State Court Paints New Face On Lead Poisoning Cases
By Jill Grossman

Tenants in one- and two-family homes in New York City now have a better chance of holding their landlords accountable when their children suffer from lead poisoning, thanks to a case decided Nov. 15 by the New York State Court of Appeals.

In its decision, the court wrote that lawsuits may be sent to a jury if the property owner knew his building was constructed before 1960, was aware that paint was peeling, and knew his tenants had young children. Until now, appellate courts outside of New York City would throw out such a case unless a tenant had given a landlord formal notice that lead paint existed in his apartment.

"This was a major victory for children throughout New York State," said Peter Danziger, attorney for James and Sallie Chapman, whose one-year-old son, Jaquan, was poisoned from eating lead paint soon after the family moved into its Albany apartment in 1994. The Chapmans are suing their landlord, Dennis Silber, for about $10 million.

In New York City, where it is estimated that more than 35,000 children under 6 have dangerous levels of lead in their blood, a law that has been on the books since 1982 already holds landlords of bigger buildings to these higher standards. In buildings built before 1960 with three or more units, property owners must inspect any apartment housing a child under age six.

Since the ruling applies to buildings of all sizes, tenants in one- and two-family homes may finally be able to get their days in court. "This changes the dynamic quite a lot," said Matthew Chachere, an attorney with the New York City Coalition to End Lead Poisoning.

In an e-mail sent out after the ruling, Chachere noted that the lower court had ruled that the landlords could not be responsible for the lead poisoning of the child because they did not have "actual" knowledge of lead-paint hazards, even though the landlords knew most buildings of similar age in the area had lead paint, of its hazards to children, that there were young children living in the dwellings, and that there was peeling or deteriorated paint in the premises. That and similar court decisions, he wrote, "encouraged landlords not to know about lead paint hazards in leased property housing small children--because if they know, they will have to act."

Even Silber’s attorney admits the ruling was not all bad. While disappointed and concerned that things could get expensive for property owners, Derek Hayden said at least the new guidelines will give his clients a better idea of what they are responsible for. As things stood up to now, said Hayden, landlords "didn’t know what they had to do or who they had to hire."

Danziger said he hopes the decision makes it clear to his own clients what they can do. "If parents don’t investigate, children will get nothing," said the Albany-based attorney, who has 100 lead cases pending around the state Meanwhile, parent advocates in New York City await another court ruling that they hope will make landlords even more liable for lead poisoning in young tenants. An amendment to the law passed by the City Council in 1999, called Local Law 38, requires that parents explicitly inform the building owner within a month after moving in that a child is living in the apartment. Chachere and others say this places too much burden on the parents. Last fall, Judge Louis York of the state Supreme Court deemed the law null and void, a decision the city is currently appealing.

Reprinted with permission from City Limits Weekly.