MCWG Obtains Dismissal of Lead Paint Claim

In Paz v. New Latham Hotel Corp., et. al., No. 102823/05, slip op. (N.Y. Cty., Madden, J., April 5, 2011), the infant plaintiff sued to recover damages for alleged permanent brain injuries resulting from exposure to lead paint while residing in two separate buildings, one of which was owned by MCWG's client, DBPB Holding Corp. ("DBPB").
 
DBPB maintained that the infant plaintiff could not have been injured while residing in its building since no lead hazards existed during the infant's tenancy notwithstanding positive lead paint test results from a private company retained by plaintiff's counsel.  The Supreme Court held that that the plaintiff had presented insufficient evidence "to raise a triable issue of fact as to whether plaintiff's injuries were caused by conditions in [DBPB's] apartment" and that DBPB had submitted sufficient evidence, including documents and deposition testimony, together with the expert affidavit of Dr. Vincent Coluccio, to make out a prima facie showing of entitlement to judgment as a matter of law.
 
The lead testing of the apartment that was performed by plaintiff's expert, Professional Environmental Services, Inc., found only two out of 141 surfaces tested positive for lead, and those two samples came from the metal entrance door to the apartment.  According to Dr. Coluccio, Doctor of Public Health, and an environmental health consultant, the two surfaces that tested positive for lead -- the metallic apartment entrance door and metallic door casing -- were rated '"fair," indicating that 'there was no visible evidence of deteriorated lead-based paint hazards posed by these surfaces." 
 
Since "fair" surfaces are not considered a hazard under HUD Guidelines, the court agreed with and adopted Dr. Coluccio's opinion that testing performed by plaintiff's expert, along with all the other evidence in the case, established that plaintiff's alleged injuries "were not caused by, or contributed to by, any conditions existing in the [DBPB] apartment."  No party submitted any expert affidavit to refute the opinions of Dr. Coluccio, and the court dismissed a footnote in plaintiff's expert, Dr. John F. Rosen's, affidavit that the infant plaintiff was exposed to lead at DBPB's residence as a "vague and conclusory assertion, unsupported by any facts [and] is unavailing."  Defendant DBPB was therefore entitled to judgment as a matter of law dismissing the claim.

DBPB was represtend by John F. Parker of Mound Cotton.