Rodriguez v. Trakansook

Appellate Division of the Supreme Court of New York

Rodriguez v. Trakansook

67 A.D.3d 768, 887 N.Y.S.2d 860

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 10, 2009

StatusPublished

Cited by12 cases

This text of 67 A.D.3d 768 (Rodriguez v. Trakansook) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rodriguez v. Trakansook, 67 A.D.3d 768, 887 N.Y.S.2d 860 (N.Y. Ct. App. 2009).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), dated July 9, 2008, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiffs allegedly suffered lead poisoning as a result of exposure to lead paint while residing in a two-family house owned by the defendant. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the defendant established that she had no notice of the hazardous condition. We affirm.

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to rem[769]*769edy, the hazardous condition (see Chapman v Silber, 97 NY2d 9 [2001]; Vidal v Rodriquez, 301 AD2d 517, 517-518 [2003]; McCabe v Hans, 298 AD2d 565, 566 [2002]; Batts v Intrebor, Inc., 297 AD2d 692 [2002]).

The defendant met her initial burden of demonstrating that she had no prior actual or constructive notice of a dangerous lead-paint condition (see Vidal v Rodriquez, 301 AD2d at 518; McCabe v Hans, 298 AD2d at 565-566; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In response, the affidavit of the injured plaintiffs’ mother was insufficient to raise a triable issue of fact, because it constituted an attempt to avoid the consequences of her earlier deposition testimony by raising feigned issues of fact (see Karwowski v New York City Tr. Auth., 44 AD3d 826, 827 [2007]; Stancil v Supermarkets Gen., 16 AD3d 402 [2005]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]; Bongiorno v Penske Auto. Ctr., 289 AD2d 520, 521 [2001]; Bloom v La Femme Fatale of Smithtown, 273 AD2d 187 [2000] ). Mastro, J.P., Balkin, Eng and Leventhal, JJ., concur. [See 2008 NY Slip Op 32077(U).]

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), dated July 9, 2008, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiffs allegedly suffered lead poisoning as a result of exposure to lead paint while residing in a two-family house owned by the defendant. The Supreme Court granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the defendant established that she had no notice of the hazardous condition. We affirm.

To establish that a landlord is liable for a lead-paint condition, a plaintiff must demonstrate that the landlord had actual or constructive notice of, and a reasonable opportunity to rem[769]*769edy, the hazardous condition (see Chapman v Silber, 97 NY2d 9 [2001]; Vidal v Rodriquez, 301 AD2d 517, 517-518 [2003]; McCabe v Hans, 298 AD2d 565, 566 [2002]; Batts v Intrebor, Inc., 297 AD2d 692 [2002]).

The defendant met her initial burden of demonstrating that she had no prior actual or constructive notice of a dangerous lead-paint condition (see Vidal v Rodriquez, 301 AD2d at 518; McCabe v Hans, 298 AD2d at 565-566; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In response, the affidavit of the injured plaintiffs’ mother was insufficient to raise a triable issue of fact, because it constituted an attempt to avoid the consequences of her earlier deposition testimony by raising feigned issues of fact (see Karwowski v New York City Tr. Auth., 44 AD3d 826, 827 [2007]; Stancil v Supermarkets Gen., 16 AD3d 402 [2005]; Christopher v New York City Tr. Auth., 300 AD2d 336 [2002]; Bongiorno v Penske Auto. Ctr., 289 AD2d 520, 521 [2001]; Bloom v La Femme Fatale of Smithtown, 273 AD2d 187 [2000] ). Mastro, J.P., Balkin, Eng and Leventhal, JJ., concur. [See 2008 NY Slip Op 32077(U).]

Cite This Page — Counsel Stack

Bluebook (online)

67 A.D.3d 768, 887 N.Y.S.2d 860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-trakansook-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack