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NEW YORK CITY LEAD LITIGATION BULLETIN FIRST DEPARTMENT ISSUES EXPANSIVE RULING ON THE SCOPE OF PERMISSIBLE DISCOVERY IN LEAD EXPOSURE CASES

A landlord must produce all lead paint violations in its possession for an entire building – not merely those pertaining to the apartment in which the plaintiff resided – and such evidence may be admissible at trial to establish notice and the lack of reasonable care of the landlord. That was the decision of the Appellate Division, First Department, in its recent decision in Z.D. v. M.P. Management, et al., (available here at pp. 4-7) rendered May 23, 2017 after an appeal from the Supreme Court, Bronx County which denied the plaintiff access to this discovery. The question was a matter of first impression in the First Department.

The issue, succinctly stated, is whether an allegation of exposure to lead in one unit of a large, multiple occupancy building, can require the landlord to produce all lead violations in the entire building, and whether such evidence can be used at trial as evidence of negligence of the defendant and notice of the hazard. The obligation of a defendant landlord to disclose lead paint violations in the subject building, and the admissibility of such evidence at trial, is often a hotly disputed issue in lead cases. But it is rarely litigated on full briefing, and has never been addressed by the First Department.

The Second Department, in its 1997 decision in Rodriguez v. Amigo, 244 A.D.2d 323 (2d Dept. 1997) ruled that such evidence is both discoverable and may be admissible at trial. The First Department adopted that reasoning in Espinal v. 570 W. 156th Assoc., 258 A.D.2d 309 (1999), but that case involved defective windows, not lead paint exposure. Arguments exist as to why Espinal is distinguishable from a lead exposure action.

In Z.D., the plaintiff moved the Bronx County Supreme Court to compel disclosure of all New York City Department of Housing Prevention and Development (“HPD”) and New York City Department of Health lead paint violations received by and in the possession of the two defendants, each of which separately owned buildings in which the infant plaintiff resided. The defendants resisted the disclosure of these documents, arguing the discovery the plaintiff was seeking – which was for all violations in the entire buildings – were irrelevant, overbroad, and not reasonably calculated to lead to the disclosure of admissible evidence. The Supreme Court agreed and denied the plaintiff’s motion. That decision was appealed to the First Department, which reversed.

The First Department explicitly ruled, for the first time, that “evidence of lead paint hazards in one part of a building may be relevant to the issues of defendants’ notice of the condition, duties and obligations to the plaintiffs.” Furthermore, “[k]nowledge of a dangerous condition in one portion of the structure may have imposed upon the owners an ‘obligation to examine’ other portions of the structure for defects arising from the same cause, and to ascertain what was ascertainable with the exercise of reasonable care.” See attached.

The Court also rejected the defendants’ argument that the plaintiff’s ability to obtain this information from a public source, such as the HPD, extinguishes their obligation in discovery to produce these records. The Court held that “[t]he fact that plaintiffs may have been able to access some evidence of lead paint violations in the building from HPD does not preclude plaintiffs from seeking these records directly from defendants in discovery.” The Court therefore unanimously reversed the holding and ordered the defendants to produce these documents.

The plaintiffs in Z.D. v. M.P. Management, et al. were represented by Daniel J. Woodard and Ari L. Taub, of Phillips & Paolicelli, LLP.

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