Frequently Asked Questions

Lead is a heavy metal which, while naturally occurring, has no known benefit to humans.  It is a highly potent neurotoxin which is dangerous for all humans, and is most dangerous when people are exposed to lead as young children. Lead poses the greatest danger to children and is often found in old paint or paint dust, which may be found in older housing, such as in homes or multiple dwellings built prior to 1978. Lead paint exposure can cause irreversible brain damage as well as many other health problems, and behavioral or learning problems.

Lead poisoning occurs when a person (often a young child) inhales or swallows lead and it accumulates in the person’s body.  While the NY Public Health Law has defined lead poisoning as occurring at a level of  10 µg/dL (micrograms of lead per deciliter of whole blood) for purposes of overall health policy, the overwhelming consensus in the scientific community is that even low-dose lead exposure is dangerous for children and can cause irreversible brain damage.  The CDC has recognized that there is no known safe lead level.

The most common cause of lead poisoning in children is from peeling, chipping, or chalking of old paint.  A child can be lead poisoned simply by inhaling lead particles from paint which are airborne in the child’s living environment.  Young children are also exposed through routine hand-to-mouth activity after they have touched surfaces which were laden with lead paint dust, or by eating paint chips.

A landlord may be held liable for a child’s injuries caused by lead exposure in the child’s residence if the landlord was aware (or should have been aware) that a young child was residing there and/or where the landlord knew that the apartment/house contained a hazardous lead condition and nonetheless failed to remedy the lead condition.

Being sued for being negligent and poisoning a young child is not typically a legal basis to evict a tenant with a lease.

Lead-based paint often peels and chips. Often, lead paint can be found on surfaces such as door jambs or window sills or other friction/impact surfaces.  Lead paint or dust can easily be sent airborne this way, and a child can then efficiently ingest the lead paint.  Young children are also exposed through routine hand-to-mouth activity after they have touched surfaces which were laden with lead paint dust, or by eating paint chips. Once ingested, a young child’s body efficiently absorbs the lead which is deposited throughout the child’s body, including the young child’s brain.

Very often there are no symptoms and for that reason blood tests that screen for elevated levels of lead in the blood are very important. Other times the child may have symptoms which may be confused with other common childhood illnesses and conditions. Some common symptoms include loss of appetite, irritability, stomach pain, or vomiting.  You can easily understand how a mother or father can miss such symptoms thinking that the issue is a virus or even just ordinary life. This is why early and regular blood tests should be performed. In fact regular testing for lead starting at an early age has become the standard of the medical care for pediatricians.

This is a medical question best left to your pediatrician. Nevertheless, it is very important for parents to be proactive and ask that your children be tested regularly for lead, particularly if you live in older buildings. Peeling or fraying paint can be inhaled, eaten or inadvertently ingested through hand to mouth activity by children in your apartment. Poisoning can even occur in the common areas (hallways, staircases, and lobby’s) of buildings.

No. A venous blood test is accurate but it is important to understand that it is only a snapshot in time. It shows the concentration of blood at the time that the blood test is administered. Lead levels decrease as the lead leaves the bloodstream and deposits itself in the body organs of the child. The fact that your child has a particular lead level does not mean that he or she has not had higher blood lead levels at other times. It depends on the actual date of the ingestion of the lead dust or lead based paint.

Yes. Under New York State law, lead screenings must be performed at ages one and two. Medicaid also requires that screenings be performed.

An apartment can be tested to determine if the paint on the walls and other surfaces have lead contained within them. This is done either by utilizing an x-ray fluorescence (XRF) machine or by taking sample paint chips and having the sample tested in the laboratory.

You can file a complaint by calling 311 or by entering the complaint online at the New York City website located at https://portal.311.nyc.gov/article/?kanumber=KA-02134 The City will take the information and send down an inspector. If they determine that the condition is present, they will issue a violation to the landlord requiring the correction of the condition. This is very important as exposure to lead paint that is chipping can be dangerous to the health and welfare of your children. Follow up on the complaint by keeping a record of the complaint number. It is very important to be proactive and follow up on such a complaint until the hazards are corrected. Of course, you can contact our firm as well by following the contact instructions on this website.

Yes. Federal Law requires that upon signing or renewal of such a lease that the landlord give you a pamphlet prepared by The United States Environmental Protection Agency that warns about the dangers of lead based paint in older apartments and provides advice in the manner that you could protect your family. You can obtain a copy of the pamphlet on the EPA website at https://www.epa.gov/lead/protect-your-family-lead-your-home

Yes. A landlord also has disclosure requirements as to his/her knowledge of lead hazards in the housing. The analysis of this issue should be undertaken by a lawyer in the context of any prospective case that may be filed against any landlord or managing agent arising from a child’s having suffered lead poisoning from lead paint in an apartment. The disclosure form which should have been accurately filled out and provided to you by your landlord may be obtained from the United States Environmental Protection Agency at https://www.epa.gov/lead/lessors-disclosure-information-lead-based-paint-andor-lead-based-paint-hazards

The landlord’s claims are likely factually preposterous. Such assertions are sometimes presented by defendants and in almost in all cases have no validity in actual fact. This is because the Consumer Products Safety Commission banned the sale of lead based paint in all household paints starting on February 27, 1978. The only exception is for the sale of certain very limited industrial and agricultural paints that are not sold for household use and must have prominent warning labels against household use.

In many cases no. If a painter is scraping off old paint, this may cause coats of leaded paint and paint dust to be dispersed throughout the apartment. It is prudent that tenants not paint their own apartments.

Lead dust is most often found by using what is called a “dust wipe test”. The lead paint examiner will use a swab or cloth and pass it over a delineated and measured surface area. The wipe or cloth is then sealed in a container and sent to a laboratory for testing.

Lead is a neurotoxin and is certainly dangerous for young children and pregnant women.  Lead can also be passed to a fetus in utero as well as present risks and harm to the pregnant mother.  Any person in such a circumstance should seek immediate medical attention, and this history should be made available to the baby’s pediatrician at birth.

Absolutely.  You should seek immediate medical attention and such medical history should be made known to the baby’s pediatrician at birth.

Potentially yes.  In a case litigated by this office, a New York court has recognized that a child can make a claim for damages caused by lead from before the child was even born.

Yes, a person can sue for damages caused to their then-unborn child by lead paint in an apartment where it can be established that the landlord was negligent in maintaining the premises is a reasonably safe condition.

Lead exposure can cause irreversible brain damage.  It can cause damage to the brain, nervous system, slowed growth development, reduced IQ, learning and behavioral problems, ADHD, amongst other problems.  Lead poisoning also increases a person’s risks for other serious health problems later in life and can require lifelong medical monitoring.

City, State and Federal law mandate strict procedures which must be complied with when performing a lead abatement.  In New York City, temporary removal to a lead “safe house” is typically offered prior to a lead abatement, and alternative accommodations should be provided by the landlord.  It is not recommended that one be present during the performance of a lead abatement, during which time one can be further exposed to lead paint and dust.

No. See above. A child should not be present in an apartment containing lead paint until the lead hazard is removed.

A Safe House is a place where you and your child can be temporarily relocated to while renovations are performed to your apartment in order to make it safe from lead paint hazards.  The Lead Poisoning Treatment and Prevention Program at Children’s Hospital at Montefiore Medical Center in the Bronx maintains a Safe House for families whose homes are being renovated to remove lead paint.  There are also Safe Houses available in Manhattan and Brooklyn, and the NYC Department of Health should be available to assist in being placed at a Safe House.

Yes.  Every exposure to a child can cause further injury so as long as there is a lead hazard in the home, your child should not be present.  This is all the more true during a lead abatement when apartment components are being disturbed and lead dust/particles are being dispersed into the air.

While there is no known safe level of lead, and even low-dose lead exposure has been demonstrated to cause damage to children, there is no specific treatment available unless a child’s blood lead levels reach a certain level at which time a medical provider may offer chelation treatment.

Yes.  While lead is most dangerous to young children, it is a neurotoxin and is unsafe for humans of all ages.

Please consult with your child’s pediatrician.  A lead poisoned child should undergo periodic neuropsychological evaluations and be monitored for learning, attentional, and behavioral problems, amongst other potential issues.

There is no fee to speak to us or for us to evaluate your potential case.

Experts consider lead laden dust as the “primary pathway of childhood lead poisoning.” (See NYCCELP v. Vallone 100 N.Y. 2d at page 343.)

It is highly dangerous. In 1999 HUD set standards which highlight the enormity of the public health risk associated with lead dust ingestion.

The United States Department of Housing and Urban Development (HUD) set safety standards at 40 micrograms per square foot of floor area. This amount is equivalent to less than a half of the mass of a particle of sugar.

It can be ingested by eating a paint chip or flake or simply by breathing in lead dust. It is inhaled or swallowed. Inhalation is considered by experts to be the most dangerous form of ingestion inasmuch as it is considered to be the most efficient mode of absorption and consequent poisoning of the child.

Yes. There are Federal, State and City laws relating to lead paint in housing. In New York City, there is a body of law that was designed to protect children from the vagaries of injury from exposure to lead based paint hazards. Local Law #1 of 2004 is a set of laws that govern and apply to New York City. When the law went into effect in 2004 it was intended to stamp out lead poisoning in New York City by the year 2010. This sadly has not occurred for a variety of reasons.

Yes. It is defined as “any condition in a dwelling that causes exposure to lead contaminated dust from lead based paint that is peeling or from lead based paint that is present on chewable surfaces, deteriorated sub-surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects.”(See Local Law #1 of 2004)

It means “any painted surface that touches or is in contact with another surface, such that the two surfaces are capable of relative motion and abrade, scrape, or bind when in relative motion.” Friction surfaces include but are not limited to “window frames, and doors, and hinges.” (Local Law #1)

It is defined as “any interior painted surface that shows evidence, such as markings, denting, or chipping, that it is subject to damage by repeated sudden force, such as certain parts of door frames, moldings, or baseboards.” (Local Law #1)

It is defined as “a protruding interior window sill in a dwelling unit in a multiple dwelling where a child of applicable age resides and which is readily accessible to such child.” The terms also means “any other type of interior edge or protrusion in a dwelling unit in a multiple dwelling, such as a rail or stair, where there is evidence that such other edge or protrusion has been chewed or where an occupant has notified the owner that a child of applicable age who resides in that multiple dwelling has mouthed or chewed such edge or protrusion.”

The law is not solely focused on these surfaces. Yet a focus of the legislation is on such areas of the home due to the fact that lead paint on impact surfaces generates lead dust through normal daily living activities. A door slamming; opening a window; a child looking out the window and putting his fingers in his or her mouth are normal everyday events in the life of any child. In a lead infested environment, normal living becomes a serious health risk. This silent and insidious poison is ingested into the bodies of young totally innocent and unsuspecting children. Oftentimes parents are equally unaware that their family is being exposed to lead. Sometimes the first awareness of a parent that an apartment is infested with lead is their child’s diagnosis. Sadly, it is too late.

This depends on the time of exposure to lead. Before March 16, 2006 the age was under seven (7) years old. By resolution adopted on March 16, 2006, The Department of Health set the age at less than six (6) years of age.

A landlord has the duty to provide a safe and habitable premises to tenants. A landlord has various duties to remedy all reasonably foreseeable occurrences of lead paint hazards. There are many duties owed by a landlord some of which will be explored more fully in this frequently asked questions section. For any specific concerns it is advisable to promptly consult knowledgeable counsel.

Yes, a landlord has a continuing duty in any housing that a young child resides to make certain that any potentially lead based paint which may exist in the apartment remains intact and safe for those present in the apartment.

Yes.

Yes. The landlord is required to ascertain whether a child resides in a dwelling unit. They must make yearly inquiry and the forms which they must use are promulgated by the Department of Housing Preservation of the City of New York. Of course, the tenant has a duty to keep the landlord apprised so if a child begins to reside in the premises after the annual notice is answered, the landlord will be on notice under the law. The form used by a landlord and tenant can be obtained online at https://www1.nyc.gov/assets/doh/downloads/pdf/lead/lead-annual-notice.pdf

Yes. The landlord then has a window of time designated by the law to make an inspection to determine whether a child of requisite age resides in the dwelling. If he fails to gain access to perform the inspection, he then must notify a city agency known as the Department of Health and Mental Hygiene of the situation.

Yes.  Local Law #1 of 2004 also requires an annual inspection of any apartment where a child of applicable age resides  for the purpose of determining whether the apartment has a hazardous lead condition(s) present.

Yes. When major plumbing or any intrusive work disturbs the integrity of the walls of an apartment, the landlord must utilize properly trained persons using safe practices. Often, landlords and management companies cause and create hazardous conditions in buildings when they fail to follow the law and do not utilize trained and licensed lead abatement contractors and/or fail to follow safe practices. If a child is poisoned as a result of such practices, they may have a claim for damages against the offending parties.

The turnover provision requires that a landlord performing work in compliance with the turnover provision, must perform and give to the occupant of the apartment lead dust clearance test results after the work and cleanup is completed. The results must be accompanied with a sufficiently clear explanation of the meaning of the results.

This may be more difficult outside the context of litigation. You should request such records in writing from the landlord. Request that they maintain such records of purported compliance with the turnover provisions of Local Law #1 of 2004 for the complete duration of your tenancy.

Beyond that, it is prudent to consult with a lawyer who will give you guidance on any right which you may have in obtaining such lead abatement work records. Obviously, such records may be evidence that the required work was actually performed by appropriate contractors and completed correctly. As a tenant, you are not in a position to be aware of the landlord’s compliance with the law absent access to such records.

YES. The City of New York, imposed a requirement that landlords certify in writing to new tenants that all turnover work was in fact done and completed. HPD’s implementing rules state that with respect to work at turnover of a vacant apartment, an owner shall maintain or transfer to a subsequent owner records of work performed in dwelling units pursuant to this section in accordance with the record keeping requirements of § 11-06(c). In addition, the owner must make such records available to the new occupant of the dwelling unit upon the tenant’s request.

Under Federal Law, HUD and EPA have promulgated joint Regulations which require the landlord to make certain lead paint disclosures to a tenant (lessee) upon entering into a lease. The Regulation and form required thereunder mandates that the landlord disclose the presence of lead based paint and/or a lead based paint hazard that is known to them. Or, they must represent that that they have no such knowledge. If they have records and reports pertaining to lead based paint and/or lead based paint hazards in the “housing” – they must provide the records to the tenant.

• They must disclose to the leasee the presence of any lead based paint or lead based paint hazards, which are defined as conditions that cause exposure to lead from lead contaminated dust and/or lead contaminated paint that is deteriorated.

• It also requires disclosure of lead based paint on any accessible surface.

• The disclosure requirement extends to leaded paint on friction surfaces which is addressed by the turnover law as well.

• There is a confluence between the requirements mandated by the NYC Turnover Provision under Local Law #1 of 2004 and the Federal mandates under the EPA and HUD Regulations. The disclosure requirements under the EPA/HUD Regulations extend beyond and supplements the NYC Turnover Law disclosure mandate.

What does that mean to the landlord? What are his requirements of transparency and disclosure when he rents an apartment? The Regulations require that he disclose any information which may be available concerning the known lead based paint or lead based paint hazards. Local Law #1 of 2004 requires that he turn over the dust clearance test results with an explanation. The Federal mandate extends to the unit and to common areas in the building.

The landlord must provide to the leasee with an EPA pamphlet entitled “Protect Your Family From Lead in Your Home”. This important disclosure makes plain to the reader, the dangers to children of lead based paint. It details how lead gets into the body of a child. How lead affects the health of the child. It also provides information regarding what a parent can do to protect their family. It lists Federal agencies which can be contacted by a tenant in connection with such issues.

Short term leases of less than 100 days are excluded from the EPA/HUD Regulation where no renewal or extension can occur. Obviously, this would appear to exclude hotels and motels from the ambit of the law.

There are times that we have encountered landlords seeking to skirt these Regulations by refusing to provide leases to tenants. In such cases, a month to month tenancy is not terminable by its terms in less than one hundred days. Therefore, the EPA has determined that the Regulation indeed applies and the landlord must make all disclosure to the month to month tenant. They must provide the required pamphlet informing the tenant of the dangers of lead based paint. They must make all other disclosures required under the Regulation.

Penalties for non-compliance with the EPA and HUD Regulations may include the following:

1. It creates what is called a private right of action for the tenant. This private right of action allows for you to sue the landlord for any damages arising from his/her breach of the responsibilities mandated by the EPA/HUD Regulations.

2. Knowing violators may be liable to the lessee for triple ( 3X ) damages.

3. The landlord may be liable for the leases attorney’s fees.

4. The landlord may be liable for the leasee’s expert witness fees.

5. The court may impose up to $10,000 in civil penalties.

6. There are criminal penalties of up to one year in jail for knowing violation.

7. They will be liable for any other damages arising from such violation.

Yes. The landlord must conduct inspections to determine if any hazardous conditions exist. These duties are spelled out by the law.

Yes. The Administrative Code of the City of New York Section 17-910 addresses this issue.

Yes. Section 17-911 of The Administrative Code of the City of New York, provides that there shall be no peeling lead-based paint in any portion of a day care facility. Section 17-910 provides that all paint or surface coating material on the interior of any day care center is presumed to be lead-based paint.

Bring the condition to the attention of the facility and call 311 and report the condition. This must be remedied promptly given the potential hazard that the condition presents to vulnerable children.

No. Of course, the day care facility may rebut that presumption by submitting actual proof that the surface was tested and found not to contain illegal levels of leaded paint. This proof must be accompanied by a sworn statement of the owner or operator of the day care center and other proof demonstrating that the surface did not contain leaded paint in violation of the law and that testing was performed by a properly certified inspector and/or risk assessor.

Yes. The violation of the duties owed under common law and New York City and New York State law can certainly be the basis of holding the day care facility legally responsible for any damage arising and causally related to such violations.

Yes and subject to the certain limitations. By the terms of that law, a day care facility means any service which during all or part of a day regularly gives care to seven or more children under 6 years of age. The law also states that the care not be for children all of common parentage. It also must operate more than five hours per week for more than a month a year. The law also provides that the term day care facility does not include kindergarten or higher in a facility owned by the board of education (DOE).

Yes. NYC Health Code Section 45.12 prohibits peeling leaded paint or any peeling paint of unknown lead content from any kindergarten operated by the Department of Education of the City of New York. The Department of Education must annually survey the physical condition of all painted surfaces in classrooms as well as other areas used by children under the age of 6 years.

Yes. The operators of a day care facility must conduct annual surveys and more often if required, in order to determine the condition of surface paint throughout the facility.

Local Law #1 of 2004, sets forth a definition of the meaning of lead contaminated dust. The law states that “lead contaminated dust” means dust containing lead at a mass per area concentration of 40 or more micrograms per square foot on a floor, 250 or more micrograms per square foot on a window sill, and 400 or more micrograms per square foot on window wells or such more stringent standards as may be adopted by the department of health and mental hygiene. The samples must be taken by a properly trained person who will utilize proper protocol in accurately testing the location.

It is important that you obtain and record the name of the entity that is performing the testing and confirm that the person conducting the testing is a properly certified person who has been trained in lead testing. Ask to see his/her documentation attesting to certification and take a picture of it with your cell phone if at all possible. We always try to video-tape such testing, as the manner that lead samples are removed or lead dust is tested can influence the test results rendering them unreliable and possibly inaccurate. Remember, carefully document the person’s qualifications and try to create a record of the manner of testing. It is always prudent to retain a lead poisoning lawyer as early as you can after learning that there may be a lead paint issue in your apartment. In New York lead poisoning lawyers can be helpful in guiding you in assembling evidence that may be important in the event that you end up in litigation.

Under Local Law #1 of 2004, the Department of Housing Preservation and Development (HPD) has ten (10) days after receiving a complaint to inspect an apartment. In the event HPD is unable to obtain access to the apartment in order to perform an inspection it must make a second attempt within five (5) days of their first attempt to inspect. They are supposed to use an X-ray fluorescence analyzer to test for lead in the apartment if possible. If for reasons beyond the control of HPD the X-ray fluorescence analyzer is unavailable, then the Department of Housing Preservation and Development (HPD) can rely on the presumption provided under Local Law #1 as to the existence of leaded paint. If you have any questions regarding this process, it is important to contact a knowledgeable lead poisoning lawyer who can guide you through the process.

Under Section 27-2056.15 ( c ) condominiums and cooperatives are treated under Local Law #1 as  non-multiple dwellings. The owner and his or her immediate family are excluded from many of the protective provisions of this law. On the other hand there is a complex web of state, city and federal laws which may be applicable to your factual situation. Liability may attach for the negligence of other persons or entities under other laws. It is very important to consult a knowledgeable lead poisoning lawyer in New York and not rely on a brief cursory review of the situation by someone not well versed in the applicable laws. The lawyer practicing in the area of lead paint poisoning will review all of the facts and circumstances of your case to determine, what if any legal rights your child may have.

The provisions of the law provide that the owner and his or her family are excluded from many of the protections of Local Law #1 of 2004.  There is another related provision of the law 28 R.C.N.Y. Section 11-12 which makes clear, in our view, that the exclusion provided under Section 27-2056.15 ( c )  applies only to the owner and his or her immediate family. This appears to exclude the sub-leasing family for the exclusion of that law.

As in all cases involving childhood lead poisoning caused by lead based paint or lead contaminated dust, this is a complex question and the lawyer will have to examine all of the facts and circumstances to make such a determination. The condominium or cooperative corporation, the managing agent, the lessor and in some cases other parties involved may be held liable for their negligence.

The short answer is no. In order to properly clean up after the dispersal of lead contaminated dust has likely been spread in an apartment, several things have to be done. The use of a Hoover vacuum cleaner likely further spreads the hazard. What must be used is a HEPA-vacuum. Under 28 R.C.N.Y. 11-02 a HEPA-vacuum is defined as a “vacuum cleaner device equipped with a high efficiency particulate air filter capable of filtering out monodispersive particles of 0.3 microns or greater in diameter from a body of air at 99.97 percent efficiency or greater”.  When an abatement fails to follow the law, the risk of dispersal of the hazardous lead contaminated dust is increased.