The following e-filed documents, listed by NYSCEF document number (Motion 002) 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64 were read on this motion to/for JUDGMENT — SUMMARY. DECISION ORDER ON MOTION In this lead paint negligence action Defendant West End Residences Housing Development Fund Company Inc. (West End Residences) moves for summary judgment pursuant to CPLR 3212. The infant plaintiff I. Z. (I.Z.) and her mother plaintiff Krystal Zachery seek recovery for I.Z.’s injuries allegedly caused by exposure to lead-based paint in their apartment at defendant’s premises. Defendants contend that the evidence demonstrates that the apartment was certified as lead-free both before and after the infant plaintiff’s alleged exposure, and that plaintiffs have offered no evidence to dispute these findings. Plaintiffs oppose the motion, urging that defendant has not met its prima facie burden of showing the absence of a lead-based paint hazard in the apartment, that it did not cause or create such hazard, and its lack of actual and constructive notice of such condition. BACKGROUND Defendant West End Residences maintains, manages and/or controls the building located at 483 West End Avenue, New York, New York (the Building) (NYSCEF Doc. No. 39, complaint, 4; NYSCEF Doc. No. 40, answer, 4). From December 2014 until August 2017, plaintiff Krystal Zachery (Zachery) resided in apartment 504 (the Apartment) in the Building (NYSCEF Doc. No. 39, compl, 5; see also NYSCEF Doc. No. 51, deposition of Krystal Zachery, dated September 13, 2018 [Zachery tr] at 26). The Apartment is a studio with a full bathroom. The main room has four windows, and the bathroom has one window (NYSCEF Doc. No. 51, Zachery tr at 21). In April 2015, I.Z. was born and resided full-time in the Apartment with her mother until August 2017 (NYSCEF Doc. No. 51, Zachery tr at at 9-10). The Building operates as a Tier II women’s and children’s shelter, and the Department of Homeless Services inspects the units every three months, but Zachery never saw the results of any of these inspections (id. at 25). If a repair is needed in an apartment, the procedure residents follow is to submit a maintenance ticket entry into a book maintained by the front desk in the lobby (id. at 25-26; see NYSCEF Doc. No. 42, maintenance repair tickets). In the late summer, early fall of 2015, when I.Z. was crawling, Zachery submitted a repair request to have her bathroom wall patched because the paint was peeling (NYSCEF Doc. No. 51, Zachery tr at 26-28). She put in a ticket for that repair, told her case worker about it, and Peter, a maintenance worker at the Building, came to look at the peeling paint (id. at 30, 36-37, 39). Zachery states that the patch of peeling paint was there when she first moved in. It started off small and continued to grow until it was about eight by ten inches in size and six inches above the floor (id. a 34, 42). In July 2016, Zachery asserts that I.Z. was diagnosed with elevated blood level of lead of 7 ug/dL based on a blood draw (id. at 54, 58-59; NYSCEF Doc. No. 54, I.Z.’s medical records). Zachery notified her case worker, Careena Liners, and defendant’s employee, Ann Davis (NYSCEF Doc. No. 51, Zachery tr at 54). The next day she showed the peeling area in the bathroom to Wilford Jenkins, the Building superintendent (id. at 55-56). In September 2016, someone came to do testing for lead in the Apartment, but Zachery never received a copy of the test results (id. at 39-40). Then several days after that, the area was scraped and plastered (id. at 55-56). According to Zachery, the repair to that peeling paint was done almost a year after her original complaint (id. at 28). As advised by I.Z.’s doctor after the elevated blood lead test, Zachery cleaned all areas of the Apartment with Spic and Span and bleach and cleaned all I.Z.’s toys (see NYSCEF Doc. No. 54, I.Z.’s medical records at 9 of 14). Zachery states that she brought I.Z. for another blood lead test three months later and again her level was reported at 7 ug/dL, and, on another follow-up test, on October 26, 2016, and I.Z.’s blood level was reported at 6 ug/dL (NYSCEF Doc. No. 51, Zachery tr at 59-63; see also NYSCEF Doc. No. 54, I.Z.’s medical records). Zachery further testified that there also was peeling paint coming from the ceiling in the main room, and that she saw pieces of the ceiling come down approximately ten times during her residency in the Apartment (NYSCEF Doc. No. 51, Zachery tr at 35, 37-38). Zachery also made a repair request for her floor because it was sinking in. In June or July 2015, defendant replaced the wood and tiles, which required plaintiffs to leave the Apartment for two days (id. at 28-29). Zachery testified that the repair left their belongings covered in saw dust (id. at 67). Zachery stated that she did not see I.Z. put paint chips in her mouth or put her mouth on the walls, but she did see I.Z. put her hands, feet, and toys in her mouth (NYSCEF Doc. No. 51, Zachery tr at 91-92). She asserted that I.Z. spent little time outside the Apartment, only visited Zachery’s mother in New Jersey maybe twice and did not spend the night, and the only other place they would visit is Riverside Park (id. at 111-112). Prior to I.Z.’s first birthday, her doctors had no concerns about her development, but now she suffers from stomach aches, anemia, and asthma, and her behavior has changed — she has a temper and has developed a grunt (id. at 120,123, 143; see also NYSCEF Doc. No. 54, I.Z.’s medical records). In April 2017, plaintiffs commenced this action asserting claims for violation of statutory rules and regulations (first cause of action), negligence (second cause of action), breach of warranty of habitability (third cause of action), and loss of services (fourth cause of action) (NYSCEF Doc. No. 39). Defendant answered the complaint, denying the material allegations and asserting affirmative defenses of failure to state a claim, waiver and estoppel, plaintiffs’ culpable conduct, third parties’ superceding negligence, lack of proximate cause, and other defenses (NYSCEF Doc. No. 40). Defendant moves for summary judgment on several grounds. First, it argues that New York City Administrative Code (Admin Code) §27-2056.5(a), which creates a rebuttable presumption of notice of lead based paint in any buildings built prior to 1960 where a child under seven years old resides, does not apply to defendant’s Building, because defendant applied for and obtained an exemption under Admin Code §27-2056.5(b). Defendant submits the deposition testimony of its Chief Operating Officer, James Campion, Campion’s affidavit, and the affidavit of defendant’s expert, Lee Wasserman, to demonstrate that it obtained this exemption. In Campion’s testimony and affidavit, he states that he filed the appropriate paperwork for the exemption with the New York City Department of Housing Preservation and Development (HPD) on January 8, 2007 (NYSCEF Doc. No. 45, affidavit of James Campion, dated January 6, 2021 [Campion aff], 16; see also NYSCEF Doc. No. 44, deposition of James Campion [Campion tr] at 41-47). To obtain this exemption, in 2005, defendant hired LEW Corporation (LEW Corp), an environmental consulting firm specializing in lead-based paint hazards and a certified lead abatement contractor, which conducted testing for lead paint throughout the Building including the Apartment (NYSCEF Doc. No. 45, Campion aff, 12). LEW Corp conducted XRF testing on the Apartment which revealed one positive result from the 30 samples taken. This positive result came from a radiator, which was replaced with a new lead-free one (id.,
12-13). In July 2006, LEW Corp performed a dust wipe testing throughout the Building and the Apartment, and a sample in the Apartment bathroom failed. The bathroom was then recleaned following HPD procedures with a HEPA vacuum, washing and then further HEPA vacuuming. After the bathroom was recleaned, LEW Corp took new dust wipes, and all areas were found to be within acceptable limits (id., 14 and exhibit H attached to affidavit). On January 7, 2007, Lew Corp provided an affidavit that the various apartments in the Building were tested and met the requirements for exemption (id., 15 and annexed exhibit H). Campion attests that in September 2016, he was notified by plaintiffs’ caseworker that a child residing in the Apartment tested positive for elevated blood lead levels. He then retained LEW Corp to return and conduct dust wipe testing in the Apartment to determine if there was lead paint in the unit. On September 22, 2016, LEW Corp conducted dust wipe testing and all results were negative for excessive levels of leadbased paint (id., 19). Defendant then retained a contractor to reframe and sheetrock the Apartment bathroom wall with a new plaster finish, a new tile floor, and paint (id., 20). Wasserman of LEW Corp submitted an expert affidavit discussing his credentials, the Admin Code exemption and LEW Corp’s inspection, testing, and abatement of the Tier II shelter units in the Building (NYSCEF Doc. No. 46, affidavit of Lee Wasserman, dated January 6, 2021 [Wasserman aff],
