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City Council Reacts to Lead Paint Ruling by Court of Appeals

lead paint

Council Member Daniel Dromm. Image Credit: William Alatriste for the City Council.

City Council Members introduced a bill to define “residency” in the City’s Lead Law in response to a decision by the Court of Appeals. In April 2016, the New York State Court of Appeals found that a landlord has no duty to remove lead paint from residences where children six-years or younger may spend time when the child does not live in the apartment. The Court found that a child spending in excess of 50 hours a week in an apartment did not trigger the landlord’s duty. Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186 (N.Y. Apr. 5, 2016).

Six-year-old Yaniveth lived with her parents, but stayed with her paternal grandmother in the grandmother’s rented apartment five days a week for a total of 50 hours per week while her parents worked. In January 1998, at one year of age, Yaniveth was found to have elevated levels of lead in her blood. In 2006, Yaniveth’s mother brought a lawsuit against the owner of the grandmother’s apartment based on the New York City led abatement law. Yaniveth’s mother claimed that the owner had breached its duty to abate the lead in the apartment.

The Administrative Code imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age or under resides. Yaniveth relied on the fact that she was present in the apartment for 50 hours a week. The owners defended by arguing that the child did not reside in the apartment and was not entitled to the protections of the local law.

The Court of Appeals agreed with the owner that duties under the City’s lead-paint abatement law were only triggered when a child six year old or younger actually resided in the apartment. The Court reasoned that while it is possible to reside in more than one location, spending 50 hours per week in an apartment with a noncustodial caregiver is insufficient to meet the requirements of the local law. The Court cited multiple definitions of the word “reside” and concluded that residence implies some degree of permanence and an intention to remain. Here, the parents admitted that the child lived with its parents, that they had no intention for her to live with her grandmother, and that the child was on the grandmother’s premises solely for the purpose of child care.

In response to that decision, Council Members Daniel Dromm, Rafael Salamanca, Jr., and Inez Barron jointly sponsored Introduction 1427-2017. The bill would add to the Administrative Code an explicit definition to reside—“being present in a dwelling unit for 15 or more hours in a typical week.” The bill has been referred to the Committee on Housing and Buildings, and a hearing should be scheduled in the following weeks.

Yaniveth R. v. LTD Realty Co., 27 N.Y.3d 186 (N.Y. Apr. 5, 2016).

By: Jonathon Sizemore (Jonathon is the CityLaw Fellow and a New York Law School Graduate, Class of 2016).