Lead Paint and Punitive Damages
Can a person living in an apartment who is not on the lease maintain an action against a landlord under the RLPHRA for failure to disclose lead-based paint hazards? No.
Is a landlord’s conduct in taking 81 days to complete lead abatement of an apartment after receiving a violation so egregious as to support a claim for punitive damages?Probably Not.
The Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), also known as Title X, is a Federally enacted statute which requires disclosure of lead-based paint hazards by a seller or lessor to a purchaser or lessee before they purchase or lease housing. Such disclosure includes, in pertinent part, the presence of any known lead-based paint or hazard and a lead hazard information pamphlet (42 USC §4852d[a][A] and [B]).
Any person who knowingly violates any provisions of the statue shall be jointly and severally liable to the purchaser or lessee in an amount equal to three times the amount of damages incurred by such individual (42 USC §4852d[b]).
In the recent Second Department case of Brown v. Maple3, LLC, 2011 WL 3715534, decided on August 23, 2011, the Court dealt with the issue of whether a lessee’s adult daughter and infant grandchild have standing to assert a cause of action under the RLPHRA for injuries sustained as a result of a landlord’s alleged failure to disclose the presence of known lead-based paint hazards. The facts are very similar to the types of cases we generally see in New York City. The adult daughter was living in her mother’s apartment with her infant child. The child was allegedly exposed to lead-based paint from peeling paint in the apartment. The grandmother testified that she made numerous complaints to the superintendent about peeling paint. However, it appears that nothing was done until the building received a violation from the Department of Health. Over the course of 81 days, the landlord made efforts to abate the apartment and eventually all violations were cured.
Neither the adult daughter nor the infant grandchild were on the lease when the alleged exposure occurred to the grandchild. Notwithstanding that the adult daughter was paying the rent, the Second Department held that both plaintiffs lack standing to assert a cause of action under the RLPHRA because the statute limits recovery for a violation of its provision only to a “purchaser or lessee”. Since the plaintiffs were not on the lease, they could not maintain an action under the RLPHRA.
With regard to punitive damages, the landlord had been issued a violation on December 29, 2005 and was directed to complete abatement of the apartment within five days. In January, the landlord commenced abatement procedures. By February 7, 2006, (40-days later) all violations still remained. By mid-February through mid-March partial violations still remained. On March 22, 2006 (81-days after the initial violation) a final inspection revealed that all violations had been cured.
In discussing a claim for punitive damages, the Second Department stated that “An award of punitive damages is warranted where the conduct… evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness”. Here, the landlord was entitled to summary judgment as a matter of law dismissing the claim for punitive damages. The Second Department found that the landlord had commenced abatement procedures within a reasonable time after receiving the violation and therefore its conduct was not “so gross, wanton, or willful, or of such high moral culpability, as to warrant an award of punitive damages”.
The decision in Brown will limit claims against a landlord in lead-based paint exposure cases. However, this decision does not impact the applicability of Local Law 1 (Administrative Code of the City of N.Y. §§27-2056.3 and 27-2056.18), which applies to pre-1960 buildings and some post-1960 – pre-1978 buildings located in New York City. Local Law 1 has its own notice requirements and applies to children living in the apartment even if they are not on the lease. Since Local Law 1 does not apply to municipalities outside the City, the Brown case will have a bigger impact on plaintiffs as they will have to rely upon common law claims.
The Brown case also sets out parameters for seeking to have a plaintiff’s claim for punitive damages dismissed, as a matter of law. When adjusting these cases, it will be important to determine what efforts the landlord took to complete the abatement of an apartment. It appears from Brown that as long as the landlord began work soon after receiving a violation, even if the work took several months to complete, this will not rise to the level of a punitive damages claim.