        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

390
CA 13-01737
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


HECTOR ORTIZ AND MARIA SANTOS, FORMERLY KNOWN
AS MARIA ORTIZ, AS PARENT AND NATURAL GUARDIAN
OF JAZMINE CASADO, AN INFANT UNDER THE AGE OF
EIGHTEEN, PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

GARY P. LEHMANN, INDIVIDUALLY AND DOING BUSINESS
AS HERITAGE DEVELOPMENT CORPORATION,
DEFENDANT-RESPONDENT,
GENESEE VALLEY GROUP, LTD., DEFENDANT-APPELLANT,
AND HERITAGE DEVELOPMENT CORPORATION, DEFENDANT.


SCHNITTER CICCARELLI MILLS PLLC, EAST AMHERST (PATRICIA S. CICCARELLI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

LIPSITZ & PONTERIO, LLC, BUFFALO (ZACHARY JAMES WOODS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.

WOODS OVIATT GILMAN LLP, ROCHESTER (GRETA KATRIN KOLCON OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (John J.
Ark, J.), entered January 11, 2013. The order denied the motion of
defendant Genesee Valley Group, Ltd. for summary judgment seeking
dismissal of the plaintiffs’ claims against it and dismissal of the
cross claim asserted by defendant Gary P. Lehmann, individually and
doing business as Heritage Development Corporation.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by plaintiff Hector Ortiz and Jazmine
Casado, an infant under the age of 18, between 1994 and 1997 as a
result of exposure to lead paint while residing in a rental unit in
Rochester that was owned by defendant Heritage Development Corporation
(Heritage) and managed by defendant Genesee Valley Group, Ltd. (GVG).
At all times relevant, defendant Gary P. Lehmann was the president of
Heritage and one of two shareholders. During the occupancy of the
rental unit by Hector and Jazmine, Heritage retained GVG to provide
real property management services. In April 1994, the Monroe County
Department of Health (DOH) issued a lead paint violation notice to
Heritage and GVG. On June 23, 1994, following abatement by GVG in May
                                 -2-                           390
                                                         CA 13-01737

1994, DOH confirmed that lead paint violations at the unit had been
“corrected.” However, blood lead level tests performed on Hector and
Jazmine on June 7, 1994 indicated increases from tests conducted prior
to the abatement process performed by GVG.

     In a single cause of action, plaintiffs asserted claims for
negligent ownership and maintenance of the premises, as well as
negligent abatement of the lead paint hazard. GVG moved for summary
judgment dismissing the complaint and Lehmann’s cross claim for
contribution and/or indemnification on the ground that it did not own
or exclusively control the rental unit or perform any affirmative act
of negligence with respect thereto. Supreme Court denied the motion.

     Contrary to GVG’s contention, the court properly denied that part
of its motion for summary judgment dismissing plaintiffs’ claim based
on nonfeasance and Lehmann’s cross claim. There are issues of fact
concerning the scope and extent of GVG’s control over the property,
which if “complete and exclusive” could render GVG liable for
nonfeasance in abating the lead-based paint condition (see Ortiz v Gun
Hill Mgt., Inc., 81 AD3d 512, 513; German v Bronx United in Leveraging
Dollars, 258 AD2d 251, 252).

     Also contrary to GVG’s contention, the court properly denied that
part of its motion seeking summary judgment dismissing the claim for
negligent abatement of the lead-based paint hazard. A managing agent
may be liable for affirmative acts of negligence, such as negligent
lead paint abatement, notwithstanding a lack of ownership or exclusive
control (see Jones v Park Realty, 168 AD2d 945, 946, affd 79 NY2d
795), and GVG failed to meet its initial burden of establishing that
it performed no affirmative acts of negligence in its paint abatement
efforts. Even assuming, arguendo, that GVG met its initial burden
with respect to that claim, we conclude that the evidence submitted by
plaintiffs raised triable issues of fact whether GVG took reasonable
measures to abate the lead paint hazard after it received actual
notice thereof and whether plaintiffs sustained additional injuries
after GVG received such notice (see Pagan v Rafter, 107 AD3d 1505,
1506-1507). We therefore conclude that the court properly denied
GVG’s motion in its entirety.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
