New York Court of Appeals Clarifies Term “Reside,” Affirms Summary Judgment in Lead Case

On April 5, 2016, the Court of Appeals of New York handed down a decision that clarifies the definition of “reside” as that term is used in Administrative Code § 27-2013[h][1] [Local Law 1], which governs a building owner’s duty to remove certain surface-coating material (e.g., lead) from the inside of apartment spaces. Local Law 1 states that “The owner of a multiple dwelling shall remove or cover in a manner approved by the Department any paint or other similar surface-coating material having a reading of 0.7 milligrams of lead per square centimeter or greater or containing more than 0.5 percent of metallic lead based on the non-volatile content of the paint or other similar surface-coating material on the interior walls, ceilings, doors, window sills or moldings in any dwelling unit in which a child or children six (6) years of age and under reside.”

In Yaniveth R. v. LTD Realty Co., 2016 N.Y. Lexis 749 (N.Y. 2016), the infant plaintiff since three months of age would go to her grandmother’s house for day care five days a week for about 50 hours a week. The infant would return to her parent’s apartment each evening where she lived along with her older sister. Both the plaintiff mother and the grandmother acknowledged that the infant plaintiff only lived at her parents’ apartment. When the infant was one year old, she was found to have had an elevated blood lead level. The NYC Department of Health identified the hazardous lead-paint conditions at the grandmother’s apartment and issued an order to abate to the owner of that apartment building.

Eight years later, the plaintiff mother commenced a negligence action against LTD Realty Co., the owner of the grandmother’s apartment building, individually and on behalf of the infant plaintiff.  The plaintiffs argued that because the infant “spent a significant amount of time” at the grandmother’s apartment, the defendant owner had a duty to abate the apartment of its lead condition pursuant to Local Law 1 and its failure to do so caused the infant plaintiff’s injuries. The defendants moved for summary judgment, arguing that because the infant plaintiff did not “reside” with her grandmother, the owner of the apartment building had no duty to abate the lead condition. Both the Supreme Court and the Appellate Division found that the infant did not reside with her grandmother, therefore, vitiating any duty to abate.

The plaintiffs appealed to the New York Court of Appeals, the state’s highest court, arguing that the term “reside” should be interpreted as broadly as possible so as to effectuate the legislature’s intent behind Local Law 1. The plaintiffs urged the court to interpret the code to encompass “places in which a child is physically present or spends a substantial amount of time.” Local Law 1 does not define the word “reside,” which required the court to look to dictionary definitions from the relevant time period of when the law was passed (i.e., 1982). Particularly, the court looked to the standard Black’s Law Dictionary, which noted that “residence” is “made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile.” After distinguishing a 1908 surrogate case concerning an application for the revocation of ancillary letters testamentary — a case the dissent cited as a main authority for its decision — the court noted three more recent cases for the idea that “residence” requires both “permanence” and “intention to remain.” The court believed this understanding of the term “reside” was consistent with the legislative history of Local Law 1 because more expansive language could have easily been used if it so intended a less limiting reach.

Applying those principles of statutory construction, the court found that the infant plaintiff did not “reside” with her grandmother: “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.” The dissenting opinion, authored by Judge Fahey, argued that the court effectively eliminated the distinction between “residence” and “domicile” — meaning that a child could have only one residence. The court addressed the dissent’s concern, recognizing that a child may have more than one residence, but noting that whether a person “resides” in a particular locale “is a fact-driven inquiry that depends on the totality of the circumstances.” The court acknowledged that a “joint custody situation or other shared living arrangement” were both scenarios that may give rise to a child having multiple residences. But as it is a fact-intensive inquiry, not “every place in which a person spends time constitutes a residence.” Judge Fahey, the sole dissenting judge, indicated clear displeasure with the court’s opinion as she referred to it as one requiring or “beseech[ing] a legislative response.” Summary judgment for the defendants was affirmed.

Time will tell whether the New York State Legislature will entertain Judge Fahey’s suggestion. In the interim, this case reinforces a well-established understanding of the term “resides” in Local Law 1, doing so within the context of persuasive plaintiff side facts — the infant plaintiff here spent a substantial amount of time at the subject premises (50 hours per week). It appears that if an infant plaintiff is not considered as “living” in a particular residence where he or she spends substantial time, a finding of joint custody or some other version of a shared living arrangement would be a prerequisite for liability. The court’s opinion may also not preclude liability in a scenario where a child spends substantial time at a subject location with a custodial figure. But overall, the case is a decisive victory for landlords and building owners — affirming the reasonable limitations on liability under Local Law 1.

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