VALDEZ v. MGS REALTY AND MANAGEMENT CORPORATION, (S.D.N.Y. 2000)

SHIRLEY WOHL KRAM, UNITED STATES DISTRICT JUDGE.

In this action seeking judgment and recovery for various torts, and for violations of federal, state, and local laws, all arising out of infant plaintiffs Sandy Valdez's and Yhanelly Valdez's and their mother Maria Alvino's (collectively, the "Plaintiffs") ingestion of lead-based paint chips and dust while residents of 2835 Bainbridge Avenue, Apartment 2E, Bronx, New York ("the Premises"), the parties make various motions addressed to Plaintiffs' amended complaint. For the reasons set forth below, all motions are denied, except for the City of New York's (the "City") motion for summary judgment, which is granted in part.

The Court will alternately refer to the Premises and the building in which the Premises is located (the "Building").

BACKGROUND

The facts recited below are taken from the amended complaint, unless otherwise indicated.

Plaintiff Maria Alvino ("Alvino") moved into the Premises in 1991. At that time, and again in 1995, the Premises were painted by the building's owner. See Deposition of Maria Alvino, taken October 16, 1997 ("Alvino Tr.") at 44, 57, attached to Plaintiffs' Notice of Cross-Motion as Exh. "2." Plaintiff Sandy Valdez was born on March 3, 1992, and his sister, plaintiff Yhannelly Valdez, was born on December 3, 1993. With the exception of a two month period in 1996, both children have lived with their mother in the Premises for their entire lives.

Defendant Bronx Properties, LLC ("Bronx Properties") has owned the Premises since November 28, 1995. See Deposition of Robert Baranowski, taken October 29, 1997 ("Baranowski Tr.") at 12, attached to Plaintiffs' Notice of Cross-Motion as Exh. "3." Before Bronx Properties purchased the Building, it was owned by MGS Realty Management, Corp. ("MGS"). During MGS's ownership, the Federal Home Loan Mortgage Corporation commenced a foreclosure action and on August 16, 1994, Federal District Court Judge John S. Martin ("Judge Martin") appointed defendant Joel Gendels ("Gendels") Receiver of the Building. See Deposition of Joel Gendels, taken November 18, 1997 ("Gendels Tr.") at 5-6, attached to Plaintiffs' Notice of Cross-Motion as Exh. "1." While Gendels served as Receiver, defendant JMG Management Plus, Inc. ("JMG") managed the Building on his behalf.

Plaintiffs allege that, beginning in November, 1995, they were diagnosed with elevated blood lead levels, or "lead poisoning." Specifically, Plaintiffs allege that on November 15, 1995, Sandy Valdez was diagnosed as having an elevated blood lead level of 27 ug/dL. Subsequent testing, on December 4, 1995, revealed a blood lead level of 23.9 ug/dL. In addition, on January 5, 1996, Yhanelly Valdez was diagnosed as having an elevated blood lead level of 26.9 ug/dL. Plaintiffs allege, inter alia, that "[o]n or before November 15, 1995, defendant owners knew or should have known about the lead-based paint hazards in plaintiffs' apartment." Amended Complaint, ¶ 23.

On December 4, 1995, after being notified that Sandy Valdez had a blood lead level above 20 ug/dL, the City's Department of Health ("DOH") inspected the Premises. See City's Memo. at 4. DOH inspectors found that thirty surfaces with peeling paint at the Premises contained lead, and an Order to Abate was subsequently sent to Gendels directing him to correct the violation. See id. Plaintiffs continued to live in their apartment until February 1, 1996, when they temporarily moved into a "safehouse." See id. While plaintiffs were living at the safehouse, the Premises were repaired and its walls were covered with sheetrock. See Baranowski Tr. at 24-25.

New York City Health Code § 173.13(d)(2) requires the DOH to "order the removal of [lead-based] paint" when it is put on notice that lead paint of a certain content is present in an apartment and "the blood-lead level of any person residing in such dwelling is 20 micrograms per deciliter or higher." 24 N Y Comp. Codes R. Regs. § 173.12[d][2]. According to the City, a report of a blood level of 20 ug/dL or above automatically triggers a home inspection by the DOH. See Memorandum of Law in Support of the City of New York's Motion to Dismiss Plaintiff's Complaint ("City's Memo."), at 3, n. 2.

Plaintiffs' brought the instant action in July 1996. Plaintiffs' amended complaint pleads seven causes of action. The first cause of action alleges that the City is a public housing authority ("PHA") that receives Community Development Block Grant ("CDBG") funds from the United States Department of Housing and Urban Development ("HUD"). Plaintiffs claim that the City, as a CDBG grantee and under the Lead-based Paint Poisoning and Prevention Act, 42 U.S.C. § 4822 ("LPPPA"), was obligated to abate the Premises of lead, and failed to do so. Plaintiffs' second cause of action is against the City for failure to enforce various local laws. Plaintiffs' third cause of action, also against the City, is brought under the Civil Rights Act of 1937, 42 U.S.C. § 1983, and alleges that the City violated the LPPPA under the color of law. The remaining causes of action are against all defendants, for negligence, breach of the implied warranty of habitability, nuisance, and negligent or intentional infliction of mental distress.

On September 26, 1996, by stipulation and pursuant to Federal Rule of Civil Procedure 41(a), plaintiffs' claims against defendant Federal Home Loan Mortgage Corporation were dismissed.

Pending before the Court are (1) the City's motion, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, to dismiss the amended complaint; (2) Gendels' and JMG's motion, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, for summary judgment and dismissal of the amended complaint; (3) Bronx Properties' motion, pursuant to Federal Rule of Civil Procedure 56, for summary judgment and dismissal of all cross-claims; and (4) Plaintiffs' crossl-motion, pursuant to Federal Rule of Civil Procedure 56, for summary judgment on the issues of liability against all defendants.

DISCUSSION

I. Jurisdiction

As a threshold matter, the Court notes that Plaintiffs have abandoned their federal claims. See Plaintiffs' Memorandum of Law in Opposition to Motions by Defendants Seeking Summary Judgment Dismissal and in Support of Plaintiffs' Motion for Partial Summary Judgment on the Issue of Liability ("Plaintiffs' Memo.") at p. 5. The amended complaint presented federal claims against the City, but Plaintiffs have since "concede[d] that at trial they will not be able to prove the expenditure of any federal funds at any of the buildings involved herein." Plaintiffs' Memo. at 29, n. 2. As a result, Plaintiffs state that "the City's motion to dismiss plaintiffs' federal claims should be granted." Id. Accordingly, the City's motion for summary judgment is granted with respect to the first and third causes of action.

Because Plaintiffs have voluntarily withdrawn the federal claims over which this Court had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over the state claims and remand the case to state court. See 28 U.S.C. § 1367(c)(3) ("Section 1367(c)(3)"). In determining whether to exercise supplemental jurisdiction, the Court must consider four factors: judicial economy, convenience to the parties, fairness, and comity. In re Porges, 44 F.3d 159, 163 (2d Cir. 1995) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988)). In a typical case, a federal court will decline to retain jurisdiction where it already has dismissed all claims over which it had original jurisdiction, especially if this dismissal occurs early in the life of the litigation. See, e.g., Janneh v. Regency Hotel, Binghamton, 870 F. Supp. 37, 41 (N.D.N.Y. 1994); Hotel Syracuse, Inc. v. Young, 805 F. Supp. 1073, 1086 (N.D.N.Y. 1992). The instant case, however, presents circumstances warranting a different result.

On balance, the four considerations relevant to the determination of supplemental jurisdiction support retention of jurisdiction. Convenience to the parties is best served in retaining jurisdiction and addressing the parties' various motions. The motions have been fully briefed and will be addressed in this Opinion and Order. Fairness is also best served by retaining jurisdiction. This case has a long history of conferences, motion practice, and negotiations since the first complaint was filed in 1996. Further delay at this point would be unfair to all parties. Likewise, judicial economy is best served by retaining jurisdiction over this case because doing so will avoid unnecessarily duplicative and inefficient state law processes. Comity to state courts is not an issue here. Accordingly, the Court exercises its discretion under Section 1367(c)(3) to retain supplemental jurisdiction over Plaintiffs' remaining claims against the defendants.

II. Conversion of Rule 12(b)(6) Motions

Where affidavits and exhibits in addition to the pleadings are presented to and not excluded by the Court, the Court must convert the Rule 12(b)(6) motion into a motion for summary judgment. See Fed.R.Civ.P. 12(b); Great American Ins. Co. v. M/V Handy Laker, Nos. 96 Civ. 8737, 97 Civ. 74000, 1999 WL 1206718 at *2 (S.D.N.Y. Dec. 16, 1999) ("Great American Ins. Co."). However, a district court may not convert a motion under Rule 12(b)(6) into a Rule 56 motion without sufficient notice to the opposing party and without giving the non-movant an opportunity to respond. See Groden v. Random House, Inc., 61 F.3d 1045, 1052 (2d Cir. 1995); Gronne v. Apple Bank For Savings, No. 98-Cv-6091, 2000 WL 298914 at *1 (E.D.N.Y. Feb. 14, 2000) ("Gronne"). "This is simply an application . . . of the principle that parties are entitled to a reasonable opportunity to present material pertinent to a summary judgment motion." Great American Ins. Co., 1999 WL 1206718 at *2. Therefore, "[t]he essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings." In re G. A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied sub nom. M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015 (1986).

Here, defendants Gendels and JMG, and the City, moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Gendels' and JMG's Notice of Motion; City's Notice of Motion. Plaintiffs responded by cross-moving for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. See Plaintiffs' Notice of Motion. Furthermore, all parties' memoranda of law refer to various exhibits, including affidavits and transcripts of depositions. Therefore, no party can fairly claim surprise by the Court's decision to convert the motions made under Rule 12(b)(6) into motions for summary judgment. Accordingly, the Court shall decide the present motions according to the well-established standard for motions brought pursuant to Rule 56.

III. Standard of Law

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing to an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2553-54 (1986). The nonmoving party must then come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial," Celotex Corp. v. Catrett, 477 U.S. at 322.

The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). But the Court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12. In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no Ugenuine issue for trial.U" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1593 (1969)).

IV. Gendels' and JMG's Motion

A. Plaintiffs' Failure to Obtain Leave of the Court

Gendels and JMG submit that Plaintiffs did not obtain leave of the Court prior to commencement of the action against them. Gendels and JMG argue that "where, as here, a receiver has been discharged from any and all liability, he or she may not be sued unless the appointing court vacates its Order and grants leave to same." Defendants Gendels' and JMG's Memorandum of Law ("Gendels/JMG Memo.") at 4 (citing Gadson v. 1340 Hudson Realty Corp., 180 A.D.2d 582 (N.Y.App.Div. 1992)). New York law does require authorization from the appointing court prior to commencing any suit against a receiver or similar property administrator. See, e.g., Copeland v. Salomon, 451 N.Y.S.2d 682, 687 (N.Y. 1982). The rule is different, however, where, as here, the receiver was appointed by a Federal District Court. See Federal Home Loan Mort. Corp. v. 550 Riverside Owners Corp., No. 90 Civ. 7873, 1991 WL 258779, at *2 (S.D.N.Y. 1991). In that case, "federal, not state, law governs actions against receivers appointed by a federal court." Id.

The applicable federal law is found in 28 U.S.C. § 959 ("Section 959"). Congress enacted Section 959 "to remove the requirement of prior authorization in certain circumstances." Federal Home Loan Mort. Corp. v. 550 Riverside Owners Corp., 1991 WL 258779 at *2. The statute provides, in relevant part, that:

Trustees, receivers or managers of any property, including debtors in possession, may be sued, without leave of the court appointing them, with respect to any of their acts or transactions in carrying on the business connected with such property. Such actions shall be subject to the general equity power of such court so far as the same may be necessary to the ends of justice, but this shall not deprive a litigant of his right to a trial by jury.

28 U.S.C. § 959(a). Section 959(a) was intended to permit actions redressing torts committed in furtherance of the receiver's normal business operations. See, e.g., In re American Assoc. Sys., Inc., 373 F. Supp. 977 (E.D.Ky. 1974) ("The exception created in 28 U.S.C. § 959(a) is intended to permit actions redressing torts committed in furtherance of the bankrupt's business operations. . . .").

Here, Plaintiffs allege personal injuries and damages which arise out of the ordinary operation of the receivership property, namely, that defendants knew or should have known of lead-paint hazards, and that defendants did not adequately maintain the property to ensure protection against lead poisoning. See Amended Compaint, ¶¶ 54-55. Gendels and JMG have failed to show how the instant case is not encompassed by the plain language of Section 959(a). Therefore, the Court finds that Section 959(a) applies to the instant case, and the action may proceed in this Court without leave of the court that appointed Gendels receiver.

Indeed, Gendels' and JMG's memorandum of law does not even mention Section 959(a).

B. Notice of the Hazardous Lead Paint Condition

Gendels and JMG also argue that they could not be found liable for lead poisoning because "defendants Gendels and JMG had no notice that children under the age of seven years were residing in the subject apartment." Gendels/JMG Memo. at 7. To be liable for injuries caused by a lead hazard, "a landlord must have actual or constructive notice of both the hazardous lead condition and the residency of a child six years of age or younger." Juarez v. Wavecrest Mgt. Team Ltd., 88 N.Y.2d 628, 646 (N.Y. 1996) ("Juarez"). However, the lead abatement provision of the Administrative Code of the City of New York, Local Law 1, provides for constructive notice of a hazardous lead condition "where a landlord has notice that a child under the specified age is residing in an apartment." Juarez, 88 N.Y.2d at 647; see also Administrative Code of City of New York § 27-2013(h)(1) (Local Laws, 1982, No. 1 of City of New York) ("Local Law 1"). Thus, if defendants had knowledge that a child under seven resided in the apartment, defendants may be charged with notice of the lead hazard. See Juarez, 88 N.Y.2d at 648.

Plaintiffs assert that Alvino told Gendels that there were children residing in the subject apartment. See Plaintiffs' Memo. at 19; Alvino Tr. at 60. Plaintiffs also submit that Gendels was told of the children residing in the apartment during landlord-tenant housing court proceedings. See Plaintiffs' Memo. at 19; Alvino Tr. at 85. In addition, Plaintiffs argue that Gendels had notice by virtue of the child window guards. See Plaintiffs' Memo. at 20. Finally, according to Plaintiffs, "Defendant Joel Gendels, his agents and repairmen had been in the apartment when the plaintiff children were present." Id. Thus, Plaintiffs have set forth sufficient facts to allow a rational trier of fact to conclude that Gendels and JMG had notice of children under seven years of age living in the Premises.

Gendels and JMG reject Plaintiffs' assertions. They argue, inter alia, that "the gentleman that Ms. Alvino refers to as being Gendels actually was someone else or that she did not speak with Gendels until sometime after he ceased acting as Receiver with respect to the operation of the premises." Defendants Gendels' and JMG's Memorandum of Law in Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss and In Opposition to Plaintiffs' Cross-Motion ("Gendels/JMG Memo. II"), at 7. Gendels and JMG also state that "plaintiffs do not indicate whether the children were in the same portion of the apartment as Mr. Soto [an agent of Gendels] is said to have visited or why he would have assumed that they were residents." Id. Finally, Gendels and JMG argue that windowguards are insufficient for constructive notice, noting that "the New York City Health Code requires that windowguards be installed in all apartments in which children of the age of ten years of age or younger reside." Id. at 11. These arguments, however, fail to rebut the genuine issues of material fact that Plaintiffs have raised as to whether Gendels and JMG had notice of the infants in their building. It is well-settled that the presence of unresolved factual issues precludes summary judgment. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

C. Maintenance of the Subject Apartment

As alternative grounds for summary judgment, Gendels and JMG assert that "the evidence submitted in support of this motion amply demonstrates that Gendels and JMG acted both diligently and reasonably with respect to maintenance of the subject apartment." Gendels/JMG Memo. II at 13. Gendels and JMG argue, inter alia, that invoices related to the maintenance of the subject apartment demonstrate that the Premises, as well as the painted surfaces therein, were adequately maintained. See Gendels/JMG Memo. at 7-8; Schedule of Receipts and Disbursements for the Period August 1, 1994 through December 31, 1995, attached to Aff. of Joel Gendels ("Gendels Aff.") as Exh. "2."

Plaintiffs, however, allege that Gendels and JMG acted negligently, and thus unreasonably, in maintaining the Premises. See Amended Complaint, ¶ 58. Among other things, Plaintiffs indicate that Alvino showed Gendels chipping, peeling, or flaking paint inside the Premises, and that Gendels and JMG "never inspected the subject apartment to determine if it was contaminated by lead based paint." See Plaintiffs' Memo. at 8; Alvino Tr. at 60. Gendels and JMG dispute that Alvino showed Gendels any type of defective paint, but admit that they never inspected the subject apartment for lead-based paint. See Gendels' and JMG's Local Rule 56.1 Statement Responsive to Plaintiffs' Rule 56.1 Statement at 6, 8. Thus, the issue of whether Gendels and JMG acted reasonably with respect to the maintenance of the apartment is a disputed factual issue. Accordingly, and for the reasons discussed above, Gendels' and JMG's motion for summary judgment is denied. See Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

V. Defendant Bronx Properties' Motion

Bronx Properties moves, pursuant to Federal Rule of Civil Procedure 56, for summary judgment dismissing the amended complaint and all cross-claims against it. See Memorandum of Law in Support of Motion for Summary Judgment of Bronx Properties ("Bronx Prop.'s Memo."), at 1. Bronx Properties argues that summary judgment is warranted because it had: (1) no notice of a lead paint condition; (2) no reasonable opportunity to respond to the lead paint condition; and (3) a six month grace period to repair the defective condition. See id. at 2, 7.

A. Notice of the Hazardous Lead Paint Condition

Bronx Properties submits that it "had owned the subject premises for just over two months when it received notice of the lead paint condition by way of the DOH Order to Abate Nuisance," and that "the Order to Abate arose from an inspection performed less than one week after Defendant took title to the premises." Bronx Prop.'s Memo. at 6-7. Bronx Properties argues that "[a]s a matter of law, this limited notice is insufficient to impose liability against Bronx Properties for failing to repair the condition." Id. at 7. However, Local Law 1 provides for constructive notice of a hazardous lead condition, regardless of the landlord's length of ownership, "where a landlord has notice that a child under the specified age is residing in an apartment." Juarez, 88 N.Y.2d at 647.

Plaintiffs argue that Bronx Properties had immediate notice of children residing in the Premises, by virtue of tenant files that included child window guard notices. See Plaintiffs' Memo. at 24, 28. During his deposition testimony, Gendels stated that window guard notices were "most likely" issued, and that any such notices would have been turned over to Bronx Properties. See Plaintiffs' Memo. at 27-28; Gendels Tr. at 60. Further, in a sworn affidavit, Alvino stated that window guards were "plainly visible" when Bronx Properties purchased the Building. Affidavit of Maria Alvino ("Alvino Aff.") at ¶ 12, attached to Plaintiffs' Notice of Cross-Motion as Exh. "6."

Bronx Properties counters that it "had no indication that children were residing in Apartment 2E," and that it "did not receive window guard forms from the prior owner concerning this apartment." Reply Memorandum of Law in Further Support of Motion for Summary Judgment of Bronx Properties and in Opposition to Plaintiffs' Cross-Motion ("Bronx Prop.'s Memo. II"), at 4; Supplemental Aff. of Robert Baranowski ("Baranowski Aff.") at ¶ 4, attached to Bronx Prop's Memo. II. A rational trier of fact could find that the presence of such window guard forms supplied Bronx Properties with notice of children under seven. See, e.g., Nwaru v. Leeds Management Co., 654 N.Y.S.2d 338, 339 (N.Y.App.Div. 1997) ("We reject the contention that window guard forms, required for residency by children less than 10 years old, failed to provide notice, since, at the least, defendants thereby knew that the child could have been six or younger."); Baptiste v. New York City Hous. Auth., 177 Misc.2d 51, 53 (N.Y.Sup.Ct. 1998) ("[W]indow guard forms filed by the tenant provided actual notice of the occupancy of children less than seven years of age."). Thus, whether Bronx Properties knew about the window guards and/or received window guard forms are disputed issues of material fact. Accordingly, Bronx Properties is not entitled to summary judgment on the grounds that it did not, as a matter of law, have notice of the lead paint hazard.

B. Reasonable Opportunity to Repair

"Local Law 1 simply obligates landlords to remedy a specific dangerous defect." Juarez, 88 N.Y.2d at 644. Therefore, where "a landlord establishes that it exercised due care, it will not be held liable." Id. Bronx Properties argues that it is entitled to summary judgment because "[a]s a matter of law and as a matter of equity, Bronx Properties abated the lead paint hazards in the newly acquired building within a reasonable time. . . ." Bronx Prop.'s Memo. II at 10. Bronx Properties submits that "[t]o hold Defendant liable under these circumstances would require the imposition of absolute liability under Local Law 1, without any regard to the reasonableness of Defendant's conduct." Id. at 2.

All parties agree that Bronx Properties purchased the Building on November 28, 1995. All parties also agree that from November 28, 1995, until March 6, 1996, Bronx Properties did not abate the lead paint hazard. See Plaintiffs' Memo. at 25; Bronx Prop.'s Memo. II at 10. Thus, more than three months elapsed between Bronx Properties' purchase of the Building and its abatement of the lead paint in the Premises. A reasonable trier of fact could conclude that Bronx Properties did not abate the lead paint hazard in a reasonable amount of time. Bronx Properties has not supplied the Court with any cases that would, as a matter of law, mandate a finding that Bronx Properties acted reasonably given the facts of this case. Accordingly, Bronx Properties is not entitled to summary judgment on the grounds that, as a matter of law, it acted reasonably.

C. Six Month Grace Period

Bronx Properties also argues that new owners of property have at least six months to remedy any dangerous condition existing at the time of purchase. See Bronx Prop.'s Memo. at 7. In support of this argument, Bronx Properties points to City of New York Administrative Code § 27-2114(h), and New York Multiple Dwelling Law § 304(6-b). Both of these statutes provide that "[n]o civil or criminal liability or penalty shall attach to any person who shall by operation of law become an owner of a multiple dwelling . . . for a period of six months" after the new owner acquires ownership. New York Multiple Dwelling Law § 304(6-b) (McKinney 1974) ("Multiple Dwelling Law § 304(6-b)") (emphasis supplied); City of New York Administrative Code § 27-2114(h) ("City Code § 27-2114(h)"). However, Bronx Properties admits that it did not take title to the Building by operation of law. See Bronx Prop.'s Memo. II at 10. Rather, Bronx Properties "respectfully requests that this Court apply the same fundamental fairness and equity rationales which underlie" Multiple Dwelling Law § 304(6-b) and City Code § 27-2114(h). See id.

The Court finds that Multiple Dwelling Law § 304(6-b) and City Code § 27-2114(h) do not apply to the instant case, as Bronx Properties did not acquire the Building by operation of law. Therefore, to the extent Bronx Properties' motion for summary judgment relies on a six month grace period to abate the lead paint hazard, the motion is denied.

D. Implied Warranty of Habitability Claim

Finally, Bronx Properties contends that Plaintiffs' claim for breach of the warranty of habitability seeks improper relief. See Bronx Prop.'s Memo. II at 11. Specifically, Bronx Properties asserts that Plaintiffs are not entitled to damages stemming from any personal injuries, and that Plaintiffs have failed to demand the appropriate damages for a breach of the implied warrant of habitability. See id. Upon further review, the Court finds that this alleged defect in pleading does not warrant summary judgment for defendants.

New York Real Property Law § 235-b imbues all residential leases with an implied warranty of habitability. See N.Y. Real Property Law § 235-b (McKinney's 1989) ("Section 235-b"); German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537, 567 (S.D.N.Y. 1995) ("German"). It is well-settled that Section 235-b provides tenants with a cause of action sounding in breach of contract. See German, 885 F. Supp. at 567. The most frequently applied measure of damages for this type of breach is rent abatement. See id. ("To the extent that plaintiffs may have been seeking to recover for their alleged personal injuries, their cause of action does not lie in a claim for breach of the implied warranty of habitability.").

Plaintiffs' Amended Complaint does not specifically seek contract damages for the breach of the implied warranty of habitability claim. However, "Rule 54(c) of the Federal Rules of Civil Procedure . . . clearly entitles a court to grant a party relief based on the pleaded and proven facts regardless of whether such relief has been demanded in the pleadings or whether such relief is consistent with the party's theory of the case." McGrath v. Krieger, 502 F. Supp. 103, 104 (S.D.N.Y. 1980). Moreover, "Bronx Properties does not contend that Plaintiffs' cause of action is invalid," only that "the relief demanded is improper as a matter of law." Bronx Prop.'s Memo. II at 11. Therefore, the Court finds that Bronx Properties has not shown that it is entitled to summary judgment on the breach of the implied warranty of habitability claim.

VI. City of New York's Motion

As noted above, Plaintiffs have voluntarily withdrawn their federal claims, and the Court grants the City's motion for summary judgment with respect to Plaintiffs' first and third causes of action. The City presently moves for summary judgment on the remaining causes of action.

A. Failure to Enforce Local Laws

Plaintiffs' second cause of action alleges that the "City has failed to perform duties enjoined upon it by [local] law, in violation of [local] law." Amended Complaint, ¶ 48. Plaintiffs allege, inter alia, that the City failed and neglected to (1) correct lead-based paint violations in Plaintiffs' apartment promptly and completely; (2) impose any of the penalties required by law on the landlord; and (3) relocate Plaintiffs and other family members in accordance with City of New York Administrative Code § 26-301. Id., ¶ 49. The City maintains that Plaintiffs do not have a private right of action for such violations. See City's Memo. at 12-14. Plaintiffs respond that "it has already been determined that tenants can sue municipalities for enforcement of these laws" pursuant to New York City Health Code ("N.Y.C. Health Code") § 173.13 ("Section 173.13"). Plaintiffs' Memo. at 33.

Section 173.13(d)(2) provides that the DOH is required to "order the removal of [lead-based] paint" when it is put on notice that lead paint of a certain content is present in an apartment and "the blood-lead level of any person residing in such dwelling is 20 micrograms per deciliter or higher." 24 N Y Comp. Codes. R. Regs. § 173.13[d][2]. If the owner of the apartment fails to comply with the order to abate within five days after service thereof, the DOH "shall request the Department of Housing Preservation and Development to execute such order." Id. Plaintiffs allege, inter alia, that an order to abate "was not issued to the correct party until February 2, 1996, some 60 days after the apartment inspection conducted by the DOH on December 4, 1995 found the lead based paint hazard in the subject apartment." Plaintiffs' Memo. at 31-32.

It is well-settled that "absent a special relationship creating a municipal duty to exercise care for the benefit of a particular class of individuals, no liability may be imposed upon a municipality for failure to enforce a statute or regulation." Valencia v. Lee, 55 F. Supp.2d 122, 129 (E.D.N.Y. 1999) ("Valencia") (quoting Kenavan v. City of New York, 70 N.Y.2d 558, 568, 523 N.Y.S.2d 60, 64, 517 N.E.2d 872 (N.Y. 1987)). A special relationship exists when a municipality has either: (1) violated a duty commanded by a statute enacted for the special benefit of particular individuals; (2) voluntarily assumed a duty, and the individuals gaining benefit from that duty justifiably relied upon its proper exercise; or (3) assumed positive direction and control over a known, blatant, and dangerous safety violation. See Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253, 261-62, 460 N.Y.S.2d 774, 778, 447 N.E.2d 717 (N.Y. 1983).

In this case, there is no basis for the first of the three types of special relationships that would allow Plaintiffs to sue the City for violation of local laws. Section 173.13(d)(2), cited by Plaintiffs as authority for such a suit, does not apply to the "special benefit" of a "particular class" of persons, such as children. Rather, Section 173.13(d)(2) "was created for the benefit of all residents of New York City who live in a dwelling and not for the special benefit of children." Lindsay v. New York City Housing Auth., No. 95-CV-3315, 1999 WL 104599, at *8 (E.D.N.Y. Feb. 24, 1999) ("Lindsay"); see also Davis v. Owens, 259 A.D.2d 272, 686 N.Y.S.2d 31 (N.Y.App.Div. 1999). As a result, Section 173.13(d)(2) does not create a special relationship between the City and Plaintiffs. See Lindsay, 1999 WL 104599 at *8. Thus, whether a special relationship exists in this case turns upon the two other exceptions to municipal immunity.

The second exception requires that Plaintiffs demonstrate "(1) the municipality's assumption, through promise or actions, of an affirmative duty to act on behalf of the victim, (2) knowledge on the part of the municipality's agents that inaction could lead to harm, (3) some form of direct contact between the municipality's agents and the victim, and (4) justifiable reliance by the victim upon the municipality's affirmative undertaking. . . ." Bargy v. Sienkiewicz, 207 A.D.2d 606, 609, 615 N.Y.S.2d 520, 522 (N Y App. Div. 1994) (citations omitted).

Plaintiffs have submitted sufficient evidence to raise triable issues of fact regarding the existence of these four elements. Specifically, Plaintiffs submit evidence that a Public Health Advisor ("PHA") named Allison DeFreitas visited the Premises on several occasions beginning on November 27, 1995 and counseled Plaintiffs on how to protect themselves from lead poisoning. See Plaintiffs' Memo. at 35-36; Reports of Public Health Advisor Visit/Action, dated November 27, 1995, January 17, 1996, and April 22, 1996; and Public Health Advisor Intervention Reports, dated September 4, 1996, and March 26, 1997 (collectively, the "PHA Reports"), attached to Plaintiffs' Notice of Cross-Motion as Exh. "5." During these visits, DeFreitas discussed, inter alia, the environmental hazards of lead poisoning, proper nutrition for the children, and follow-up medical care. See PHA Reports, passim. DeFreitas also advised Plaintiffs to mop the Premises with Cascade and Tide. See PHA Report dated November 27, 1995. However, there is no indication that Plaintiffs were warned that such measures might not protect them from the lead hazard. Alvino asserts that she "was never advised by anyone from the New York City Department of Health to vacate the subject apartment until the lead paint conditions could be abated." Alvino Aff. ¶ 11. Thus, Plaintiffs have submitted evidence that (1) the City, through DeFreitas's contact with the Plaintiffs, (2) assumed a duty to help Plaintiffs reduce the risk of lead poisoning, while (3) simultaneously knowing that a lead paint hazard existed and would continue to exist at the Premises, despite the recommended remedial measures.

Public Health Advisors are employed by the City's Department of Health.

Furthermore, a rational trier of fact could conclude that Plaintiffs relied upon DeFreitas's advice to their detriment. "What shows reliance on the PHA is that plaintiffs took all of the steps that the PHA recommended and remained in the apartment, believing that if they took those steps, infant plaintiff[s] would be safe." Valencia, 55 F. Supp.2d at 131. Indeed, on at least one occasion, DeFreitas noted that "Mom stated that she has been following the above [nutritional and environmental] regiment." PHA Report dated April 22, 1996. Thus, a rational jury could determine that Plaintiffs relied upon the advice of DeFreitas to conclude that as long as the prescribed measures were followed, Plaintiffs would not be in danger of continuing lead poisoning. See Valencia, 55 F. Supp.2d at 131 (denying summary judgment on facts similar to the instant case). Therefore, Plaintiffs have submitted sufficient evidence of the existence of a special relationship based upon the City's assumption of an affirmative non-statutory duty to act on behalf of Plaintiffs to create a genuine issue of material fact. See id.

Similarly, Plaintiffs have also submitted sufficient evidence to create a genuine issue of material fact on the third exception to municipal immunity. Given the facts as discussed above, the City appears to have "assume[d] positive direction and control under circumstances in which a known, blatant and dangerous safety violation," namely, lead paint, existed. Garret v. Holiday Inns, Inc., 58 N.Y.2d at 262; see also Valencia, 55 F. Supp.2d at 132-33. The City was aware, at all times during DeFreitas's visits, of the lead paint safety hazard, but apparently failed to take proper steps to safeguard Plaintiffs. And, as discussed above, Plaintiffs appear to have relied on the City's advice and direction, and may have been harmed as a result. Thus, triable issues of fact exist on this third exception as well. Accordingly, the City's motion for summary judgment is denied as to the second cause of action. performance of voluntarily assumed duties. See Valencia, 55 F. Supp.2d at 133. Plaintiffs' amended complaint, however, does not currently plead negligent

Plaintiffs' surviving cause of action is not based on the violation of local laws, but rather on the negligent performance of voluntarily assumed duties. Nevertheless, Plaintiffs' memorandum of law and supporting documentation adequately put the City on notice of this alternative legal theory. See, e.g., Plaintiffs' Memo. at 34-39. Accordingly, Plaintiffs will be granted leave to amend their pleadings as to the second cause of action to conform to their proof. See Valencia, 55 F. Supp.2d at 130, n. 5.

B. Plaintiffs' Remaining Causes of Action

Plaintiffs' fourth cause of action is for negligence. See Amended Complaint, ¶¶ 54-58. Specifically, the amended complaint states that "[d]efendants have not maintained the premises that defendants own, manage or operate, or to which they administer federal funds to ensure that plaintiffs would be protected against lead poisoning." Id., ¶ 55. As against the City, this cause of action does not state a claim upon which relief can be granted, as Plaintiffs have conceded that they cannot prove the expenditure of federal funds on the Premises. See Plaintiffs' Memo. at 29, n. 2. To the extent that this cause of action is not based upon the City's use of federal funds, it is duplicative of Plaintiffs' second cause of action, which pleads a claim for negligent assumption of voluntarily assumed duties. Cf. Valencia, 55 F. Supp. 2d at 134. Accordingly, the City's motion for summary judgment on the fourth cause of action is granted.

Plaintiffs' fifth cause of action is for breach of contract and of the implied warranty of habitability. See Amended Complaint, ¶¶ 59-61. However, there is no evidence that the City had any contractual arrangement with Plaintiffs in connection with the Premises. In fact, the evidence before the Court establishes that the City did not own, finance, or provide Plaintiffs with their apartment. Accordingly, the City's motion for summary judgment on the fifth cause of action is granted.

Plaintiffs' sixth cause of action alleges that defendants are liable to Plaintiffs under a nuisance theory, because "[t]he lead contamination in the dwelling provided by defendants creates an unreasonable invasion of the living condition of plaintiffs and is defined as an unlawful nuisance in violation of the New York City Administrative Code and Health Code." Amended Complaint, ¶ 63. There is no cause of action for nuisance under the common law where the condition complained of did not arise from outside the subject premises. See Graham v. Wisenburn, 39 A.D.2d 334, 336, 334 N.Y.S.2d 81, 83 (N.Y.App.Div. 1972). Thus, unless a statutory cause of action exists, the City's motion for summary judgment on the nuisance claim must be granted. See Valencia, 55 F. Supp.2d at 134. In the amended complaint, Plaintiffs refer to the New York City Administrative Code and Health Code, but do not cite to any specific section of either code that would allow an action for nuisance.

In any event, even assuming that Plaintiffs could satisfy the requirements of a distinct statutory nuisance claim against the owner of the Premises, there is no indication that the City owned or provided Plaintiffs with their apartment. As stated above, the evidence establishes that the City did not own, finance, or provide Plaintiffs with their apartment. Therefore, the nuisance claim appears to be against Plaintiffs' landlords, and not the City. See Valencia, 55 F. Supp.2d at 134. Accordingly, the City's motion for summary judgment on the sixth or nuisance cause of action is granted.

Finally, Plaintiffs also allege claims for negligent and intentional infliction of mental distress. See Amended Complaint, ¶¶ 66-69. Under New York law, "[i]t is well settled that public policy bars claims sounding in intentional infliction of emotional distress against a governmental entity." Lauer v. City of New York, 240 A.D.2d 543, 544, 659 N.Y.S.2d 57, 58 (N.Y.App.Div. 199 7) (citations omitted). Accordingly, the City's motion for summary judgment must be granted as against the claim for intentional infliction of emotional distress.

A plaintiff claiming negligent infliction of emotional distress under New York law must establish that she or he: (1) is "[o]ne to whom a duty of care is owed," (2) sustained harm "solely as a result of an initial, negligently-caused psychological trauma," and (3) suffered "ensuing psychic harm with residual physical manifestations." Johnson v. State, 37 N.Y.2d 378, 381, 372 N.Y.S.2d 638, 641, 334 N.E.2d 590 (N.Y. 1975) (citations omitted). As discussed above, Plaintiffs have submitted evidence that the City voluntarily assumed a duty to Plaintiffs that exceeded the scope of any duty imposed upon the City by statute. However, Plaintiffs have not submitted evidence that the City's negligence caused mental distress or psychic trauma, nor have they indicated how Plaintiffs have exhibited physical manifestations of such psychic trauma. Indeed, Plaintiffs do not address the claim for negligent infliction of emotional distress in their memorandum of law. Accordingly, the City's motion for summary judgment on the seventh and final cause of action is also granted.

VII. Plaintiffs' Cross-Motion for Summary Judgment

Plaintiffs move "for an Order granting summary judgment on the issue of liability against all defendants." See Plaintiffs' Notice of Motion. Because disputed factual issues remain as to the liability of each defendant, this motion must be denied. As discussed above, significant issues of material fact remain as to whether Gendels and JMG, and Bronx Properties, had notice of children under seven years of age living in the Premises. Issues of material fact also remain on the issue of whether Gendels and JMG, and Bronx Properties, acted reasonably with respect to maintenance of the Premises. Finally, with respect to the City, Plaintiffs have submitted evidence creating a genuine issue of material fact as to whether the City negligently discharged voluntarily assumed obligations. Accordingly, Plaintiffs' cross-motion for summary judgment against all defendants is denied.

CONCLUSION

For the reasons set forth above, (1) Gendels' and JMG's motion for summary judgment against Plaintiffs is denied; (2) Bronx Properties' motion for summary judgment against Plaintiffs and all cross-claims against it is denied; (3) the City's motion for summary judgment is denied as to Plaintiffs' second cause of action; (4) the City's motion for summary judgment is granted as to Plaintiffs' first, third, fourth, fifth, sixth, and seventh causes of action; and (5) Plaintiffs' cross-motion for summary judgment against all defendants is denied. Trial of this matter shall commence on September 11, 2000 at 10:00 a.m. in Room 906, 40 Centre Street, New York, New York. The joint pre-trial order, all proposed voir dire, jury charges, and motions in limine shall be filed and served on or before August 28, 2000.

SO ORDERED.