Claim for Lead Exposure Permitted by Appellate Division to Proceed
The First Department of the New York Appellate Division has recently issued a decision in a claim for damages related to alleged lead poisoning. The judges upheld the trial court’s decision denying the defendants’ motion to dismiss the plaintiff’s claims, permitting the claim to move forward toward trial. Learn more about their decision and the lead exposure claim to proceed below, and contact a New York lead paint and toxic tort defense attorney with additional questions.
The published case, titled D.H. by Maria R. v. New Latham Hotel Corp., was based on alleged lead poisoning that occurred during a stay at a facility for homeless women and children under 13 years of age, where the plaintiff and her mother spent six months between 2008 and 2009. The infant plaintiff’s mother, Maria R., brought the claim on behalf of her child, D.H. The location of the claimed lead poisoning was a shelter being operated under a contract with the New York City Department of Homeless Services by Icahn House East, LLC (“Icahn House”) and the Children’s Rescue Fund. New Latham Hotel Corp.(“New Latham”) owned the building in which the shelter was located, and it was managed by 4 East 28th Street Corp. (“4 East”).
Mother claims daughter suffered lead exposure during shelter stay
Maria R. moved into the shelter with her daughter on July 25, 2008, and moved out on January 25, 2009, during which time Maria R. alleged that her daughter was exposed to lead. She filed a claim with the Supreme Court in Bronx County based on her daughter’s lead-exposure-related injuries against Icahn House, New Latham, and 4 East. New Latham filed a motion for summary judgment to dismiss the claim. New Latham argued that it should not face liability for the girl’s alleged lead poisoning, as it had not received actual or constructive notice of the fact that a child was living in the room in its hotel.
Owner attempts to dismiss based on lack of notice
During a hearing on the motion, the hotel manager of 4 East testified to being aware that the hotel was being used by Icahn as a shelter for women and children under age 13. The manager also testified to knowing that the units leased by Icahn would be used to house children, that lead paint was hazardous, and that the rooms leased to Icahn were cleaned and inspected for lead. The manager also testified that New Latham was the owner of 4 East and had assigned 4 East to operate the building being used as a shelter. On this basis, the court concluded that 4 East was aware of the presence of children in the building. Additionally, since the court ruled that New Latham and 4 East were not legally separate entities, the court found that New Latham was on notice of the presence of children, such as D.H., in the hotel. The motion for summary judgment was denied.
New Latham had also filed a motion to dismiss a cross-claim for indemnification filed by Icahn House. The contract between Icahn House and New Latham indicated that failing to keep the rooms housing homeless families up to code would amount to a breach of contract, resulting in New Latham being obligated to indemnify and hold harmless Icahn for any injuries resulting from code violations in the rooms. In this case, the court concluded that there was no evidence that D.H.’s injuries didn’t result from a failure to keep the room up to code. In other words, it was 4 East’s failure to remediate the lead issue that had caused D.H.’s injuries, and as such, New Latham was legally obligated to indemnify Icahn House should the court find that D.H. had suffered lead poisoning at the hotel.
For seasoned, knowledgeable, and experienced legal counsel on an insurance defense, toxic tort, or lead exposure case in New York, contact the Islip offices of Richard A. Fogel at 516-721-7161.