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DAKOTA JADE T., AN INFANT, BY HER MOTHER AND NATURAL GUARDIAN, TIESHA J. plf-res, v. NEW YORK CITY HOUSING AUTHORITY, def-ap

3144. DAKOTA JADE T., AN INFANT, BY HER MOTHER AND NATURAL GUARDIAN, TIESHA J. plf-res, v. NEW YORK CITY HOUSING AUTHORITY, def-ap — Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for ap — Rheingold, Valet, Rheingold, Ruffo & Giuffra, LLP, New York (Jeremy A. Hellman of counsel), for res — Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 28, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

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3144. DAKOTA JADE T., AN INFANT, BY HER MOTHER AND NATURAL GUARDIAN, TIESHA J. plf-res, v. NEW YORK CITY HOUSING AUTHORITY, def-ap — Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for ap — Rheingold, Valet, Rheingold, Ruffo & Giuffra, LLP, New York (Jeremy A. Hellman of counsel), for res — Order, Supreme Court, Bronx County (Barry Salman, J.), entered January 28, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly denied defendant New York City Housing Authority’s (NYCHA) motion for summary judgment. The subject child, Dakota Jade T., born in 2005, was diagnosed as having elevated blood lead levels in 2010, and some of the surfaces that the Department of Health (DOH) tested in each of the subject apartments had positive results for lead. NYCHA, the owner and operator of the subject premises, was responsible for maintaining both apartments. The conflicting test results submitted by NYCHA and testimony by its expert that DOH’s positive readings were affected by rebar in the concrete ceilings, did not satisfy NYCHA’s burden on summary judgment to disprove the existence of lead. Additionally, NYCHA did not demonstrate that it did not know about lead paint in the building. At the very least there are genuine issues of fact regarding whether NYCHA had knowledge of lead paint danger in the apartments.

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