Wednesday, June 15, 2016

WHERE DOES CHILD RESIDE FOR PURPOSES OF NYC LEAD PAINT LAW



In a child custody/support case, support is paid to the parent who has primary residential custody and the courts, at least those which follow the First Department, usually determine that based solely on the actual amount of overnights that the child spends with each party. See e.g. Joseph M. v. LAUREN J., 2014 NY Slip Op 51536 - NY: Supreme Court 2014

So will a different test apply with respect to statutes that have different purposes? In YANIVETH R. v. LTD Realty Co., 2016 NY Slip Op 2550 - NY: Court of Appeals 2016 the court was faced with the following question:

"New York City adopted lead abatement legislation in 1982 that imposes a duty on landlords to remove lead-based paint in any dwelling unit in which a child six years of age and under resides (see Administrative Code of the City of NY former § 27-2013[h][1] ["Local Law 1"]). The issue in this case is whether a child "reside[s]" in an apartment containing lead-based paint, thereby triggering a landlord's duty under Local Law 1, when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver."

The court said clearly the child is not a resident of the caregiver but Judge Fahey in dissent noted:

"The intent of Local Law 1 is obvious: its enactors sought to shield young children, that is, those who cannot protect themselves, from the dangers of lead-based paint poisoning. The will of a legislative body is discernable from its diction (see Bryant v New York City Health & Hosps. Corp., 93 NY2d 592, 602 [1999]), and the use of the word "reside" in Local Law 1 signals a desire to protect young children who may be exposed to lead-based paint in more than one location. To conclude otherwise would be to say that a child — any person, in fact — may reside in only one place. The majority opinion eliminates the distinction between "residence" and "domicile" established in Newcomb (192 NY at 250). It effectively means that a child may have only one "residence."

The impact of today's decision transcends this case.

It threatens the ability of those young children who are covered by Local Law 1 and who were subject to either a joint custody agreement or a comparable shared living arrangement at the time of their exposure to lead-based paint to recover damages for their resultant injuries. It threatens the ability of children who are covered by the successor to Local Law 1 (see Administrative Code § 27-2056.1 et seq.) and who are subject to similar living arrangements to recover damages for the same harm. It also beseeches a legislative response."

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