Preview
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
EXHIBIT A
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
DESHAUN HALL
PLAINTIFF'S VERIFIED
BILL OF PARTICULARS
Plaintiff,
vs. Index No.: 802578-2013
MICHAEL CIMATO As Administrator of the
Estate of SABATINO CIMATO, Deceased,
THE ESTATE OF DAVID ELBESON,
RONALD KARASZEWSKI, KOLO BABAGANA
And MARY ANN FORLENZA, As Administrator of
The Estate of MARY ANN MILITELLO, Deceased
Defendants.
TO: MICHAEL CIMATO as Administrator of the Estate of SABATINO
CIMATO, Deceased
The Plaintiff, DESHAUN HALL, by and through her attorneys, Hemming &
Staehr, P.C., upon information and belief, provides the following answers to Defendant's
Demand for a Verified Bill of Particulars:
1. Upon information and belief, the Plaintiff resided at 573 West Avenue,
Buffalo, New York 14213 (hereinafter the "573 West Avenue Premises") from 1994
through in or around the 1995 timeframe.
2. Dashaun D. Hall; DOB: 92; SSN: 2411.
3. The Plaintiff has also been known as Deshaun Hall.
4. Plaintiff's counsel objects to this demand as overly broad, unduly
burdensome and patently improper pursuant to CPLR Section 3042. Without waiving
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
.
said objection, information pertaining to this demand can be obtained through
depositions.
5. Plaintiff's counsel objects to this demand as overly broad, unduly
burdensome and patently improper pursuant to CPLR Section 3042. However, without
waiving said objection, the dates and times when the Plaintiff ingested lead based paint
are all times when Plaintiff was residing 573 West Avenue Premises. Upon information
and belief, exposure was by both inhalation and ingestion. Plaintiff reserves the right to
supplement this response as discovery is ongoing.
6. Upon information and belief, injuries caused by the Plaintiff's lead
poisoning are as follows:
a) Brain and neurological damage including but not limited to, Attention
Deficit Disorder, Attention Deficit Hyperactivity Disorder, development and learning
disabilities, cognitive and perceptual disorders, inability to process information, language
deficits, hyperactivity, the tendency to become easily frustrated and distracted, abnormal
aggressiveness, social, emotional and behavior disorders, a lower anticipated I.Q. level,
and impaired intellectual abilities. The neurological damage is extensive and permanent;
b) Interference with normal cell and system function;
c) Diminished cognitive function and intelligence;
d) Irreversible brain damage;
e) Neurobehavioral injuries;
f) Developmental deficiencies;
g) Increased susceptibility to lead elevations and further lead poisoning;
h) Increased probability of emotional and psychological impairments;
i) Severe emotional and psychological harm;
j) Future cost of psychotherapy, psychological and/or psychiatric services;
k) Memory deficits;
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
1) Speech and language delays and deficits in speech and language
processing;
m) Speed of thought processing deficits;
n) Gastrointestinal damage, including but not limited to lead colic, abdominal
pain and loss of appetite suffered during the period the infant was being exposed to lead;
o) Neuromuscular affects, including but not limited to extreme and prolonged
muscular pain and cramping;
p) Physical pain and suffering caused by painful invasive medical procedures
and frequent testing;
q) Physical pain and suffering caused by the medical conditions resulting
from lead poisoning;
r) Possibility of reduced life span;
s) Probability of limited and reduced educational attainments, failure in
school and in attaining academic objectives, and decreased educational opportunities;
t) Probability of reduced lifetime earnings and decreased employment
opportunities;
u) Loss of the enjoyment of life; and
v) Emotional pain and suffering.
Upon information and belief, all of the above enumerated injuries are permanent
in nature. All of the injuries referred to hereinabove and the residuals, consequences and
sequelae of said injuries are deemed to be permanent in nature and were caused by
exposure to lead. Upon information and belief, lead is known to damage many systems in
the body, including those identified above. Lead is also known to affect growth, immune
responsiveness, hearing, and to damage other soft tissue organs, including reproductive
organs. Upon information and belief, there is a possibility that the Plaintiff will suffer
additional injuries caused by the lead poisoning, which have not yet manifested
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
themselves or been diagnosed. As discovery is ongoing, Plaintiff reserves the right to
supplement this response.
7. Upon information and belief, the Plaintiff first tested positive for lead
paint on May 10, 1994.
8. Plaintiff's blood lead levels are as follows:
Lead test date Lead level
5/10/94 21.0
10/19/94 25.0
4/5/95 19.0
9/8/97 19.0
9/14/98 12.0
9. Upon information and belief, the Plaintiff was not confined to a hospital
for treatment for the lead poisoning.
10. Upon information and belief, the Plaintiff has not been confined to a bed
for treatment for the lead poisoning.
11. Upon information and belief, the Plaintiff has not been confined to home
for treatment for the lead poisoning.
12. Upon information and belief, Plaintiff treated with the following health
care providers: Women's & Children's Hospital, 219 Bryant Street, Buffalo, New York
14222; Lifetime Health, 899 Main Street, Buffalo, New York 14203; Hodge Pediatrics,
125 Hodge Avenue, Buffalo, New York 14222 and Westside Health Center, 300 Niagara
Street, Buffalo, New York 14201.
13. At this time, Plaintiff does not have the amounts of money expended.
Plaintiff will supplement this response when said information is received.
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
. .
14. The following acts, omissions, negligence, carelessness and/or
recklessness on the part of Defendant Cimato, upon information and belief, caused
Plaintiff's injuries in whole or in part when:
a. Defendant Cimato failed to notify Ms. Hunter and Plaintiff of the presence
of lead-based paint in and on the subject premises although he knew or should have
known it was present and existed in a form in which the Plaintiff could be exposed;
b. Defendant Cimato failed to maintain the subject premises in a reasonably
careful, prudent and safe manner, and to keep such premises in good repair. Defendant
Cimato breached his duty to Plaintiff and was negligent by maintaining the premises in a
careless, reckless and negligent manner;
c. Defendant Cimato failed to repair peeling, flaking and deteriorated paint
which could and did create an unreasonable risk of injury to the Plaintiff. Defendant
Cimato failed to remove the lead based paint present in the subject premises, which could
and did create an unreasonable risk of injury to the Plaintiff;
d. Defendant Cimato failed to promptly remove the deteriorated, flaking and
peeling lead based paint after being notified by the Erie County Department of Health
that it was a danger to the Plaintiff and to other similarly situated children;
e. Defendant Cimato was negligent in maintaining the subject premises in
disrepair and in a defective, dangerous and hazardous condition;
f. Defendant Cimato was negligent in maintaining the subject premises in
such disrepair that an injury to a child such as the Plaintiff was reasonably foreseeable;
g. Defendant Cimato was negligent in allowing the subject premises to
become and remain in gross disrepair;
h. Defendant Cimato was negligent in failing to exercise that degree of care
which a reasonably prudent owner of the subject premises would exercise under the
circumstances;
i. Defendant Cimato failed to properly and adequately inspect and identify
the presence of lead-based paint and lead contaminated soil;
j. Defendant Cimato failed to complete a surface-by-surface investigation of
all painted surfaces, interior and exterior, and common areas of the premises;
k. Defendant Cimato failed to conduct follow-up testing and dust wipe
testing of the premises to determine the presence of lead-based paint;
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
.
1. Defendant Cimato failed to warn Plaintiff and/or Ms. Hunter of the lead
hazards;
m. Defendant Cimato failed to take all actions necessary to discontinue
conditions conducive to lead poisoning, by encapsulation, abatement, replacement,
enclosure or removal of lead-based paint hazards;
n. Defendant Cimato failed to properly and adequately protect the Plaintiff
from leadpoisoning;
0. Defendant Cimato provided false, incomplete or misleading
representations to the Plaintiff and Ms. Hunter that the premises were safe, fit for
habitation and/or free from lead hazards;
p. Defendant Cimato failed to take all actions to discontinue lead-
necessary
based paint hazards and conditions conducive to lead poisoning;
q. Defendant Cimato failed to properly and adequately hire, educate, train
and supervise his agents, representatives, employees, and other acting on their behalf;
r. Defendant Cimato failed to provide competent, sufficient, and adequate
agents, representatives, employees and others acting on their behalf;
s. Defendant Cimato failed to permanently keep the premises free from lead
paint hazards, lead dust and lead contaminated soil;
t. Defendant Cimato failed to determine that a condition conducive to lead
poisoning exists in the premises;
u. Defendant Cimato failed to properly sample surface coating that is
peeling, cracking, blistering, flaking, chipping, or powdering or is accessible mouthable
surfaces;
v. Defendant Cimato was negligent in failing to comply with the applicable
statutes, ordinances and regulations. Defendant Cimato maintained the subject premises
with paint with lead concentrations in a condition which violated State law, regulations
and local ordinances. Defendant Cimato failed to remove such paint in compliance with
State law and regulations, County directives and local ordinance;
w. Defendant Cimato was negligent in failing to comply with the directives
of the Erie County Department of Health to abate thelead hazards;
x. Defendant Cimato was negligent in failing to provide a premises which
was fit for human habitation and by subjecting Plaintiff to conditions which were
dangerous, hazardous and detrimental to his life, health and safety. Defendant Cimato
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
failed to do so although he had expressly and impliedly warranted the premises were safe
and fit for human habitation.
y. Defendant Cimato was negligent in removing paint or in permitting their
agents to remove paint in a negligent, hazardous and harmful manner;
z. Defendant Cimato was negligent by undertaking repairs or lead paint
removal and conducting such repairs/removal negligently and in a manner which exposed
the Plaintiff to additional lead paint exposure;
aa. Defendant Cimato was negligent in permitting lead based paint to enter
the air and litter the premises in a manner that was accessible to the Plaintiff during such
repairs/paint removal; and
bb. The abatement work was negligently done creating a hazardous condition
to Plaintiff, in that at the time the lead was being removed, Defendant Cimato and/or his
agents, servants and/or employees, failed to cover furniture and surfaces where they were
the failed to seal-off the areas where were the dry-
removing lead; they removing lead;
scrapped the chipping, peeling paint thereby creating further airborne hazards; left
extensive chipping paint throughout the residence thereby creating further airborne
hazards; broom swept the debris and lead containing chips thereby further creating
airborne hazards; failed to use a HEPA vacuum as prescribed by the Urban Housing
Development standards, all to the Plaintiff's determent.
15. A defective, dangerous and/or hazardous condition existed at the 573 West
Avenue Premises in that there was visible peeling, flaking and deteriorated paint
throughout the interior and exterior of the premises throughout the Plaintiff's tenancy at
said premises, and upon information and belief, for a period of time prior to his tenancy.
The following identifies the location of the defective condition at the 573 West Avenue
Premises:
May 24, 1994 Inspection
1. Rear door & Trim-White; and
2. Exterior window trim-White.
16. Upon information and belief, Defendant Cimato had both actual and
constructive notice of the defective conditions at the 573 West Avenue Premises.
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
Defendant Cimato had actual notice of lead paint conditions at the subject premises,
because he knew the premises were constructed prior to 1978, was aware that the paint
was peeling and chipping throughout the premises, knew of the hazards of lead-based
paint to young children, and knew that a young child lived in the resident.
Defendant Cimato had actual notice by the Erie County Health Department
sending notice of the defective conditions to Defendant Cimato. S_ee Erie County Lead
Investigation Report attached to Plaintiff's Discovery Responses.
Defendant Cimato knew or had reason to know of the defective, dangerous and/or
hazardous conditions at the 573 West Avenue Premises in that there was visible peeling,
flaking and deteriorated paint throughout the interior and exterior of the premises
throughout the Plaintiff's tenancy at said premises, and upon information and belief, for a
period of time prior to his tenancy.
Defendant Cimato, his agents, representatives and/or employees had notice
by:
a) Inspection of the premises;
b) Visible chipping, peeling, flaking, sealing and deteriorating conditions of
the paint at the premises; the prior and recurrent conditions of lead hazards at the
premises;
c) The duration of time during which the conditions existed;
d) Owning, managing and renovating buildings and/or apartments that were
constructed prior to 1978;
e) Being in the business of owning, managing and renovating other
properties;
f) The applicable and relevant statutes and regulations;
g) Reports from the media, private and public agencies, local organizations,
Federal, State, and local government agencies, and departments and other entities on the
existence of lead-based paint in homes owned and operated prior to 1978;
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
h) Knowledge that children resided at the premises; and
i) Knowledge of the hazards of lead to young children.
17. Upon information and belief, the Plaintiff did not notify any federal, state,
or local agencies or organizations with regard to the presence of lead paint at the
residence located at 573 West Avenue Premises. However, the Erie County Health
Department was contacted on Plaintiff's behalf. See Erie County Health Department
Records relating to 573 West Avenue Premises.
18. New York State Public Health Law, Article 13 §1370 (1) (2) (3); New
York State Public Health Law, Article 13, §1373 (1) (2) (3) (5); Part 67 of Title 10 of the
New York Code of Rules & 10 NYCCR NYCRR §67-2.7 -
Regulations, §67-2.1, (a) (j);
42 USC §4852d (a)(b); 40 CFR Part 745, §745.100, §745.101, §745.102, §745.103,
§745.107 (1-4), §745.65 (a)-(c); 40 CFR, Part 745, §745.80; Multiple Dwelling Law §78
(i), §80 (4), §304 (2) (11), §309 (1) (11); 24 CFR Part 35, §35.80, §35.82, §35.84,
§35.86, §35.88, and §35.92 (b) and (c); Multiple Residence Law §174; Title 24 CFR Part
35.5(a); Title 24 CFR Part 35.24 (b)(1); Title 24 CFR Part 35.24 (b)(2)(i) and 35.24
(b)(2)(ii); Title 24 CFR Part 570.608 (b)(2) and 570.608 (c)(3)(i) and 570.608 (c)(3)(ii)
and 570.608 (c)(4) and 570.608 (c)(4)(i) and 570.608 (c)(4)(ii) and 570.608 (c)(5) and
570.608 (c)(7); Title 24 CFR Part 35.24; Title 24 CFR Part 882.109; Title 24 CFR Part
Title 24 CFR Part Centers for Disease Control - CDC -
882.209; 882.211; Preventing
Lead Poisoning in Young Children (1991); 42 USC §4822; 42 USC §4851 and §4852;
Title 3, Article 5, Multiple Residence Law §40; Buffalo City Code §264 and other
various Buffalo City Codes. As discovery is ongoing, Plaintiff reserves the right to
supplement this response.
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022
. .
. .
19. Plaintiff will be claiming future lost wages. Plaintiff is in the process of
gathering
Preview
FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 EXHIBIT A FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE DESHAUN HALL PLAINTIFF'S VERIFIED BILL OF PARTICULARS Plaintiff, vs. Index No.: 802578-2013 MICHAEL CIMATO As Administrator of the Estate of SABATINO CIMATO, Deceased, THE ESTATE OF DAVID ELBESON, RONALD KARASZEWSKI, KOLO BABAGANA And MARY ANN FORLENZA, As Administrator of The Estate of MARY ANN MILITELLO, Deceased Defendants. TO: MICHAEL CIMATO as Administrator of the Estate of SABATINO CIMATO, Deceased The Plaintiff, DESHAUN HALL, by and through her attorneys, Hemming & Staehr, P.C., upon information and belief, provides the following answers to Defendant's Demand for a Verified Bill of Particulars: 1. Upon information and belief, the Plaintiff resided at 573 West Avenue, Buffalo, New York 14213 (hereinafter the "573 West Avenue Premises") from 1994 through in or around the 1995 timeframe. 2. Dashaun D. Hall; DOB: 92; SSN: 2411. 3. The Plaintiff has also been known as Deshaun Hall. 4. Plaintiff's counsel objects to this demand as overly broad, unduly burdensome and patently improper pursuant to CPLR Section 3042. Without waiving FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 . said objection, information pertaining to this demand can be obtained through depositions. 5. Plaintiff's counsel objects to this demand as overly broad, unduly burdensome and patently improper pursuant to CPLR Section 3042. However, without waiving said objection, the dates and times when the Plaintiff ingested lead based paint are all times when Plaintiff was residing 573 West Avenue Premises. Upon information and belief, exposure was by both inhalation and ingestion. Plaintiff reserves the right to supplement this response as discovery is ongoing. 6. Upon information and belief, injuries caused by the Plaintiff's lead poisoning are as follows: a) Brain and neurological damage including but not limited to, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, development and learning disabilities, cognitive and perceptual disorders, inability to process information, language deficits, hyperactivity, the tendency to become easily frustrated and distracted, abnormal aggressiveness, social, emotional and behavior disorders, a lower anticipated I.Q. level, and impaired intellectual abilities. The neurological damage is extensive and permanent; b) Interference with normal cell and system function; c) Diminished cognitive function and intelligence; d) Irreversible brain damage; e) Neurobehavioral injuries; f) Developmental deficiencies; g) Increased susceptibility to lead elevations and further lead poisoning; h) Increased probability of emotional and psychological impairments; i) Severe emotional and psychological harm; j) Future cost of psychotherapy, psychological and/or psychiatric services; k) Memory deficits; FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 1) Speech and language delays and deficits in speech and language processing; m) Speed of thought processing deficits; n) Gastrointestinal damage, including but not limited to lead colic, abdominal pain and loss of appetite suffered during the period the infant was being exposed to lead; o) Neuromuscular affects, including but not limited to extreme and prolonged muscular pain and cramping; p) Physical pain and suffering caused by painful invasive medical procedures and frequent testing; q) Physical pain and suffering caused by the medical conditions resulting from lead poisoning; r) Possibility of reduced life span; s) Probability of limited and reduced educational attainments, failure in school and in attaining academic objectives, and decreased educational opportunities; t) Probability of reduced lifetime earnings and decreased employment opportunities; u) Loss of the enjoyment of life; and v) Emotional pain and suffering. Upon information and belief, all of the above enumerated injuries are permanent in nature. All of the injuries referred to hereinabove and the residuals, consequences and sequelae of said injuries are deemed to be permanent in nature and were caused by exposure to lead. Upon information and belief, lead is known to damage many systems in the body, including those identified above. Lead is also known to affect growth, immune responsiveness, hearing, and to damage other soft tissue organs, including reproductive organs. Upon information and belief, there is a possibility that the Plaintiff will suffer additional injuries caused by the lead poisoning, which have not yet manifested FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 themselves or been diagnosed. As discovery is ongoing, Plaintiff reserves the right to supplement this response. 7. Upon information and belief, the Plaintiff first tested positive for lead paint on May 10, 1994. 8. Plaintiff's blood lead levels are as follows: Lead test date Lead level 5/10/94 21.0 10/19/94 25.0 4/5/95 19.0 9/8/97 19.0 9/14/98 12.0 9. Upon information and belief, the Plaintiff was not confined to a hospital for treatment for the lead poisoning. 10. Upon information and belief, the Plaintiff has not been confined to a bed for treatment for the lead poisoning. 11. Upon information and belief, the Plaintiff has not been confined to home for treatment for the lead poisoning. 12. Upon information and belief, Plaintiff treated with the following health care providers: Women's & Children's Hospital, 219 Bryant Street, Buffalo, New York 14222; Lifetime Health, 899 Main Street, Buffalo, New York 14203; Hodge Pediatrics, 125 Hodge Avenue, Buffalo, New York 14222 and Westside Health Center, 300 Niagara Street, Buffalo, New York 14201. 13. At this time, Plaintiff does not have the amounts of money expended. Plaintiff will supplement this response when said information is received. FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 . . 14. The following acts, omissions, negligence, carelessness and/or recklessness on the part of Defendant Cimato, upon information and belief, caused Plaintiff's injuries in whole or in part when: a. Defendant Cimato failed to notify Ms. Hunter and Plaintiff of the presence of lead-based paint in and on the subject premises although he knew or should have known it was present and existed in a form in which the Plaintiff could be exposed; b. Defendant Cimato failed to maintain the subject premises in a reasonably careful, prudent and safe manner, and to keep such premises in good repair. Defendant Cimato breached his duty to Plaintiff and was negligent by maintaining the premises in a careless, reckless and negligent manner; c. Defendant Cimato failed to repair peeling, flaking and deteriorated paint which could and did create an unreasonable risk of injury to the Plaintiff. Defendant Cimato failed to remove the lead based paint present in the subject premises, which could and did create an unreasonable risk of injury to the Plaintiff; d. Defendant Cimato failed to promptly remove the deteriorated, flaking and peeling lead based paint after being notified by the Erie County Department of Health that it was a danger to the Plaintiff and to other similarly situated children; e. Defendant Cimato was negligent in maintaining the subject premises in disrepair and in a defective, dangerous and hazardous condition; f. Defendant Cimato was negligent in maintaining the subject premises in such disrepair that an injury to a child such as the Plaintiff was reasonably foreseeable; g. Defendant Cimato was negligent in allowing the subject premises to become and remain in gross disrepair; h. Defendant Cimato was negligent in failing to exercise that degree of care which a reasonably prudent owner of the subject premises would exercise under the circumstances; i. Defendant Cimato failed to properly and adequately inspect and identify the presence of lead-based paint and lead contaminated soil; j. Defendant Cimato failed to complete a surface-by-surface investigation of all painted surfaces, interior and exterior, and common areas of the premises; k. Defendant Cimato failed to conduct follow-up testing and dust wipe testing of the premises to determine the presence of lead-based paint; FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 . 1. Defendant Cimato failed to warn Plaintiff and/or Ms. Hunter of the lead hazards; m. Defendant Cimato failed to take all actions necessary to discontinue conditions conducive to lead poisoning, by encapsulation, abatement, replacement, enclosure or removal of lead-based paint hazards; n. Defendant Cimato failed to properly and adequately protect the Plaintiff from leadpoisoning; 0. Defendant Cimato provided false, incomplete or misleading representations to the Plaintiff and Ms. Hunter that the premises were safe, fit for habitation and/or free from lead hazards; p. Defendant Cimato failed to take all actions to discontinue lead- necessary based paint hazards and conditions conducive to lead poisoning; q. Defendant Cimato failed to properly and adequately hire, educate, train and supervise his agents, representatives, employees, and other acting on their behalf; r. Defendant Cimato failed to provide competent, sufficient, and adequate agents, representatives, employees and others acting on their behalf; s. Defendant Cimato failed to permanently keep the premises free from lead paint hazards, lead dust and lead contaminated soil; t. Defendant Cimato failed to determine that a condition conducive to lead poisoning exists in the premises; u. Defendant Cimato failed to properly sample surface coating that is peeling, cracking, blistering, flaking, chipping, or powdering or is accessible mouthable surfaces; v. Defendant Cimato was negligent in failing to comply with the applicable statutes, ordinances and regulations. Defendant Cimato maintained the subject premises with paint with lead concentrations in a condition which violated State law, regulations and local ordinances. Defendant Cimato failed to remove such paint in compliance with State law and regulations, County directives and local ordinance; w. Defendant Cimato was negligent in failing to comply with the directives of the Erie County Department of Health to abate thelead hazards; x. Defendant Cimato was negligent in failing to provide a premises which was fit for human habitation and by subjecting Plaintiff to conditions which were dangerous, hazardous and detrimental to his life, health and safety. Defendant Cimato FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 failed to do so although he had expressly and impliedly warranted the premises were safe and fit for human habitation. y. Defendant Cimato was negligent in removing paint or in permitting their agents to remove paint in a negligent, hazardous and harmful manner; z. Defendant Cimato was negligent by undertaking repairs or lead paint removal and conducting such repairs/removal negligently and in a manner which exposed the Plaintiff to additional lead paint exposure; aa. Defendant Cimato was negligent in permitting lead based paint to enter the air and litter the premises in a manner that was accessible to the Plaintiff during such repairs/paint removal; and bb. The abatement work was negligently done creating a hazardous condition to Plaintiff, in that at the time the lead was being removed, Defendant Cimato and/or his agents, servants and/or employees, failed to cover furniture and surfaces where they were the failed to seal-off the areas where were the dry- removing lead; they removing lead; scrapped the chipping, peeling paint thereby creating further airborne hazards; left extensive chipping paint throughout the residence thereby creating further airborne hazards; broom swept the debris and lead containing chips thereby further creating airborne hazards; failed to use a HEPA vacuum as prescribed by the Urban Housing Development standards, all to the Plaintiff's determent. 15. A defective, dangerous and/or hazardous condition existed at the 573 West Avenue Premises in that there was visible peeling, flaking and deteriorated paint throughout the interior and exterior of the premises throughout the Plaintiff's tenancy at said premises, and upon information and belief, for a period of time prior to his tenancy. The following identifies the location of the defective condition at the 573 West Avenue Premises: May 24, 1994 Inspection 1. Rear door & Trim-White; and 2. Exterior window trim-White. 16. Upon information and belief, Defendant Cimato had both actual and constructive notice of the defective conditions at the 573 West Avenue Premises. FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 Defendant Cimato had actual notice of lead paint conditions at the subject premises, because he knew the premises were constructed prior to 1978, was aware that the paint was peeling and chipping throughout the premises, knew of the hazards of lead-based paint to young children, and knew that a young child lived in the resident. Defendant Cimato had actual notice by the Erie County Health Department sending notice of the defective conditions to Defendant Cimato. S_ee Erie County Lead Investigation Report attached to Plaintiff's Discovery Responses. Defendant Cimato knew or had reason to know of the defective, dangerous and/or hazardous conditions at the 573 West Avenue Premises in that there was visible peeling, flaking and deteriorated paint throughout the interior and exterior of the premises throughout the Plaintiff's tenancy at said premises, and upon information and belief, for a period of time prior to his tenancy. Defendant Cimato, his agents, representatives and/or employees had notice by: a) Inspection of the premises; b) Visible chipping, peeling, flaking, sealing and deteriorating conditions of the paint at the premises; the prior and recurrent conditions of lead hazards at the premises; c) The duration of time during which the conditions existed; d) Owning, managing and renovating buildings and/or apartments that were constructed prior to 1978; e) Being in the business of owning, managing and renovating other properties; f) The applicable and relevant statutes and regulations; g) Reports from the media, private and public agencies, local organizations, Federal, State, and local government agencies, and departments and other entities on the existence of lead-based paint in homes owned and operated prior to 1978; FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 h) Knowledge that children resided at the premises; and i) Knowledge of the hazards of lead to young children. 17. Upon information and belief, the Plaintiff did not notify any federal, state, or local agencies or organizations with regard to the presence of lead paint at the residence located at 573 West Avenue Premises. However, the Erie County Health Department was contacted on Plaintiff's behalf. See Erie County Health Department Records relating to 573 West Avenue Premises. 18. New York State Public Health Law, Article 13 §1370 (1) (2) (3); New York State Public Health Law, Article 13, §1373 (1) (2) (3) (5); Part 67 of Title 10 of the New York Code of Rules & 10 NYCCR NYCRR §67-2.7 - Regulations, §67-2.1, (a) (j); 42 USC §4852d (a)(b); 40 CFR Part 745, §745.100, §745.101, §745.102, §745.103, §745.107 (1-4), §745.65 (a)-(c); 40 CFR, Part 745, §745.80; Multiple Dwelling Law §78 (i), §80 (4), §304 (2) (11), §309 (1) (11); 24 CFR Part 35, §35.80, §35.82, §35.84, §35.86, §35.88, and §35.92 (b) and (c); Multiple Residence Law §174; Title 24 CFR Part 35.5(a); Title 24 CFR Part 35.24 (b)(1); Title 24 CFR Part 35.24 (b)(2)(i) and 35.24 (b)(2)(ii); Title 24 CFR Part 570.608 (b)(2) and 570.608 (c)(3)(i) and 570.608 (c)(3)(ii) and 570.608 (c)(4) and 570.608 (c)(4)(i) and 570.608 (c)(4)(ii) and 570.608 (c)(5) and 570.608 (c)(7); Title 24 CFR Part 35.24; Title 24 CFR Part 882.109; Title 24 CFR Part Title 24 CFR Part Centers for Disease Control - CDC - 882.209; 882.211; Preventing Lead Poisoning in Young Children (1991); 42 USC §4822; 42 USC §4851 and §4852; Title 3, Article 5, Multiple Residence Law §40; Buffalo City Code §264 and other various Buffalo City Codes. As discovery is ongoing, Plaintiff reserves the right to supplement this response. FILED: NEW YORK COUNTY CLERK 11/18/2022 03:06 PM INDEX NO. 451540/2021 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/18/2022 . . . . 19. Plaintiff will be claiming future lost wages. Plaintiff is in the process of gathering