First published: Mar 2024
The Damage From Lead
TAKEAWAY Particularly in buildings built prior to 1960, owners have an affirmative statutory duty to prevent or abate lead poisoning of children 7 years of age or younger. Boards cannot discriminate in renting to such applicants. Boards are well-advised to vigilantly be aware of who is occupying the premises. They cannot rely upon indemnification by the occupants or the representation that there are no children residing there. It is also important to train and require managing agents, doormen, lobby staff and other staff members to report the activity of tenants, guests, visitors and contractors that may be conducting improper activities and occupations in the building. The owners’ and managing agents’ notice of such activities, both licit and illicit, may be imputed with knowing and permitting such activities. They may be liable for the consequences, civilly and possibly criminally.
E.S.ET AL v. WINDSOR OWNERS CORP. ET AL
What Happened In July 2016, Martina Sersch sublet her apartment at 5 Tudor City Place, a large co-op with over 750 units, to Aminata Sy and her 18-month-old child. However, Sersch never obtained the co-op’s consent to sublet even though its proprietary lease required it, and she never returned the signed sublease form to the co-op. That form included the standard lead and lead paint notice plus the box, checked off by Sersch, acknowledging that a child under the age of seven years resided in the unit. The form also included language requiring Sersch to hold the co-op harmless from all liability arising from injury due wholly or in part to any act of omission of the lessee.
The board learned of the unapproved sublet in May 2017 and it served Sersch with a notice to cure. She agreed to pay $2158.77 as a sublet fee plus an illegal sublet charge of $1000 on the condition that the illegal occupant be allowed to stay. Later that month, routine blood tests revealed that Sy’s 18-month infant had lead poisoning. The NYC Department of Health (“DOH”) inspected and determined that there were numerous areas of the apartment that contained peeling and chipping paint that contained hazardous levels of lead, and ordered Sersch to remove and abate the lead paint, which she did. Despite the remediation, Sy sued the co-op, Sersch, and the co-op’s management company.
You Should Know Local Law 1 obligates owners, such as the co-op, to prevent reasonably foreseeable injury to children 7 years of age or younger from peeling lead paint in multiple family dwellings built before January 1, 1960. It was undisputed that if the owners are aware of a child’s presence they were obligated to ameliorate the lead condition. This duty exists even though the owner, the co-op, was never told about a sublease.
In Court Sy successfully moved for summary judgment against Sersch and the co-op corporation. Sy claimed, and the court agreed, that the co-op knew about the infant because she and her child repeatedly used the building’s automated management system with her own name and picture; she introduced herself and child to the doorman as the new tenant in the apartment; and she had daily interactions with agents of the management company regarding the apartment she was occupying, some of which were in the presence of her child. She claimed there was no question of the fact that the owners were aware or should have been aware of the child living in the building. The co-op filed a cross claim against Sersch for indemnity, but was unsuccessful. The court said that the co-op may not be completely stopped from getting some compensation from Sersch if it’s found that she had some responsibility for the problem. The co-op took this to the Appellate Division, and there the court strictly applied Local Law 1 and the NYC Administrative Code, finding that the co-op corporation was responsible even though it didn’t see, or approve, a sublease. COUNSEL for the co-op and management company JEREMY CANTOR, WILLIAM PARRA, CHRISTOPHER JOHNSON Gallo Vitucci Klar/ for Martina Sersch MATTHEW SIMON Matt Simon Law / for Aminata Sy and her child BRIAN ISAAC Pollack Pollack Isaac & Decicco/ Justice Lyle E. Frank
