N.Y.Towns Shielded From Suit If Lead Programs Fail

April 2, 2004

Local governments cannot be sued if their lead paint abatement programs fail to protect some citizens from poisoning, the state’s highest court ruled this week.

The Court of Appeals said it reached that conclusion while keeping in mind the possibility of dire consequences for local governments throughout the state if it had expanded municipal liability in the two lead paint cases.

“Courts have been cautious about opening the public purse,” Judge Albert Rosenblatt wrote for the court. ‘”Of course, the Legislature may extend the orbit of duty, but it has not done so.”

The pair of 7-0 rulings involved children who suffered health problems from lead poisoning in privately owned homes in Brooklyn and Brewster, Putnam County.

Local government agents intervened in both cases, providing the parents of the children with information about lowering the youngsters’ lead levels and ordering landlords to take lead paint abatement steps at both dwellings. As court papers indicated, however, landlords followed through slowly and the abatement processes dragged on.

Months later, lead levels in the children’s blood remained dangerously high. That prompted the parents to sue their landlords, as well as the local governments for the way they run their lead paint protection programs.

Rosenblatt said the state’s lead paint statute, passed in 1992, and a New York City abatement program created in 1997, do not allow causes of action by private litigants against governments.

In both instances, local government agents carried out their duties reasonably enough — through Rosenblatt conceded that they could have done better, especially by following through to make sure the abatement work was getting done.

“In retrospect, the municipal employees in both cases may have carried out their duties imperfectly, and it surely would have been far better — and the harm perhaps avoided — had the Putnam authorities been more aggressive and the New York officials more thorough,” Rosenblatt said.

But to rule for the families would open municipalities up to liability in the way they deliver a whole host of services “whenever it can be shown that they could have or should have done better,” the judge wrote.

“No government could possibly exist if was made answerable in damages whenever it could have done better to protect someone from another person’s misconduct,” he added.

The decisions, upholding rulings by two midlevel appeals courts, mean lawsuits can only be directed at private landlords. Rosenblatt noted that it would be different had either case involved public housing projects. Then the municipalities would have been liable in their capacity as landlords.

“The court emphasized how important it is that municipalities have fund and discretion to provide these critical public services,” said Janet Zaleon, lead attorney for the New York City Corporation Counsel’s office in the case. “Had the court ruled differently, it could have had a profoundly chilling effect.”

Lawyers for Putnam County and the two families bringing suit did not return telephone calls seeking comment on Thursday’s ruling.

Young children can ingest lead by eating chips or peelings from lead-based paint. They, older children and adults can also breathe it in through paint dust.

Elevated lead levels can stunt normal growth, impair hearing, limit attention spans and damage the central nervous system. It’s considered a particular danger to young children and pregnant women.

Copyright 2004 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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