requirements on HPD. If a lead paint hazard was found, the landlord had to correct it within a specified time frame and certify to HPD that the violation had been corrected. False self-certification was subject to a penalty of $25,000. If the landlord failed to correct a lead paint hazard violation, HPD would refer the violation to its emergency repair bureau and charge the landlord for the cost of the work. A lead-paint violation is a Class C, or emergency violation. A class C violation had to be expeditiously remedied.
DOH was given responsibility for promulgating work practices for removal of lead-based paint and for publishing a pamphlet to explain the health hazards associated with lead-based paint; the pamphlet included a contact number for securing medical assistance and reporting unsafe work practices. DOH had to refer any uninsured or underinsured child to a medical provider if assistance was requested with obtaining a blood lead screening, test, diagnosis, or treatment. If the owner certified that the violation had been corrected within the legal deadlines, HPD re-inspected the unit to confirm that the lead hazards had been remedied. In cases where the owner incorrectly certified that the hazards had been remedied, HPD was responsible for correcting the violation. HPD’s first step was to confirm the presence of lead-based paint. In those units in which lead was present, HPD was required to remove peeling paint and repair any deteriorated sub-surfaces. The owner was billed for the cost of the repair, and a lien was placed on the property.
Although Local Law 38 amended already existing law pertaining to an owner’s duty to inspect units with children under six years of age for lead-based paint hazards, it did not address the licensing requirements for lead abatement nor the work practice standards. Thus, the law was deficient. In addition to these deficiencies, In the Matter of New York City Coalition to end Lead Poisoning, Inc., et al. v. Peter Vallone, 100 N.Y.2d 337, 794 N.E.2d 672, 763 N.Y.S.2d 530 (Ct. App. 2003), NYCCELP, several individual tenants and nonprofit entities commenced proceedings to nullify Local Law 38 because the legislation failed to comply with the State Environmental Quality Review Act (“SEQRA”).22 The trial court granted the petition on the grounds that the legislative
process did not satisfy environmental review requirements. Specifically, the legislative body was required to consider any environmental concerns or potential adverse impact and provide in writing a statement detailing the potential concerns and why these concerns were eliminated. Petitioners argued that Local Law 38 failed to identify lead
dust as a lead-based paint hazard. The Appellate Division affirmed the trial court and stated that by not considering the impact of lead dust the City Council did not fully comply with SEQRA’s requirements, thus invalidating Local Law 38 and reviving Local Law 1. Specifically, the Court of Appeals ruled that when the City Council passed Local Law 38 it violated State environmental law by failing to adequately study or explain the new law’s environmental or public-health impact. Despite the court’s invalidation of Local law 38, they found that Local Law 38 was more comprehensive than its predecessor and urged the various interest groups to negotiate in good faith and develop a new lead-paint law.
NEW YORK CITY CHILDHOOD LEAD POISONING PREVENTION ACT OF 2003 a/k/a LOCAL LAW 1 OF 2004 (EFFECTIVE 8/1/04)
In an attempt to find a midway between Local Law 38 and Local Law 1 of 1982 the New York City Council adopted the “Childhood Lead Poisoning Act of 2003” a/k/a Local Law 1 of 2004. This new legislation became effective August 1, 2004. The difference between the “Childhood Lead Poisoning Act of 2003” and its predecessors is that the objective has been shifted to “prevention” rather than abatement. Specifically, eliminating lead hazards before children are exposed.
The underlining premise of “Childhood Lead Poisoning Act of 2003” is that if landlords are going to be permitted to leave lead paint in place, they must be proactive in assuring that the lead remains in a condition that is not immediately hazardous to the occupants.23 Thus, while a full abatement is not required, owners are required to
maintain a safe dwelling at all times, using their knowledge of the particular characteristics of the buildings they own and/or manage.24 Specifically, it requires that
work involving repairs or disturbance of lead paint always be done by properly trained personnel using “safe work practices.”
The “Childhood Lead Poisoning Act of 2003” requires landlords to actively ascertain whether children under the age of seven reside in multiple dwellings units and inspect those units at least once a year for lead hazards. If any lead hazards are deemed to exist, landlords will be required to promptly and safely correct them. Section 27-2056.4 of the “Childhood Lead Poisoning Act of 2003” reads in pertinent part:
“Where an occupant has responded to the notice provided by the owner pursuant to paragraph one of subdivision d of this section by indicating that no child of applicable age resides therein, during the period between the date of such response and the delivery of the notice provided by the owner pursuant to subdivision (e) of this section during the immediately following year the occupant shall have the responsibility to inform the owner of any child of
applicable age that comes to reside therein during such period. In the event such occupant fails to inform the owner of such child as required by this paragraph, and the owner does not otherwise have actual knowledge that such child is residing in the dwelling unit, the presumption provided for in section 27-2056.5 of this article shall not apply in any action to recover damages for personal injury caused by contact with or exposure to lead-based paint or lead-contaminated dust.”
As such, once a tenant advises the owner that no children under the age of seven reside in the unit, the owner is under no further obligation to investigate. However, knowledge of a child under the applicable age can be imputed to the owner from the superintendent, management company or other person acting on behalf of the owner.
Notice
Notifying tenants of lead hazards is a critical component of Local Law 1 of 2004. Notice must be sent to all tenants between January 1 and January 16 of each year, inquiring as to the presence of children under the age of seven. Tenants must respond by February 15th. If the tenant does not respond, the owner has a duty to investigate the
presence of children under the age of seven between February 16th and March 1st. If the
presence of a child is determined, the owner must determine whether any lead hazards exist and advise the tenant of the hazards of lead paint and the results of the investigation.
Pre and Post Notice Investigations
Owners must investigate the presence of lead hazards in all pre-1960 buildings. Owners must also investigate potential lead hazards in post-1960 to pre-1978 buildings where the owner knows lead hazards exist. Investigations must be conducted annually, or more often if, the owner is aware of a condition that may cause a lead hazard or the tenant complains about such a condition. Where a tenant has complained an owner must inspect the premises within ten days.
Correcting Lead Hazards
Owners must use safe work practice standards to correct lead hazards. 25 Work
practice standards set forth by the NYC Council on Prevention of Lead Poisoning mandate the use of trained lead removal workers and the use of third-parties for clearance dust test. Contractors must adhere to the Safety Standards in the New York City Health Code §173.14. All violations must be remedied within 21 days and the
results must be provided to the occupant. All records of repair must and should be retained by the owner.
Evolution of Lead Paint Law26
Local Law 1
(1982) Local Law 38 (1999) Prevention Act of 2003 Child Lead Poisoning (Local Law 1 of 2004) Definition of
Lead Dust Not explicitly stated but Health Code Regulations stated: 40 ug/ft floors, 250 ug/ft window sills, 400 ug/ft window wells.
Did not regulate lead dust at all. Lead dust was neither defined nor controlled.
Requires control of lead dust to federal standards: 40 ug/ft floors, 250 ug/ft window sills, 400 ug/ft window wells.
Definition of Lead
Hazards27
All lead paint, in
any condition. Only peeling paint or paint on deteriorated sub surfaces.
Any condition that causes exposure to lead from lead contaminated dusts, or lead paint that is peeling or present on friction, impact or chewable surfaces that would result in an adverse health effect. Landlords Duty to Correct28 Landlord had to prevent lead poisoning.
Landlord only had to correct peeling paint.
Landlord must prevent and expeditiously correct any lead hazard in a multiple dwelling. The landlord must also correct underlying defects, such as water leaks, that cause paint to peel.
Landlord Duty to Investigate Landlord had no duty to investigate presence of children.
Landlord only had to send notice inquiring as to whether child under six resided in apartment. If no response was provided, landlord had no further duty.
Landlord must send annual notice inquiring as to whether children under the age of seven reside in the apartment. If no response is received, landlord must investigate. HPD Investigation and Issuance of Violation HPD had 20 days from inspection to serve notice of violation. Owner HPD had 20 days to serve notice of a violation in a multiple dwelling after
HPD must serve notice of a violation in a multiple dwelling within 10 days of inspection and notify tenant
Local Law 1
(1982) Local Law 38 (1999) Prevention Act of 2003 Child Lead Poisoning (Local Law 1 of 2004)
had 24 hours from date of notice to correct.
inspection and only had to notify the tenant at some unspecified time. simultaneously. Deadline for HPD to correct the hazard if the landlord fails to act Within 45 days of date violation was issued.
Within 220 days of date violation was first issued.
Within 91 days of date violation was first issued.
Safety Measures for Lead Paint Removal Based on federal standards.
For the first 21 days after receiving a violation, the
landlord could ignore most of the City Health Code safety regulations while doing abatement; only a small portion of the standards apply, This
encouraged landlords to do a quick – and dirty – job.
City Health Code safety regulations for lead paint removal would apply to all dwellings with children under seven years of age.
Day Care
Centers No requirements. No requirements. Peeling lead paint must be removed safety.
With the constant changing of lead poisoning law landlords should keep in mind the following important factors:
• Remediate Lead Hazards • Notify Tenants and Investigate
• Correct Lead Hazards Using Safe Work Practices • Make Apartments Lead Safe on Turnover
Although these factors have been outlined by legislation, they have yet to be tested in the courts. As such, it is possible that the continuously evolving lead paint law may be again amended to address the potential issues owners could encounter with notifying, investigating and abating.
How Can We As Lawyers Protect Our Clients?
Typically, defense attorneys will argue that a lead exposed child's deficits and behavioral problems are due to "environmental" or inherited “physiological” or “psychological” factors. Other factors to evaluate include: (1) circumstances surrounding the child’s birth and attainment of developmental milestones; (2) the mother’s health during her pregnancy; (3) whether the family resides in a residential area with industrial sites, junkyards or gas stations (i.e. possible other sources of lead contamination) and; (4) whether the landlord is absentee or on the premises. If the family has moved three or four times within the time period in which the exposure occurred, the case against any one landlord becomes more complex.
The viability of a case depends on whether the preponderance of evidence points to a clear relationship between the exposure to lead and objective, demonstrable symptoms in the child. The evidence can be obtained through diligent and comprehensive identification of relevant witnesses, investigation, record gathering (i.e. contracts, lease agreements, floor plans, prior inspections and/or abatements and medical and school records of the child and his family) and inspection. This information may be obtained from landlords, building managers, medical providers and school officials.30
The Future
Today researchers continue to examine the effects of lead on the neurological development of children. A recent article reviewed statistics of several past studies to conclude that children with blood-lead levels less than 7.5 mcg/dl were found to have a 6.9 point IQ loss after consideration of confounding factors.31 At higher levels, the same
range of IQ loss was not noted, therefore leaving the impression that the most substantial damage occurs at the lowest levels.
This research obviously has the potential for significant impact upon future lead paint litigation since plaintiffs’ attorneys and experts are likely to rely upon it to establish injury at levels previously thought to be non-actionable. In fact, in January 2005, the New York City Department of Health and Mental Hygiene Lead Poisoning Prevention Program along with other City agencies drafted a Comprehensive Childhood Lead Poisoning Prevention Plan (“Lead Prevention Plan”) to be implemented by 2010.
The Lead Prevention Plan has three major components: (1) to prevent exposure of children to lead paint, (2) to prevent exposure of children to non-paint lead sources and (3) to promote blood testing of children, especially those at high-risk for lead poisoning. Children are primarily exposed to lead paint and other contaminants in their homes. Outside potential sources of lead exposure include imported products such as food, cosmetics, spices and traditional medicines that contain lead, imported lead-glazed pottery, lead contaminated drinking water or soil and exposures associated with occupations or hobbies.32
To meet these goals the Lead Prevention Plan sets forth specific objectives to be completed by December 31, 2010. These objectives are as follows: (1) safely correct identified lead paint hazards in at least 21, 600 housing units, (2) annual assessment and safe repairs of all lead paint hazards in group day care facilities, (3) reduce prenatal lead exposure and reduce maternal and child exposure to imported products that contain lead, (4) test for lead poisoning in at least 80% of one and two year old children, (5) test 90% of all children enrolled in Medicaid Managed Care for lead poisoning by age 2; and (6) test 100% of all children enrolled in Early Intervention Program by age three.
Should the City succeed with its plan a decrease in the lead industry litigation can be expected. In the interim landlords who fail to provide their tenants will the appropriate notice risk an increase in lawsuits. Moreover, those who fail to remedy the hazards within the allotted time risk violations. These violations can result in fines up to $2,000.00. Thus, the most obvious defense is prevention. Landlords should be encouraged to abate all premises where there are potential lead hazards.
1 www.health.state.ny.us/dysdoh /environ/lead/finalplanscan.htm.
2 24 RCNY §11.03. The Centers for Disease Control and Prevention (CDC) also defines an elevated blood
level as greater than 10 micrograms of lead per deciliter of blood.
3 Lead-based paint shall mean paint or other similar surface coating material containing 1.0 milligrams of
lead per square centimeter or greater, as determined by laboratory analysis, or by an x-ray fluorescence analyzer. If an x-ray fluorescence analyzer is used, readings shall be corrected for substrate bias when necessary as specified by the performance characteristic sheets released by the United States environmental protection agency and the United States department of housing and urban development for the specific x-ray fluorescence analyzer used. X-ray fluorescence; readings shall be classified as positive, negative or inconclusive in accordance with the United States department of housing and urban development “Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing” (June 1995, revised 1997) and the performance characteristic sheets released by the United States environmental protection agency and the United States department of housing and urban development for the specific x-ray fluorescence analyzer used. X-ray fluorescence readings that fall within the inconclusive zone, as determined by the performance characteristic sheets, shall be confirmed by laboratory analysis of paint chips, results shall be reported in milligrams of lead per square centimeter and the measure of such laboratory analysis shall be definitive. If laboratory analysis is used to determine lead content, results shall be reported in milligrams of lead per square centimeter. Where the surface area of a paint chip sample cannot be accurately measured or if an accurately measured paint chip sample cannot be removed, a laboratory analysis may be reported in percent by weight. In such case, lead-based paint shall mean any paint or other similar surface-coating material containing more than 0.5% of metallic lead, based on the non-volatile content of the paint or other similar surface-coating material.
4 “Friction Surface” shall mean any painted surface that touches or is in contact with another surface, such
that the two surfaces are capable of relative motion and abrade, scrape, or bind when in relative motion. Friction surfaces shall include, but not be limited to, window frames and jambs, doors, and hinges.
5 Lead –contaminated dust” shall mean dust containing lead at a mass per area concentration of 40 or more
micrograms per square foot on a floor, 250 or more micrograms per square foot on window sills, and 400 or more micrograms per square foot on window wells or such more stringent standards as may be adopted by the department of health an mental hygiene.
6 Deteriorated subsurface shall mean an unstable or unsound painted subsurface, an indication of which can
be observed through a visual inspection, including, but not limited to, rotted or decayed wood, or wood or plaster that has been subject to moisture or disturbance.
7 Chewable surface shall mean a protruding interior window sill in a dwelling unit in a multiple dwelling
where a child of applicable age resides and which is readily accessible to such child. “Chewable surface” shall also mean any other type of interior edge or protrusion in a dwelling unit in a multiple dwelling, such as a rail or stair, where there is evidence that such other edge or protrusion has been chewed or where an occupant has notified the owner that a child of applicable age who resides in that multiple dwelling has mouthed or chewed such edge or protrusion.
8 40 C.F.R. 745.65
9 Local Law No. 1 (1982) of the City of New York (Administrative Code of City of N.Y. § 27-2012[h]). 10Juarez v. Wavecrest Management Ltd., 88 N.Y.2d 628, 672 N.E.2d 135, 649 N.Y.S.2d 115 (Ct. App.
1996).
11 Id.
12Juarez at 642.
13James C. Chapman et al., Individually and as Parents and Guardians of Jaquan Chapman, an Infant, Appellants,
v. Dennis Silber et al., Respondents and Carlisa Stover, Individually and as Parent and Guardian of Everton M. Lewis, an Infant, Appellant, v. Yolando Robilotto, as Executor of James O'Connor, Deceased, Respondent, 97 N.Y.2d 9, 760 N.E.2d 239, 734 N.Y.S.2d 541 (Ct. App. 2001).
14 Juarez at 647. 15 Id.
16 In Putman v. Stout, 38 N.Y.2d 607, 616-617, 381 N.Y.S.2d 848, 345 N.E.2d 319 (Dept. 1976), the court
relaxed the premise liability doctrine and imposed a duty to remedy dangerous conditions where the landlord contractually assumed the responsibility to make repairs.
17 See Juarez, supra.
18Carlisa Stover, Individually and as Parent and Guardian of Everton M. Lewis, an Infant, Appellant, v. Yolando
Robilotto, as Executor of James O'Connor, Deceased, Respondent, 277 A.D.2d 801, 802; 716 N.Y.S.2d 146 (3rd
Dept. 2000) (citingGordon v American Museum of Natural History, 67 NY2d 836, 837).
19Stover at 803 (citing Brown v Marathon Realty, 170 AD2d 426, 428). 20Chapman at 15.
21 The amendments required dust wipe clearance testing in certain circumstances, reduced some time
periods for inspection and compliance procedures, and increased one of the civil penalties for noncompliance.
22 SEQRA was adopted with the intent that “protection and enhancement of environment, human and
community resources be given appropriate weight with social and economic considerations in public policy.”
23 Chachere, Matthew and Rodriguez, Andrea, A Bill That Helps End Lead Poisoning, New York City
Gazette, Feb. 2, 2004.
24 The council implementing the “Childhood Lead Poisoning Act of 2003” found that there is sufficient
information to guide owners in making determinations about the existence of lead-based paint hazards (i.e. United States environmental protection agency “Identification of Dangerous Levels of Lead, Final Rule” Federal Register, Vol. 66, No. 4 (January 5, 2001); United States Department of Housing and Urban Development, “Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing” (June 1995, revised 1997).
25 A copy of NYC Work Practice Standards for lead paint abatement can be found at ttp://www.nmic.org/nyccelp/govt.htm.
26 See www.nmic.org/nyccelp/Documents/101-vs-1.htm and
www.nmic.org/nyccelp/Documents/Comparison-between-Intro-101-and-LL38.htm.
27 Local Law 38 did not protect children against lead poisoning from lead dust.
28 Local Law 38 did not impose a duty on landlords to prevent lead hazards or to correct underlying defects
that caused paint to peel.
29 Landlords can obtain copies of sample notices at
http://www.nyc.gv/html/doh/pdf/win/win-wf013-appendixb.pdf. Instructions on abatement, hiring of EPA certified lead abatement contractors and inspectors and final inspection and dust sample results can be found
http://www.nmic.org/nyccelp/govt.htm.
30 See Rice, Steven J. Defending the Landlord: Maximizing Defense Opportunities in the Childhood Lead
Poisoning Case, Mealey’s Reporter.
31 Lamphear, Bruce P. et al. Low Level Environmental Lead Exposure and Children’s Intellectual Function:
An International Function Analysis, Environmental Health Perspectives, Vol. 113 No.7 (July 2005).
