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Some NYC Landlords Off the Hook for Lead Paint

ALBANY, N.Y. (CN) - Landlords have no duty to remove lead paint from apartments where children live part-time, according to New York's Court of Appeals.

The April 5 ruling dismisses a lawsuit against a landlord by the parents of a girl who lived most of the week with her grandmother in an apartment with lead paint. The girl, now 19 years old, suffers from brain damage due to lead poisoning.

Judge Eugene Pigott wrote in the opinion that New York City's lead-abatement regulation, Local Law 1, is worded specifically to mean a residence.

"Had the city intended to expand the meaning of the word 'reside' to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect," he wrote.

The plaintiff, referred to as Yaniveth R. in court documents, lived in a Bronx apartment until she was six years old, but was watched five days a week by her grandmother in an adjacent unit while her parents worked. From Monday to Friday, Yaniveth typically was in her grandmother's apartment from 9:30 a.m. until roughly 7:00 p.m.

When she was one years old, a routine doctor's checkup revealed that Yaniveth's blood had elevated lead levels, which was due to the lead paint in her grandmother's apartment. Yaniveth eventually developed brain damage and other cognitive problems.

The New York City Department of Health issued the landlord, LTD Realty Co., an order to abate the lead paint.

Yaniveth's parents sued LTD in 2006 for damages, relying on a New York City code that requires landlords to remove or cover lead paint from dwellings in which children under the age of six reside.

LTD argued that because Yaniveth lived with her parents in another unit, she technically did not "reside" within the grandmother's apartment.

In both the majority and dissenting opinions, judges cited various dictionaries to make the case that the girl actually resided in her grandmother's apartment.

The majority opinion referenced legal bible Black's Law Dictionary to define the word reside as "something more than mere physical presence and something less than domicile." It also referenced a ruling from 1908, which stated that a residence implied an intention to make the dwelling a permanent domicile.

Pigott noted that in cases of joint custody, a child may have a shared living situation that would require both apartments to undergo lead abatement. Not so in Yaniveth's case, however, he wrote.

"Although a person may reside at more than one location, spending 50 hours per week in an apartment with a non-custodial caregiver is insufficient to impose liability on a landlord under Local Law 1," he wrote.

In a dissenting opinion, Judge Eugene Fahey cited another dictionary, Webster's Third New International Dictionary, to define the word reside as to "have a settled abode for a time" and also to "settle oneself or a thing in a place."

Fahey said court precedent proved a person could have one domicile but reside at more than one location.

"Of course a child may abide or be stationed in more than one place," he wrote.

Fahey also noted that Local Law 1 was designed to protect children who may reside in more than one place, and that the majority opinion could eliminate the ability of children in joint custody living arrangements to recover damages from lead poisoning.

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