APL-2014-00315
Bronx County Clerk’s Index No. 2268/06
Court of Appeals
STATE OF NEW YORK
>>>>
YANIVETH R., an infant by her mother and natural guardian, RAMONA S.,
and RAMONA S., Individually,
Plaintiffs-Appellants,
against
LTD REALTY CO., and LTD REALTY CO., LLC,
Defendants-Respondents,
SIMONE DAMESEK, AS EXECUTRIX OF THE ESTATE OF
RAPHAEL DAMESEK, JOSHUA DAMESEK, RAY DAMESEK,
Defendants,
and
LTD REALTY CO.,
Third-Party Plaintiffs,
against
2716-18 OWNERS CORP., and LEOR MANAGEMENT GROUP,
Third-Party Defendants.
BRIEF FOR AMICUS CURIAE COMMITTEE OF THE
DEFENSE ASSOCIATION OF NEW YORK, INC.
MARGARET G. KLEIN
President of the Defense
Association of New York, Inc.
BY: ANDREW ZAJAC
DAWN C. DESIMONE
Of Counsel:
Andrew Zajac
Rona L. Platt
Brendan T. Fitzpatrick
Date Completed: July 30, 2015
Amicus Curiae Committee
of the Defense Association
of New York, Inc.
MCGAW, ALVENTOSA & ZAJAC
Two Jericho Plaza, Suite 202
Jericho, New York 11753
516-822-8900
TABLE OF CONTENTS
PAGE(S)
TABLE OF AUTHORITIES. • • • • • • • • • • • . • • • • • • • • • • • • • • • • • • • • • • • •• i
CORPORATE DISCLOSURE STATEMENT •••••••••••••••••••••.•••••• 1
PRELIMINARY STATEMENT..................................... 2
STATEMENT OF F A C T S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
POINT I
THE
INFANT
PLAINTIFF
DID
NOT
"RESIDE"
IN
THE
DEFENDANT'S BUILDING UNDER THE STRAIGHTFORWARD
AND COMMON-SENSE READING OF LOCAL LAW 1, AND
THE
APPELLATE
DIVISION,
FIRST
DEPARTMENT
CORRECTLY DISMISSED
THE
COMPLAINT
THAT
WAS
BASED UPON HER ALLEGED EXPOSURE TO LEAD PAINT •••••••• 9
CONCLUSION ••••••••••••••••••••••••••••••••••••••••••••••• 21
TABLE OF AUTHORITIES
PAGE(S)
CASES
Byrd v. 2015 Caton Ave., LLC,
57 A.D.3d 933 (2 nd Dep't 2008)
17
Chapman v. Silber,
97 N.Y.2d 9 (2001)
15
Dean v. Tower Ins. Co. of N.Y.,
19 N.Y.3d 704 (2012)
19
Gibbons v. Ogden,
22 U.S. (I Wheat.) 1 (1824)
14,17
Hanlan v. Parkchester N. Condominium,
32 A. D . 3d 799 (1 st Dep' t 2006)
Inc.,
17
In re Estate of Newcomb,
192 N. Y. 238 (1908)
18
Juarez v. Wavecrest Mgmt. Team,
88 N.Y.2d 628 (1996)
14
Matter of Vega v. New York City Hous. Auth.,
52 A.D.3d 294 (1 st Dep't 2008)
18
McBoyle v. United States,
283 U.S. 25 (1931)
12
Michaud v. Lefferts 750, LLC,
87 A.D.3d 990 (2 nd Dep't 2011)
15
Ogden v. Saunders, 25 U.S. (12 Wheat.)
213 (1827) (opinion of Marshall, C.J.)
12
Rosner v. Metropolitan Property and
Liab. Ins. Co.,
96 N.Y.2d 475 (2001)
-i-
9
United States v. Great Northern Ry.,
287 U.S. 144 (1932)
13
Worthy v. New York City Hous. Auth.,
18 A.D.3d 352 (1 st Dep't 2005)
17
STATUTES
Insurance Law
§
3404 (e)
19
Insurance Law
§
3404 (f) (1) (A)
19
REGULATIONS
Local Law 1 - New York City Administrative
Code § 27-2013 (h) (1)
passim
TREATISES
Charles Fried, Sonnet LXV and the
"Black Ink" of the Framer's Intention,
100 Harv. L. Rev. 751 ( 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
Commentaries on the Constitution
of the United States, 157-58 (1833)
14
The Theory of Legal Interpretation,
12 Harv. L. Rev. 417 (1899)
11
DICTIONARIES
American Heritage Dictionary of the
English Language
10
New Oxford American Dictionary
10
-ii-
CORPORATE DISCLOSURE STATEMENT
The Defense Association of New York,
profit
corporation
which
has
subsidiaries or affiliates.
-1-
no
Inc.
lS
parent
a not-forcompanies,
PRELIMINARY STATEMENT
This
brief
1S
respectfully
submitted on behalf
Defense Association of New York,
Inc.
of
(hereinafter "DANY")
the
as
amicus curiae in relation to the appeal which is before this
Court in the above-referenced action.
DANY
1S
a
bar
association,
together
by
association,
attorneys
and
qualified
York who
devote
time
the
to
a
purpose
communication
non-attorneys
substantial
handling
whose
of
amount
litigated
1S
and
in
State
their
civil
bring
organization
the
of
to
of
New
professional
cases
and
whose
representation in such cases is primarily for the defense; to
continue to improve the services of the legal profession to
the public;
this
to provide for the exchange among the members of
association
procedures
and
litigation
as
improve
the
of
court
are
such
information,
rulings
calculated
skills
of
relating
to
ideas,
to
enhance
defense
the
the
lawyers;
to
techniques,
handling
of
knowledge
and
elevate
the
standards of trial practice and develop, establish and secure
court
adoption
conduct
in
or
court
approval
matters;
of
to
a
high
support
improvement of the adversary system of
standard
and
work
of
trial
for
jurisprudence in our
courts and facilitate and expedite the trial of lawsuits;
initiate
a
program
of
education
-2-
and
the
information
1n
to
law
schools in emphasizing trial practice for defense attorneys;
to
inform its members
and their clients
of
developments
in
the courts and legislatures affecting their practice and by
proper and legitimate means to aid in such developments when
they are in the public interest;
program
other
to
disseminate
pedagogical
knowledge
methods
defense;
to
promote
justice;
to
encourage
to establish an educational
by
trial
on
improvements
prompt
ln
means
of
seminars
techniques
the
for
the
administration
and adequate
payment
of
and
of
every
just claim and to present effective resistance to every nonmeritorious or inflated claim;
of
public
education
that
and to take part in programs
promote
safety
and
help
reduce
losses and costs resulting from accidents of all kinds.
This
plaintiff
impose
action
was
is
premised on
exposed
liability on
to
lead
defendant /
the
claim
paint.
which
that
the
Plaintiff
was
the
infant
seeks
owner
of
to
the
building where her grandmother provided babysitting services
for her.
The thrust of plaintiff's appeal is that she was a
resident of defendant s
I
building for purposes of
lead paint
liability.
DANY respectfully submits that this Court should rej ect
plaintiff's unwarranted attempt
to expand the definition of
the word "reside" so as to create liability in this case.
-3-
The
regulation
"Lead Paint Law,"
In lssue
case,
New York City's
extends protection to children who reside
in a defendant's building.
scenario,
In this
and certainly not
The regulation speaks of no other
the one
in the
case,
where the
child's grandmother resided in the building and the child did
not.
The determinations of both of the courts below should be
affirmed.
-4-
STATEMENT OF FACTS
This
1S
an
action
for
damages
for
exposure
to
lead
paint.
The
infant
born in 1997
plaintiff,
(R 145,
Yavineth
207,
R.,
From her
214).
hospital after her birth until April
with
her
mother,
Miriam Street,
and her
2718
Bronx,
immediate
Marion
Mrs.
IF
at
Collazo
daughter,
NY
moved
Collazo
the
Santana"),
the
at
Mrs.
plaintiff,
Bronx,
4E,
from
plaintiff resided
Thereafter,
including
Miriam Street,
into
that
Rodriguez
in
("Mrs.
(R 214).
Apartment
relevant time period,
Mrs.
1998,
release
was
NY
220
Santana
moved to
(R
215).
plaintiff's grandmother,l resided nearby in
219
Kelli
Santana,
family,
Street,
Victoria Collazo,
Apartment
Ramona
("plaintiff"),
(R
Bronx,
apartment
425,
426,
NY
1n
(R
449)
IF
at
219
Miriam
424).
with
her
During
the
1995
no child other than Kelli
Apartment
233,
resided with
Street
(R
Realty
Company
235,
457)
At
the
(hereinafter
pertinent
time,
"defendant")
Miriam Street,
Bronx,
R.J.
managed
Equities,
NY
defendant
owned
(R
the
286,
the
property
469).
property
LTD
(R
known
A related
288,
469).
as
company,
Joshua
lMrs. Collazo is referred to in certain portions of the Record as "Mrs.
Diaz," her name from a different marriage.
-5-
219
Damesek was the managing agent for R.J. Equities
was assisted by two people: his father,
was the president of R.J.
the
company's
office
superintendent,
premises
duties
at
Equities,
manager
Alejandro
219
(R
Miriam Street
included cleaning the
and otherwise
reporting
He
Raphael Damesek,
who
and Maria Colon,
289,
Rivera,
(R 288).
469).
worked
(R
290,
and
addition,
lived
469).
building,
to management
In
who was
Mr.
at
a
the
Rivera's
doing minor repairs,
when
issues
arose
(R
291, 469).
When
children
tenants
would
window guards
residing
moved
be
they
residing
would need
therein
in,
(R
in
to
the
be
296)
were
asked
rented
installed
Mrs.
whether
premises,
if
Collazo's
any
Slnce
children were
lease
did
not
reflect that she had any children residing in the apartment
(R 471 - 476)
the
tenants,
apartment
(R
Annually thereafter, notices were sent out to
again
296).
asking
At
if
her
children
deposition,
resided
Mrs.
ln
the
Collazo
was
unable to say when window guards were placed ln the windows
of her first
that
floor apartment
the guards were
(R 428
installed at
429) .
some point;
She testified
however,
she
was unable to state that the guards were installed because of
the plaintiff's presence in her apartment
(R 428 - 419).
She
testified that the guards could have been installed because
-6-
her daughter Kelli was also residing in the apartment and for
protection
from
first floor
has
no
outsiders
(R 428 - 429,
recollection
of
since
453).
the
apartment
was
on
the
She also testified that she
receiving
the
annual
window
guard
notices (R 452) .
Mrs. Santana returned to work approximately three months
after plaintiff's birth
began
to
premises
watch
(R 153,
plaintiff
Street,
the
her
did
the girl
girl' s
granddaughter
233,
not
(R 233).
426).
live
with
[plaintiff]
(R
babysitter."
At that time,
in
the
219
Mrs.
Collazo
Miriam
Street
As Mrs.
Collazo acknowledged,
her:
lived
"I
at
219
Miriam
lived with her mother but I was
448)
At
her
deposition,
Mrs.
Collazo was unable to remember informing building management
that she was babysitting plaintiff in her apartment
While
Collazo
Mrs.
superintendent
knew,
form that belief
telling Ms.
testified
she
that
could not
(R 447-448).
Mrs.
she
recall
(R 447).
believed
how
she
came
the
to
Collazo also denied ever
Colon that she was babysitting for the plaintiff
in her apartment,
despite speaking with her at least once a
year (R 435, 448).2
2 Mrs . Collazo's testimony is allegedly refuted by an affidavit, in
English, dated two and one half years prior to her deposition (R 657 658). The propriety of the affidavit, which had not been disclosed prior
to its submission in opposition to the motion, and plaintiffs' reliance
-7-
Mr. Damesek testified that he did not know Mrs. Collazo,
Mrs. Santana or the plaintiff
conversations with the
(R304).
(R 303 - 304, 470)
superintendent
He had no
regarding any of
them
Nor did he recall having any conversations with his
now-deceased
father
regarding
them
(R.
304)
Mr.
Damesek
testified that he knew that only Mrs. Collazo was residing in
Apartment IF at 219 Miriam Street (R 304 - 305)
had no recollection of being ln Apartment
Street
1995
between
and
470) .
the
He
the
date
first
time
he
Mrs.
Collazo
received the
became
aware
of
Mr. Damesek
IF at
took
up
219 Miriam
residence
lead abatement
the
plaintiff's
ln
order
(R
supposed
residence in that apartment when a lead abatement notice was
received in February 1998 (R 470) .
Defendant
other
things,
moved
for
that
it
summary
had
no
judgment,
duty
to
arguing,
among
plaintiff,
since
plaintiff did not reside ln its building.
The Supreme Court
granted
determination was
the
motion
(R
9
12),
and that
affirmed by the Appellate Division (R 760 - 761).
Thereafter,
this
Court
granted
plaintiff's
motion
for
permission to appeal (R 757) .
thereupon, was addressed by defendant's counsel in her reply affirmation
in the court of original instance (R 679 - 682).
-8-
POINT I
THE INFANT PLAINTIFF DID NOT "RESIDE"
IN THE DEFENDANT I S BUILDING UNDER THE
STRAIGHTFORWARD
AND
COMMON-SENSE
READING
OF
LOCAL
LAW
I,
AND
THE
APPELLATE
DIVISION,
FIRST
DEPARTMENT
CORRECTLY DISMISSED THE COMPLAINT THAT
WAS BASED UPON HER ALLEGED EXPOSURE TO
LEAD PAINT
one
The
issue
word
in
statute
is
in
a
Local
this
case
statute.
concerns
That
Law 1.
The
word
the
is
statute
interpretation
"reside,"
imposes
and
of
that
liability upon
an owner of a multiple dwelling only if the owner has notice
a
child or children under
building.
According
basic principles
of
to
the
the
age
of
six
"reside"
plain meaning
of
the
sound statutory interpretation,
in
their
word
and
"reside"
means where one lives and makes his or her home.
In
Insurance
Rosner
v.
Company,
Metropolitan
96
N.Y.2d
475
Property
(2001),
and
this
Liability
Court
that:
[T]he
starting
point
in
any
case
of
interpretation must always be the language
itself , giving effect to the plain meaning
thereof
In the absence of any
controlling
statutory
definition,
we
construe words of ordinary import with their
usual and commonly understood meaning, and
in that connection have regarded dictionary
definitions
as
useful
guideposts
in
determining the meaning of a word or phrase.
-9-
stated
96 N.Y.2d at 479-480,
(citations and internal quotation marks
omitted) .
Applying
presented
the
herein
foregoing
leads
to
arguments have no merit.
principles
the
to
conclusion
the
that
questions
plaintiffs'
A residence means one's home,
and
not a babysitter's abode.
Reference to dictionaries as "useful guideposts" is also
For instance,
instructive.
the American Heritage Dictionary
of the English Language defines reside as "to live in a place
permanently
for
or
an
http://www.ahdictionary.com.
defines
Dictionary
permanent
the
The
verb
First Department's
plaintiffs'
this
word
protections
attempt
to
fit
of
to
Oxford
to
Accordingly,
American
.. [h] ave
the
one s
I
place."
Appellate
ruling should be affirmed,
unreasonably expand
their
the
as
period. "
particular
a
http://www.oxfordreference.com.
Division,
New
"reside"
in
home
extended
subjective
statute
to
intent
include
this
and
meaning
expand
scenarios
and
of
the
never
envisioned by the Legislature should be rejected.
Local
Law 1
New York City Administrative Code
§
27-
2013 (h) (1) provides that in any multiple dwelling constructed
before January 1,
and
"in which a
1960 ln which surfaces have peeling paint,
child or children six
-10-
(6)
years of age or
under
the
reside, "
law
will
presume
that
the
peeling
substance contains lead. The statute does not define the term
"reside."
Contrary to plaintiffs
does
involve
not
legislative
exhortations,
I
history
or
the
this
appeal
acknowledged
harms caused by lead paint: it concerns the definition of the
word "reside."
As plaintiffs acknowledge
ln their
legal
argument,
definition of reside is to "live in a particular place."
the
The
infant plaintiff in this case, however, did not "live" in her
grandmother's
apartment.
But
plaintiffs
ask
this
Court
to
venture into the minds of the Legislators to expand the plain
definition
spent
of
time
"reside"
while
to
being
include
places
babysat.
where
Justice
the
Oliver
child
Wendell
Holmes cautioned against such activity when he noted "We do
not inquire what the legislature meant; we ask only what the
statute
means. " Oliver
Wendell
The
Theory of
12
Accordingly,
"intent" must be determined from the words
of the text.
Ink"
of
See,
Rev.
Legal
Interpretation,
any
Harv.
Holmes,
L.
Charles Fried,
the Framer's
Intention,
(1899) .
419
Sonnet LXV and the
100 Harv.
L.
Rev.
"Black
751,
759
(1987) .
Thus,
words.
the courts must look to the objective meaning of
A fair
reading
of
the
-11-
word
"reside"
leads
to
the
inescapable conclusion that it means where one lives; where a
person has their residence.
an
individual
spends
It does not mean a place where
an
amorphous
significant amount of
time,
plaintiffs
claim
the
threshold
alleged
hours
per
week
with
50
her
uncertain
operative
grandmother,
standard
word:
indeterminate
as plaintiffs demand.
in
that
to
would
and
this
the
create
Chief
infant
such
eviscerate
"reside".
case
would
be
plaintiff
an
meaning
Marshall
the
spent
unworkable
the
Justice
Although
and
of
the
implored
long ago to look to the words and in what sense they are used
in order to determine intent:
To say that the intention of the instrument
must prevail; that this intention must be
collected from its words; that its words are
to be understood in that sense in which they
are generally used by those for whom the
instrument was intended; that its provisions
are
neither
to
be
restricted
into
insignificance, nor extended to objects not
comprehended in them, nor contemplated by
its framers;-is to repeat what has been
already said more at large, and is all that
can be necessary.
Ogden
v.
Saunders,
25
U.S.
(12
Wheat.)
213,
332
(1827)
(opinion of Marshall, C.J.)
Justice Holmes discussed this
the
word
"vehicle"
Vehicle Theft Act
as
it
was
in McBoyle v.
-12-
issue
used
ln
in connection with
the
National
United States,
Motor
283 U. S.
25
(1931) .
In
transporting
McBoyle,
from
the
Illinois
petitioner
was
convicted
to Oklahoma an airplane
he
of
knew
had been stolen. The Act in question defined the term "motor
vehicle"
as
automobile
including
wagon,
"an
automobile,
motorcycle,
or
any
truck,
automobile
other
vehicle not designed for running on rails."
self-propelled
The issue before
the United States Supreme Court was the meaning of the word
"vehicle" ln the phrase "any other self-propelled vehicle not
designed for
running on rails."
Justice Holmes
ruled that
while it was "etymologically" possible for an airplane to be
considered a vehicle,
"in everyday speech
the picture of a thing moving on land."
Similarly,
where
one
in common parlance,
lives,
"significant,"
threshold of
not
time.
or
vehicle
r
calls up
Id., 283 U.S. at 26.
the word
where
"substantial,"
I
an
"reside"
individual
some
other
means
spends
indeterminate
As Justice Cardozo once noted
"we have
not traveled in our search for the meaning of the lawmakers,
beyond the borders of the statute."
Northern. Ry.,
287 U.S.
144,
154
United States v.
(1932).
Great
Based upon the text
of Local Law 1, its purpose was to protect children living in
multiple-dwelling
there
was
Legislature
apartments
evidence
was
of
precise
constructed
peeling
in
the
-13-
or
words
before
chipping
it
1960
where
paint.
chose,
and
The
the
meaning
the
of
word
"reside"
is
evident
from
a
straightforward reading of the statute.
According
to
the
this Court to adopt,
interpretation
which
plaintiffs
urge
all owners of multiple dwellings would
need to track the movements of all who enter their buildings,
since
plaintiffs
include
seek
instances
to
where
enlarge
a
the
child
meaning
spends
a
significant amount of time in the building.
claim that a
is
the
imprecise
reside
to
substantial
or
While plaintiffs
residence should include where a person spends
50 hours per week at a location,
this
of
floor
or
they do not indicate whether
ceiling.
definitions
Use
violates
of
Chief
such
amorphous
Justice
and
Marshall's
charge that words are to be understood given their everyday
meanings,
unless
enlightened
the
patriots
people who adopted
text
who
it,
framed
must
said."
Gibbons
v.
our
otherwise:
constitution,
Ogden,
22
U.S.
(I
Justice Story echoed this
sentiment
statutes
are
plain
be
given
and
the
employed
and to have intended what they
(1824) .
to
" [T]he
be understood to have
words in their natural sense,
have
indicates
their
Wheat.)
and
that
words
71
in
common-sense
meaning:
[E]very word employed in the constitution
is to be expounded in its plain, obvious,
and common sense,
unless the context
-14-
1,
furnishes
some
ground
to
control,
qualify, or enlarge it. Constitutions are
not designed for metaphysical or logical
subtleties, for niceties of expression,
for
critical propriety,
for
elaborate
shades of meaning, or for the exercise of
philosophical
acuteness
or
judicial
research.
They
are
instruments
of
a
practical nature, founded on the common
business of human life, adapted to common
wants,
designed
for
common
use,
and
fitted for common understandings.
Joseph Story,
Commentaries on the Constitution of the United
States, 157-58 (1833)
Plaintiffs
Local
Law
reside.
words
context
1
seek
by
to
greatly
jettisoning
the
enlarge
the
protections
plain meaning
As this Court has previously recognized,
have
of
Wavecrest
multiple
this
child lives
meanings,
statute,
and makes his
Management
Team,
in
the
common
word
sense,
means
or her residence.
88
N.Y.2d
628,
liability may be
child caused by a
imposed upon a
or constructive notice of both
condition,
excess
646
the
statutory
the
where
the
(1996),
this
and held that
injuries
the
a
in
to a
landlord had
hazardous
minimums,
lead
an
and
(b)
that a child six years of age or younger resided therein.
In
located in a
of
while many
in
apartment
ln
(a)
word
In Juarez v.
landlord for
lead hazard only where
the
"reside"
Court analyzed Administrative Code § 27-2013(h)
actual
of
of
building built before
-15-
1960,
other words,
under Local Law 1,
a
landlord who has notice of
a child under seven years old living in one of its
multiple dwelling]
apartments is a
[pre-1960,
landlord who has notice of
any hazardous lead condition in that apartment causing injury
to
that
child.
See,
Chapman
v.
Silber,
97
N.Y.2d
9,
15
(2001) .
The Appellate Divisions have
In
Michaud
2011) ,
the
hazardous
Lefferts
where
v.
infant
750,
LLC
infant
LLC,
paint
Management,
LLC
(" the
owner
manager
91
of
A. D. 3d
the
resided
91
East
East
the
exposed
owner
with
21st
of
after
school
least two or three times per week.
diagnosed
Plaintiffs
with
an
elevated blood
alleged that
violated their
Lefferts
parents
Street,
LLC,
the
where
a
sued
(" the
and
El
respective
the
infant
and
("the 91 East
would
sleep
over
at
The infant plaintiff was
lead
level
and the
91
in April
East
2004.
defendants
to
lead-based paint conditions
-16-
to
The infant plaintiff
statutory and common-law duties
eliminate the hazardous
Dep' t
apartment
her
defendants"),
apartment
the
stayed at the maternal grandmother's apartment
every day
(2 nd
Plaintiffs
plaintiff's maternal grandmother lived.
apartment")
sound logic.
990
allegedly
condition.
plaintiff
and
87
was
("Lefferts"),
apartment"),
and
750,
plaintiff
lead-based
the
Lefferts
Lefferts
followed this
abate
and
in their
respective apartments.
The 91 East defendants moved to dismiss and argued they
were
not
liable
under
Local
Law
1
because
the
infant
plaintiff did not reside in their building.
In affirming the
dismissal
East
the
of
the
Appellate
complaint
Division,
against
the
91
Second Department
noted
defendants,
that
under
the relevant versions of Local Law I,
"the duty of an owner
of
cover
a
multiple
dwelling
to
remove
or
hazardous
lead-
based paint 1S triggered only when a child of applicable age
"reside [s]"
1n
a
dwelling
(citations omitted)
unit."
(emphasis added).
87
A.D.3d
at
992-93
The Appellate Division
ruled that the 91 East defendants were not liable because the
infant plaintiff
Id.,
at 993.
"did not reside
in the
91 East apartment."
The Appellate Division continued that because
"the 91 East defendants demonstrated that a
not
'live[ ] in the apartment,'
'young child' did
they established their prima
facie entitlement to judgment as a matter of law on the cause
of
action
alleging
common-law
negligence."
Id.
(citations
omitted) .
Here,
the defendant showed the infant plaintiff did not
live in its building.
While she may have visited with great
frequency and spent time there,
she did not
building under the plain meaning of the word.
-17-
"reside"
in the
See, Hanlan v.
Parkchester
N.
Condominium,
Inc.,
32
A.D.3d
799,
799
(lst
Dep't 2006) (concluding that even if one assumed Local Law 1
applied
to
the
defendants,
"the
infant
plaintiff
did
not
reside in the condominium unit at issue, but instead lived in
a unit distinct from that
ln which the lead paint condition
was found.")
Similarly,
18
A.D.3d
followed
ln Worthy v. New York City Housing Authority,
352
(1
Chief
In Worthy,
st
Dep't
Justice
the
the
Marshall's
Appellate
"insufficient
2005)
[evidence
Appellate
admonition
Division also
from
Division concluded that
ln
record]
the
to
Gibbons.
there
was
support
an
inference that defendant Housing Authority had timely notice
that a child under the age of seven resided in the apartment
on its premises where the infant plaintiff is alleged to have
contracted
First
poisoning."
Department
records
years
lead
"did not
lived
evidence,
to
~n
Id.
reasoned
indicate
the
that
that
a
subject
the
effect
(citation
the
Housing
child of
less
and
various
Housing
that
The
Authority's
apartment,
employees occasionally observed the
company of his aunt,
omitted)
than
seven
plaintiffs'
Authority
infant plaintiff
in the
the tenant of record of the apartment,
was insufficient to raise any triable issue as to whether the
Housing
Authority
had
actual
or
-18-
constructive
notice
of
a
child's residency In the unit."
also,
Byrd v.
Id.
2015 Caton Ave.,
LLC,
(emphasis added);
see,
(2 nd Dep't
57 A.D.3d 933
2008) (granting summary judgement to defendant
landlord where
plaintiff
of
failed
to
raise
a
triable
issue
fact
with
respect to the landlord's notice of an infant's residency In
the subject apartment); Matter of Vega v. New York City Hous.
Auth.,
met
(1 st Dep't 2008)
52 A.D.3d 294
its
prima
facie
burden of
(holding the defendant
establishing
lack
of
notice
that a child under seven years of age resided In the subject
apartment) .
Rather
"reside"
than
rely
upon
the
plain
in the context of Local
meaning
Law I,
of
the
word
plaintiff seeks to
undo decades of precedent by citing to this Court's decision
In
In
re
concerned
Estate
an
of
Newcomb,
application
for
letters testamentary against a
case,
the
question
interpretation.
In
N.Y.
238
the
revocation
(1908),
of
will's trustee.
Newcomb
In Newcomb,
192
was
not
one
which
ancillary
Unlike this
of
statutory
the decedent chose to call her
domicile the city of New Orleans, Louisiana as opposed to New
York City before her death,
had
an
enormous
million estate.
whether
the
impact
The
decedent
and the effect of such decision
upon
the
distribution
question before
was
competent
-19-
of
her
the Newcomb Court
to
declare
herself
$2
was
a
domiciliary of New Orleans.
issue
concerns
"reside"
in
the
In contrast,
statutory
Local
Law
1.
in this case,
interpretation
Thus,
this
of
the
Court's
the
word
ruling
in
Newcomb has no application to this case, and it should reject
plaintiffs' overtures to use it to alter the plain meaning of
the word "reside."
Plaintiff also cites to this Court's ruling 1n Dean v.
Tower
The
Insurance
issue
premises'
in
in
insured
Company of New York,
Dean
an
concerned
insurance
purchased
a
19 N. Y. 3d 704
"whether
contract
homeowner's
the
1S
term
'residence
ambiguous
policy
1n
(2012).
where
advance
of
an
a
closing but was unable to move 1n due to the need for major
repairs."
Id.
premises"
in
compared
policy
the
in
occupancy
which
the
Tower
and
cannot
that
at
709.
was
Insurance
Law
referred
a
to
policy
to
"with
provisions
in
"Tower's
Law
respect
"less
the
Id.
the
which
Insurance
contained
Further,
ambiguous.
3404(e),
§
policy
contain
insured than those
Id.,
policy
Insurance
states
fire"
This Court concluded that the term "residence
§
to
This
standard
used
the
fire
term
3404(f) (1) (A),
the
peril
of
to
the
favorable
standard fire
policy."
letter disclaiming coverage
also speaks in terms of occupancy."
Id.
There are no similar circumstances 1n this case.
-20-
Court
This
Court
need not
ascertain
Newcomb
the
did
contract,
contract
that
refer
to
meaning
not
any other
of
involve
the
the
and Dean dealt
and
a
policies
specific
cannot
word
statutes
or
"reside"
in Local
interpretation
with the
command
provide
contracts
of
a
interplay of
in
less
the
Law
1.
statute
or
an
insurance
controlling
favorable
to
statute
coverage
than
contained in the standard policy identified in the statute.
Contrary
Division
and
did
to
plaintiff's
not
substitute
"residence."
cited
As
definitions
consistent
with
this
and
charges
its
prior
own
Court
prior
herein,
definition
can
readily
rulings,
precedent,
the
the
Appellate
of
see
"reside"
from
the
First
Department,
the
common-sense
employed
definition of the word.
Plaintiff
"improperly
duty to
the
narrows
remove
contrary,
interpretation
hold
otherwise
"reside,"
argues
that
a
and
follows
would
In
decades-old
the
including
building for whatever period of time,
50 minutes per week.
to monitor
the
from
law
its premises."
To
proper
legal
any
of
of
child who
the
To
word
enters
a
whether for 50 hours or
every resident
-21-
statutory
precedent.
meaning
This would impose a
movements
and
ruling
common
reinforces
eviscerate
it
Division's
statutory
conditions
holding
resulting
Appellate
landlord I s
hazardous
the
the
duty on landlords
and non-resident
who
enters
time.
be
their
building
Any change to a
ascertained
definition
courts,
and
by
should
it
lS
come
at
any
time,
for
statutory term where
employing
the
period
plain,
common-sense
not
respectfully submitted that
the
First Department be affirmed.
-22-
of
its meaning can
Legislature,
the Appellate Division,
from
its
any
from
the
ruling of
CONCLUSION
For
the
foregoing
reasons,
the
order
appealed
from
should be affirmed.
Dated:
Jericho, New York
July 30, 2015
Respectfully submitted,
Margaret G. Klein, Esq.
President of the Defense Association of
New York, Inc.
Andrew Zajac, Esq.
Dawn C. DeSimone, Esq.
Amicus Curiae Committee of the
Defense Association of New York, Inc.
c/o McGaw, Alventosa & Zajac
Two Jericho Plaza, Ste. 202
Jericho, New York 11753-1681
(516) 822-8900
By:
~
Of Counsel
Andrew Zajac, Esq.
Rona L. Platt, Esq.
Brendan T. Fitzpatrick, Esq.
-23-