Browse By Topic

Filter By Topic

Lead Poisoning FAQs

What is lead?

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.

What is lead poisoning?

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.

What causes lead poisoning in children ?

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.

Is my landlord legally responsible for my child’s lead poisoning?

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.

I live in an apartment with a two year lease. Can my landlord evict me if I sue him as a result of my child contracting lead poisoning?

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

How does lead paint get from the surfaces of an apartment or home (walls, windows, doors, etc.) to a child’s blood stream and body organs?

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.

What are the symptoms of childhood lead poisoning?

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.

How often should our children be tested for lead?

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.

If my child is exposed to lead based paint will a blood test give a definitive answer as to whether he or she was poisoned?

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.

Is screening for lead poisoning mandatory?

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

How is an apartment tested for the presence of lead based paint?

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.

My apartment in New York City has peeling and/or chipping paint and/or paint dust. My landlord refuses or has failed to correct the situation. How do I file a complaint with the City of New York?

You can file a complaint by calling 311 or by entering the complaint online at the New York City website located at https://www1.nyc.gov/nyc311-hpd-service-request/form.htm?execution=e3s2. 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.

My child was lead poisoned in an apartment building. When I signed my one (1) year lease, I had no idea as to the dangers of leaded paint to my children and was never informed about such dangers in older housing. Was the landlord required to give me such information before I rented my apartment?

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

My child was lead poisoned in an apartment in a building. After the poisoning, I was told that a prior tenant’s child was poisoned in the same apartment. Did the landlord have a duty under Federal Law to tell us that such hazards existed in the apartment?

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

My landlord failed to periodically paint my apartment as required by law. As a result of this neglect, we were compelled to paint the apartment ourselves. We went to a large national department store and purchased household paint. While the children were away for summer overnight camp, we used the paint to re-paint our entire apartment. We then carefully cleaned and mopped our entire apartment. Two years later our infant was diagnosed with lead poisoning. My landlord’s lawyers are claiming that we caused the lead condition when we re-painted – claiming that we bought lead based paint. How can we prove that this is not so?

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.

Is it safe to paint an apartment while children are present?

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.

Our apartment has a lot of white powdery dust. How can the dust be tested for the presence of lead?

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.

I am pregnant and my apartment has been found to have lead paint. Am I at risk and can my unborn child be poisoned?

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.

I am pregnant. My child was diagnosed with lead poisoning. The Department of Health has tested my apartment and found a lead paint hazard. Should I be tested for lead in my blood?

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

Does the law recognize a claim by for lead poisoning when my child was poisoned before 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.

When can I sue for my unborn child’s lead exposure?

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.

What kind of harm does lead poisoning cause to a child?

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.

My apartment has been tested by the Department of Health and they found lead paint on surfaces. The landlord wants to remove the lead while we live in the house. Should we permit it?

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.

Should a child be living in an apartment where a lead abatement (lead paint hazard removal) is taking place?

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

My doctor says that we should move out of our apartment and go to a “safe house”. What is a safe house?

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.

 

Is that really important to move out while lead abatement work is being done in my apartment or home?

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.

What medical treatments are available for lead poisoning?

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.

Are adults at risk for lead poisoning when they live in a lead infested apartment?

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

My child was lead poisoned. What kind of medical issues will doctors have to look out for in the future?

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.

I want to speak to a lawyer. Will there be any fee for you to evaluate our legal rights?

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

What role does lead paint dust have in causing lead poisoning?

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

What degree of danger is the ingestion of lead laden dust to children?

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

What are the HUD regulatory safety standards for lead laden dust?

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.

How is lead dust ingested by children

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.

Are there laws protecting children in New York City from the hazards of lead based paint in housing?

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.

Is there a definition of a “lead based paint hazard” under Local Law #1 of New York City?

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)

What is a “friction surface” under the law?

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)

What is an “impact surface” under the law

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)

What is a “chewable surface” under the law?

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.”

Why does the law focus on Chewable Surfaces, Impact Surfaces, Deteriorated Sub-surfaces and Friction Surfaces?

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.

What is a “child of applicable age” under the NYC Local Law #1

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.

Under Local Law #1 of 2004, what are the duties of the landlord to correct a lead hazard in multiple dwellings in New York City?

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.

Under Local Law #1, does a landlord have any continuing duties to maintain a lead safe environment in dwellings that children less than 6 reside?

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.

Does the landlord have a duty to remediate lead hazards and to prevent reasonably forseeable lead hazards from occurring?

Yes.

Does a landlord have the duty to find out if a child less than 6 years of age resides in an apartment in a multiple dwelling in New York?

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

If a tenant fails to send back the inquiry form, does the landlord have to take any further steps to determine whether a child of requisite age resides in the apartment?

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.

Does the landlord have to make an annual inspection to determine the condition of the apartment?

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.

My landlord wants to perform repairs that involves opening up a wall in my apartment to perform plumbing repairs. I have a child who is less than 6 years of age. Does the landlord have to utilize safeguards to protect us from the disruption of the paint?

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.

I recently moved into an apartment in a building built before 1960 in New York City. I have young children. I am concerned about the potential of leaded paint being present on the old door frames and window sills and frames. I have not been told and/or provided by my landlord with any documentation demonstrating that they did any lead abatement in order to comply with the turnover law, before we moved into the apartment. The landlord says that the apartment in “lead safe”. They refuse to give me any other information. Are they complying with the law?

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.

How do I obtain the actual work records showing that a properly trained and certified company performed the required work?

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.

Are there any statutes or Rules and Regulations that require the landlord to make full disclosure of his compliance with the turnover provisions of Local Law #1, directly to a tenant outside the context of litigation?

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.

What does the landlord actually have to give me regarding their knowledge of lead hazards?

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.

What other disclosure does a landlord have to provide to a lessee regarding lead hazards?

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.

If I do not have a written lease, am I covered by the Federal EPA and HUD Regulations requiring disclosure of lead based paint hazards?

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.

If a landlord refuses to give a lease will that exempt him from the requirements 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.

My landlord did not provide any disclosure as to the presence of lead based paint in our apartment nor were we provided with the Protect Your Family from Lead in Your Home pamphlet. What are the penalties under Federal Law for non-compliance?

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.

Under Local Law #1 of 2004, does a landlord have a duty to investigate for lead hazards in premises where a young child resides?

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

In New York City, are there any laws protecting children in day care facilities from lead-based paint hazards?

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

My child attends a day care facility and I observed chipping paint from a baseboard. The building was built before World War II and I am concerned. Does this violate the law?

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.

What can I do to protect my child attending a day care center which has chipping paint on door, baseboard or wall surfaces?

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.

Is the presumption that the paint is leaded final?

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.

If a child was lead poisoned at a day care facility, can I sue the facility to recover damages?

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.

My child is in a pre-K program at a day care facility run by a school. Is that considered a child care facility under the New York City statute?

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).

I have a child in a public school kindergarten in the City of New York. This is not a day care facility. Are there any laws which protect my child from the hazards of lead based paint?

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.

Are operators of day care facilities required to periodically inspect their facility for the presence of chipping and or peeling lead paint?

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.

Under Local Law #1 of 2004, what is the definition of “lead contaminated dust”?

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.

My landlord wants to perform lead dust testing in my apartment. How should I ensure that it is done properly?

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.

I called 311 to complain about chipping paint in my apartment. I have a child who is 3 years old and she has previously tested positive for elevated lead levels in her blood. How long does the City of New York have in order to conduct an inspection of my apartment?

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.

I am the owner of a condominium unit in the City of New York. Are the provisions of Local Law #1 applicable to my apartment? My child was diagnosed with an elevated lead level and the management company never advised me that there was any lead in my apartment.

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.

I rent my apartment from an owner of a condominium and my child was poisoned by lead based paint that was chipping on a friction surface. Is my child afforded the protections of Local Law #1 of 2004 or will the child be excluded from the protections of Local Law #1 under 27-2056.15 ( c )?

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.

If I sublease a condominium or cooperative apartment, who is legally responsible for the presence of the lead based paint and the damages sustained by my lead poisoned child?

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.

My landlord performed what he called as a lead abatement in my apartment after the Department of Health issued several violation for the presence of lead based paint and dust on a window sill and window well in our living room. He removed both windows and enclosures. I saw him vacuum the carpet after they were done with a regular Hoover vacuum that you can buy at any appliance store for household use. Is that sufficient?

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.

The New York City “turnover Provisions” of Local Law #1 of 2004

What is the definition of a “turnover” in the context of the obligations of a landlord to correct a lead paint hazard in a New York City apartment?

A “turnover” means the occupancy of a dwelling unit after the termination of a tenancy upon the vacatur by a tenant after the effective date of Local Law #1 of 2004 to wit: August 2, 2004. What this means is that any new tenant who commenced his/her tenancy after August 2, 2004 is afforded the protections granted by Local Law #1 and a landlord has the corresponding duties with respect to lead abatement as set forth in the law to this/these new tenant(s) before they move in.

What are the legal obligations of a New York City landlord to the new tenant when an apartment becomes vacant in any apartment (not just a multiple dwelling; when it is to be inhabited by persons other than the owner or the owners family) after August 2, 2004?

1. He must remediate all lead based paint hazards (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”) and any underlying defects when such defects exist. (27-2056.8 of the Administrative Code of the City of New York)

2. He must make “all bare floors, window sills and window wells in the dwelling unit smooth and cleanable”. (27-2056.8 of the Administrative Code of the City of New York)

3. He must “provide for the removal or permanent covering of all lead based paint on all friction surfaces on all doors and door frames”. (27-2056.8 of the Administrative Code of the City of New York)

4. 1. He must “provide for the removal or permanent covering of all lead based paint on all friction surfaces on all windows, or provide for the installation of replacement window channels or slides on all lead based painted friction surfaces on all windows”. (27-2056.8 of the Administrative Code of the City of New York)

What is the legal significance of the “turnover provisions” of Local Law #1 of 2004?

It is important to realize that the provisions of this law and the clearly defined duties noted above are not limited to apartment buildings and buildings that have three (3) or more separate apartments. They protect everyone (other than the landlords own family and dwelling). These turnover provisions are increasingly impactful as they apply to an overwhelmingly large universe of apartments in the City of New York due to the passage of time since Local Law #1 of 2004 became effective and thus many cases involve tenants who have moved in after August 2, 2004. These turnover obligations go well beyond the other protections afforded by Local Law #1 of 2004, to children less than six (6) years of age, inasmuch as the turnover provision duties have no age limitation. There are no residency limitations written into the turnover law. There is a clear and unequivocal affirmative duty to perform the abatement before new tenants move into the apartment thereby safeguarding the new tenants (and others) from the hazards of lead based paint.

How do I obtain the actual work records showing that a properly trained and certified company performed the required work?

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.

What is the penalty imposed by Local Law #1 for a violation of the turnover provisions?

Any owner who violates the law is liable for a class C immediately hazardous violation. The violations of this section may also be evidence of negligence. If such violation causes injury to others civil legal liability may ensue.

My landlord has refused to give me records of the “turnover” work which he was required to perform before I moved into my apartment. What types of records was he required to maintain?

The law requires that he maintain very detailed records. The records include the following items:

  1. The name, address and telephone number of the person(s) or entity which performed the work purportedly performed. We have found that in some cases landlords contend that they have performed work in compliance with the law but when called upon to provide documentation and proof, they have been unable to locate the records. The law mandates that they maintain the records for a period of 10 years from the date of the completion of the work. If they sell or transfer the building to a new owner, then the landlord who performed the work must transfer the turnover repair records to the new owner and the new owner must maintain such records for the duration of that 10 year record keeping period. It is important to note that once a law suit is commenced, the defendant has a continuing duty to maintain the records. Assuming the suit is commenced before the expiration of that 10 year period, the owner would arguably be required to maintain the records beyond that 10 year period. The defendant in a law may not destroy relevant records and that should be at least until the resolution of the law suit. If they destroy the records during the law suit, the court may impose sanctions for spoliation of evidence.
  2. The landlord must also keep a copy of all licenses and training certificates of the persons or entities which performed the work and dust clearance tests.
  3. A detailed rendition of the work with records of where the work was performed and all receipts related to such work.
  4. All lead test results must be kept for that 10 year period.
  5. They must keep checklists completed when occupants are allowed temporary access to the premises during work.

No Fault FAQs Some Common Questions about the New York No Fault Law.

What Is No Fault Insurance?

This is a law which requires insurance companies to provide for payment of limited physician, hospital, therapist and other health related expenses, including travel to and from treatment and related to your injuries. Coverage includes reimbursement of limited loss of wages arising from injuries suffered in motor vehicle accidents without regard to fault.

If I Was 100% at Fault in Causing the Accident Will I Be Covered?

Yes. Provided you are a covered person.

Who Is Covered by No Fault Insurance?

If you are were a driver or passenger in certain motor vehicles such as a car and which was involved in an accident such benefits are available to pay for health care related expenses regardless of whether you were or were not at fault in causing the accident.

Is a Pedestrian Who Was Hit by a Vehicle Covered by No Fault Insurance?

Yes.

Is a Cyclist Which Is Involved in an Accident With a Car, Taxi, Bus, or Truck Covered?

Yes.

Are Motorcycles, ATV’s and Mopeds Covered by No Fault Insurance?

No. But note that the owner of a motorcycle may be able to purchase insurance that will cover medical and related expenses.

Are My Medical Bills Covered?

Yes. But subject to limitations.

Will I Be Reimbursed for My Loss of Earning as a Result of the Injuries Sustained in a Motor Vehicle Accident?

Yes. But subject to limitations.

Are There Limits to Such Reimbursements for Loss of Wages and Medical Expenses?

Yes. The New York no fault insurance law provides for mandatory minimum coverage of $50,000 for all losses covered by such insurance. It is possible to purchase supplemental No-Fault insurance coverage for an added premium. Of course this has to be purchased before an accident for which a claim is to made occurs. It cannot be purchased after the fact.

What Are the Limits for Payment of My Loss of Wages?

You may receive 80% of your wages with a limit of $2,000 per month for up to 3 years after an accident occurs.

Can I Sue for My Pain and Suffering and Other Losses?

Yes, provided you have an injury that passes the “threshold” of a serious injury as outlined above.

Do Passengers on a Bus Have No Fault Coverage?

Yes.

Which Insurance Carrier Provides No Fault Coverage for Passengers Injured on a Bus?

If you have a car with New York no fault coverage (if you own a car and have insurance, then you do) then the insurance carrier covering your car should pay the No Fault claim. If not, the bus company’s insurance carrier will provide such No Fault coverage.

Can I Sue if I Claim No Fault Benefits?

Yes, provided you have an injury that passes the “threshold” of a serious injury as outlined above.

I Was Struck by a Car While Biking in New York City. I Own a Car. Whose Policy Should I File My No Fault Claim Against?

The insurance policy covering the auto which struck your cycle. It is prudent to place your own insurance policy on notice of the accident as well.

When My No Fault Benefits Run Out, Who Will Pay for My Medical Bills?

Your own health insurance policy. If you are on Medicare or Medicaid, the bills should be submitted to them.

Motor Vehicle Accident FAQs

Under New York Law, can a husband sue his wife or can a wife sue her husband for personal injuries arising from a motor vehicle accident?

Yes.

Will there be insurance coverage in a law suit where a wife sues her husband or a husband sues his wife alleging that they were negligent in the operation of a vehicle and that such negligence caused their injuries?

The answer is that it depends. If a rider is purchased (before the accident) in the underlying insurance coverage providing for what is called “supplemental spousal liability insurance” then in said event, there will be insurance that will be available.

Under what circumstances will this coverage be important to have?

There are situations where an accident occurs when either the husband or wife are driving and may be negligent in whole or in part causing injury to the other. The spouse wants to recover for their pain and suffering and other losses and wants to sue. Without this coverage the potential recovery will be against the personal assets of the other. If there is insurance, the insurance carrier will be responsible to pay up to the limits of the insurance coverage.

When involved in a motor vehicle collision what steps should a person take?

In a nutshell, do everything to preserve the evidence. You or family or friend should promptly take photographs of each of the vehicles from all angles including the license plate in at least one photo which depicts an overview of the vehicle.

Should I take photographs of skid marks?

If you see skid marks, take a picture of the marks. Remember to bear in mind that you should take at least one photo showing the skid marks while viewing the overall location.

Should I photograph the general location of the accident?

Yes. One should also look carefully at the adjacent structures to see if there are any visible surveillance cameras. If you see the cameras, take a photo of it. This will help in gathering all available evidence.

Should I take witnesses names?

Yes. It is important to obtain their phone numbers and addresses as well.

How do I obtain a police report?

The police at the scene should give you the anticipated police report number and the precinct telephone number. When complete, you should be able to pick it up from the precinct.

Should I speak to my own insurance company?

Only communicate with your own insurance company. Immediately place them on notice of the accident. You have a duty to cooperate with your own insurance carrier and should call them immediately after the accident.

Do I have to speak to the other insurance company?

No. Never speak to the other insurance carrier. Leave any communication with the other insurance company to your lawyer.

Uber Accidents FAQs

If I was a passenger in a Uber vehicle and involved which was involved in an accident, what steps should I take after the accident?

Obviously, a person should promptly seek medical attention. Legally, it is important not to give any statements to any insurance company or investigator retained by another party and/or insurance carrier. Obtain the name and information contained in the vehicle and ask to copy or make a photo of the license of each driver involved in the accident. If possible, obtain the names and addresses of all witnesses including the passengers in each vehicle. Ask your driver for his insurance card and make a copy of the card. Obtain the police accident report of possible. Always try to obtain the plate numbers for each car involved in the accident. Take photos of any damage to the vehicle and any skid marks, (or lack of skid marks) if possible.

Most often in serious accidents you were likely taken to the hospital after the accident and may have received at least some preliminary medical attention. If you require surgery, it is very important, if medically possible to locate a physician who is very experienced in the particular type of medical issue that must be addressed.

Is there any unique information that I have to obtain from a Uber driver?

If you are a passenger in the Uber vehicle, you will likely have the name of the driver and the basic data required to identify the driver and timely report same to Uber and their insurance carrier. Obtain the basic information that you would in any accident. If you were not a passenger in the Uber car which was involved in the accident, obtain the license plate number and if possible any other identifying data indicating that the vehicle was a Uber vehicle.

Will my medical bills be paid if involved in an accident with an Uber vehicle.

Yes. You are covered by No-Fault insurance and Uber maintains an insurance policy with $50,000 in basic Personal Injury Protection coverage.

Will I be able to claim loss of earnings from No Fault insurance if involved in an accident with a Uber vehicle?

Under what circumstances will I be able to sue for my personal injuries and pain and suffering?

As with any motor vehicle accident in New York State, you must have suffered what is called a “serious injury” as defined by law in order to maintain an action. The fact that the accident involved a Uber vehicle does not alter the basic rules applicable to any motor vehicle accident in New York State.

In the event of an accident with an Uber vehicle which was in the course of transporting a passenger, how can I contact the Uber vehicle’s insurance carrier?

Uber drivers involved in accidents while in the course of driving a passenger are covered by insurance which is issued under the Uber insurance policy plan. The insurance company presently providing such group coverage is James River Insurance Company. The claims department may be contacted by calling (804) 289-2712. The e-mail number is New.Claimsnotices@jamesriverins.com and the fax number is (804) 420-1058. If you or a loved one is involved in accident with or while a passenger in a Uber vehicle, it may be advisable to have your lawyer contact James River Insurance Company.

Prior to communicating with an insurance carrier, it is important that you contact and/or retain a lawyer who can act on your behalf. It is also important that your lawyer determine all insurance carriers who should be placed on notice of the occurrence of the accident as it is required that prompt notice be given to all of the appropriate insurance carriers.

Bicycle Injuries FAQs

I was operating a bicycle on a New York City street. A car struck my bicycle leaving me with serious physical injuries. I was taken to the emergency room. After my initial treatment I was treated by my family physician. Which insurance carrier is obligated to pay for my medical bills?

If you were struck by a car as described – think “No Fault Insurance”. The fact is that in most such situations you will be covered by no fault coverage as the primary insurance. That being the case, it is very important that you timely determine which insurance carrier will cover your injuries. In this case, the vehicle which hit your bicycle and caused your injuries will be responsible for such medical bills.

How long do I have to file a No Fault application for benefits?

It is very important to file the application for benefits within thirty (30) days of the accident though there are limited circumstances that such period can be extended.

How do I obtain the insurance carrier information from the car that hit me?

If you were advised already, you should immediately obtain the police accident report from your local police precinct. Bring proper identification if you go to the local precinct. This is the most effective manner of obtaining the report and should be done promptly after the accident. Alternatively, older police reports can be obtained by contacting the Department of Motor Vehicles online at https://dmv.ny.gov/get-accident-report.  Of course an attorney retained by you can obtain the report as well.

What information is contained in a police accident report?

The police report (MV104 -AN) will likely and should contain an insurance code for the vehicle that hit you. The code will reveal the identity of the applicable insurance company providing coverage to the motor vehicle. It will also provide basic information such the location of the accident, the identity if the driver and may indicate statements made by you and the driver of the other vehicle. It may also identify any witnesses to the accident. It is prudent that you speak to and retain your own lawyer. If possible, this should be done early in the process and that they communicate with the insurance carrier on your behalf.

Who prepares the application for No Fault benefits?

It is advisable to seek an attorney to guide you through this process and normally when you retain an attorney in a personal injury and/or property damage case, the lawyer will guide you through the no fault application process as well.

This process seems to be complicated. I am looking to retain an attorney. Will the attorney guide me thorough this process.

It is advisable to seek an attorney to guide you through this process and normally when you retain an attorney in a personal injury and/or property damage case, the lawyer will guide you through the no fault application process as well.

I am out of work due to the injuries sustained when the car hit my bicycle. Will I be covered for my loss of earnings?

Yes. But the coverage has limits. There is a maximum limit of such payment of $2,000.00 per month for lost wages for a maximum of up to 3 years after the accident. Of course, the overall limits of personal injury protection will apply. Usually this is a $50,000 limit of coverage.  There are additional coverages which may be available depending on the case.

If the accident was caused by the fault of the bicyclist, will he or she be entitled to receive No Fault coverage including loss of wages?

Yes.

I was driving a bicycle and was in an accident with an uninsured car. Am I covered by No Fault insurance?

Yes. You may be covered by MVAIC or your own policy or a policy of insurance of a household member. You should promptly file the MVAIC intention to make a claim. They will require that you first seek benefits from the own policy or the policy of a household member. They likewise should be put on notice promptly. In order to receive guidance in filing such a claim go to http://www.mvaic.com/file-a-claim.

What kind of forms will I need in order to obtain my loss of earnings?

After the filing of the no fault application, in order to obtain payment for loss of earning, it necessary that a no fault wage verification report be filled out by your employer.  The text of the form may be obtained online at the following website: http://www.lmlawnyc.com/Legal-Documents/Wage-Verification.pdf

What forms will have to be filled out in order for my physician to be paid?

Among the types of forms which you and your physician will submit will be the “New York Motor Vehicle No-Fault Insurance Law Verification of Treatment By Attending Physician or Other Provider of Insurance” form.  This will be prepared by you and also by your treating physician and/or health care professional. This should be done promptly and without delay. In order to see what this form looks like, it can be accessed at the following web address: http://www.dfs.ny.gov/insurance/r68/nf3.pdf

I was driving my bike in New York City and was in an accident with a motor vehicle. My bike was totaled. How can I obtain payment for the value of my bike?

Your property damage claim will become a part of your personal injury action if you have sustained serious injuries and choose to commence an action for damages. A person may maintain an action for the recovery of property losses independent of any personal injury action.

How will my bike be valued?

There are various ways of determining the value of a bike. The age and condition of a bike at the time of the accident will be one of the issues which must be addressed. Assemble all relevant data including purchase documents, photographs, add on cost documentation, and any other relevant information. You may check the online bluebook values. All these documents and data should be provided to your attorney.

Will my bike be considered a vehicle under New York law?

Yes.

I was forced out of my lane when a car without prior notice or any warning, suddenly stopped and blocked my bike lane in Brooklyn, New York. The driver came out and blamed the other driver and myself for the accident. Does he bear at least some culpability for causing this accident?

In New York City the New York City Department of Transportation Traffic Rules prohibits such conduct and a court may find him culpable depending on the totality of all of the fact of the accident.  (See the NYC Traffic Regulations at http://www.nyc.gov/html/dot/downloads/pdf/trafrule.pdf

Are there any statistics which demonstrate the location of greatest danger to bicyclists within the City of New York?

Yes. The New York City Department of Transportation has determined that most crashes leading to the most severely injured cyclists and/or tragically to fatalities occur at intersections. (89%) The New York City Department of Transportation has undertaken a study that examines the safety impact of various intersection designs. They will also issue recommendations for the modification of intersection design so as to protect the health and safety of bicyclist in the City of New York.

What are some of the factors leading to crashes between motor vehicles and bicyclists within the City of New York?

The Department of Transportation has found that there are three top types of crashes resulting in cyclist fatalities. The first was collisions caused by the cyclist and motor vehicle traveling adjacent to each other and too close. Obviously, this factor reduces the margin for a motorist mistake and increases the likelihood of a collision. This represented 29% of such serious accidents. The second factor involved in very serious accidents were collisions caused when the bicyclist and vehicle were traveling at right angles. This represented 27% of such serious accidents. Motor vehicle collision with bicyclists while making turns represented 21% of such serious crashes. For more expansive data and to download a very significant study, please see the complete report entitled “Safer Cycling Bicycle ridership and safety in New York City” at http://www.nyc.gov/html/dot/downloads/pdf/bike-safety-study-fullreport2017.pdf

Are there any compilations of data reflecting the total number of bicycle crashes within the City of New York?

Yes. Local Law 13 of 2011 mandated that the Department of Transportation compile such statistics.

What is the source of the Department of Transportation data?

The data is tabulated by reference to the content of filed police accident reports (MV—104).

How is the data broken down?

The report determines the total number of New York City crashes involving bicyclists. It also breaks down the nature of the crashes delineating the percentage of cyclist crashes involving motor vehicles; cyclists and pedestrians and pure cyclist crashes involving other precipitating causes.

Where can I obtain access to prior years of data?

Can I held liable if I am in an accident with a pedestrian?

The short answer is yes.

I do not own a car nor does any person living as part of my immediate household. I live in New York City. I do not have apartment renters insurance. Can I obtain insurance covering me in the event that I am sued for injuring a pedestrian?

Yes. Such insurance is available.

I was involved in an accident while driving my bike. I was hit by a car which suddenly swerved into my lane knocking me from the bike. The bike is totaled and I suffered serious injuries. I live in an apartment and do not have room for a broken bike. Do I have to keep the bike and if I do, for how long?

The condition of a bike after an accident can be forensic evidence material and necessary in a law suit alleging negligence. An expert may be able to opine on speed and direction depending on the condition of the bike and the particular facts of a case. It is imperative that you not throw away potentially relevant evidence and keep it until your lawyer advises you otherwise.

How can I have the evidence stored?

In many cases your lawyer will take control of the evidence and maintain the evidence by having a forensic evidence storage company take control of the proof. It may also be necessary for your lawyer’s retained experts to examine and test the evidence. Though this seems simple it is imperative that it be done properly due to potential evidentiary issues which can arise. The collection of the forensic evidence includes the process of documenting the evidence throughout the process, marking of the evidence, preparing and maintaining proper documentation, taking photographs and carefully documenting the chain of custody of the evidence. The item then is placed in secure storage and maintained with proper documentation. This should not only be limited to your bike but also any and all other relevant evidence.

Should I keep my bike helmet or clothes.

Absolutely. Your shoes or sneakers which you were wearing as well.

If I destroy such evidence and I sue to recover for my personal injuries, what penalties can be imposed?

Depending on many factors, if a court finds that a plaintiff or a defendant has spoliated evidence, it may impose minor or in some cases very serious sanctions including dismissal of the case or in the case of a defendant, striking of an answer and imposing a finding of legal liability against the offending party. In short, never spoliate evidence. Period. Get it to your lawyer and make sure that it is properly maintained.

I was involved in an accident. I have data on my Strava App which was measuring and maintaining data on my movement at the time of the accident. Do I have to preserve this evidence?

Yes. The data can and should be downloaded and preserved. It certainly may be considered relevant and material evidence. It can be subject to the duty to maintain all material and relevant evidence. Do not destroy this data and take steps to preserve the evidence.

I was wearing a GoPro type device and have a recording of the accident. What should I do with the recording and data?

This must be properly preserved. Turn it over to your lawyer. Do not post it on Facebook or other social media. The video will be part of the proof in your case. Certainly, do not destroy such evidence as this is relevant evidence and can meet with court imposed sanctions in the event it is destroyed.

I ride my bicycle in Brooklyn on a street where there was a bike lane. Am I bound to follows the laws applicable to a car or other motor vehicle?

Yes. The New York State Vehicle and Traffic Law (VTL Section 1231) expressly provides that “every person riding a bicycle…. upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle….” Obviously, there are some special rules that apply to bicycles and to such extent you are treated differently than a car which has its own applicable rules.  Bicyclists and all motorists are mandated by law to obey the statutes and rules governing the operation of such vehicles and most importantly are entitled by law to assume that other drivers will follow such laws as well.

In practice what does this rule mean to the driver of a bike?

It means that if you violate a statutory rule of the road that you will be liable for the damages, if any, that are caused by such acts and omissions. For example, if you fail to obey a yield sign and proceed into an intersection while failing to yield the right of way to a car already in the intersection, then in the event someone is injured, you will be considered negligent and liable for all damages proximately flowing from such conduct. It will also result in you being unable to recover for your own injuries if it is found that you were solely responsible for the accident without any culpable fault on the part of the other driver.

Are there any rules requiring drivers to keep a lookout for bicyclists?

Generally, all motorists must keep a reasonably vigilant lookout for persons operating bicycles on the streets of the City of New York and must sound their horn whenever a reasonably prudent driver would in order to warn the bicyclist of danger. The driver must operate his/or her vehicle with reasonable caution and care and must do so in a way so as to avoid a collision with anyone including a bicyclist who may be operating his/her bike on the roadway.

When riding a bike on a street that does not have a designated bike lane, is there a location of the street where the bicyclist is required to operate the bike?

Yes. Vehicle and Traffic Law Section 1234, provides that a bicyclist must operate the bike in a usable bike lane or if such a lane is not provided, “near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonable necessary to avoid conditions that would make it unsafe to continue along the right-hand curb or edge.” It is important to note that in the City of New York, N.Y.C. Traffic Rules and Regulations provide that when there is no bike lane provided and the street is a one way thoroughfare, bicyclists may use either side of a street ride, provided the street is 40-feet wide or more.

What are the “unsafe” conditions that would permit the operator of the bike to operate the bike differently as noted above?

The statute lists a few examples of conditions which are not exhaustive: “fixed or moving objects, vehicles, bicycles, in-line skates, pedestrians, animals, surface hazards or traffic lanes too narrow for a bicycle and vehicle to travel safely side-by-side within the lane”. The statute appears to state that there may be times that a roadway permits the operator of a bike to ride a bike in the middle of the thoroughfare provided there would not be sufficient room for both the bike and the motor vehicle to ride side by side.

Can I be issued a ticket if I do not ride my bike to the right of the roadway?

Yes.

Will the ticket constitute a moving violation on my license and if so, will I receive points for such a violation?

In this specific situation, The Department of Motor Vehicles has held that the violation is considered a moving violation but there would be no points on the operator’s license.

Will I receive a penalty for such a violation?

You are subject to a fine. There is no surcharge, no points and no conviction on your driver’s license arising from this ticket.

I use my bike to deliver packages. At times I have multiple packages which prevent me from placing both hands on the handle bar. Is this legal?

No. It violates Section 1235 of the Vehicle and Traffic Law.

I drive my bike at night. Does the law require me to have a lamp affixed to the bike in order to illuminate the area in front of the bike while it is dark?

Yes. The lamp must emit white light visible during hours of darkness from a distance of at least 500 feet to the front. Under Administrative Code of the City of New York, a lamp must be used dusk to dawn.

Does the law require any rear lighting when I ride my bike at night?

Yes. You must have a red or amber light which is visible to the rear for 300 feet.

Is there a requirement that the light be visible from the side?

Yes. One of the lamps must be visible at least 200 feet from either side of the bike.

Is there any requirement that a bike be equipped with a bell or other device that emits a signal audible to others?

Yes.

Must a bike have a reflector?

Yes. The law requires the front a rear tires to have a reflector. The front tire must be colorless or amber. The rear tire must have a reflector that is colorless or red.

Can a violation of the law requiring a front or rear lamp be admissible on the issue of fault, when there is an accident between a car and a bike at night and the car contends that the lack of the lamp was a proximate cause of the accident?

Yes. This is potentially a very significant issue in an action for personal injuries involving a bicyclist and a motor vehicle which occurred at night.

I am an adult. May I be permitted to ride my 26 ‘’ bicycle on a sidewalk in the City of New York?

No. Unless there is a sign providing otherwise, the bike can be confiscated and/or the driver may receive a fine.

Are children permitted to ride a bike on a sidewalk in the City of New York?

If the bike is smaller than 26” in diameter and the child is less than 12 years of age. In any event, the bicycle must be driven with caution and reasonably. Under certain circumstances, notwithstanding the fact that such activity may be allowed by law, legal liability can attach. As such one should carefully supervise such activity on busy sidewalks.

I have a child that is less than a year old. Is it permissible for me to transport my child on my bike in the rear child’s seat?

No. This violates VTL Section 1238 as well as New York City law.

At what age may I place my child in a child carrier on my bike?

The law provides that you may transport a child who is one or more years but less than five years of age on a properly affixed child carrier. The child must also wear an approved helmet.

Is there any requirement that riders of bicycles in New York City wear helmets for their protection?

The law provides that children from the age of five (5) years of age and less than fourteen (14) years of age must wear an approved helmet when riding a bike in New York City.

I ride a bicycle in the City of New York. Is there any requirement for me to use hand signals

Yes.

I have no idea what constitutes a proper hand signal. Does the law give any guidance?

Yes. A left turn is shown by extending your left arm horizontally. A right turn is shown by extending your left arm upward or right arm extended horizontally. To show that you are decreasing speed extend your left hand and arm downward.

I love to use my earphones when I ride my bicycle. Is there any limitation on the legal use of earphones when riding a bike under the law?

Yes. A rider may not wear more than one earphone attached to a radio, tape player, or other audio device while riding a bicycle.

I am a New York City resident and have observed many riders of bikes utilizing them for commercial purposes. Are there any special rules or laws that apply to such riders?

Yes. There are quite a few requirements which have been imposed by law in the City of New York.

What are some of those requirements?

The New York City Administrative Code mandates that the business must:

  • Identify the business on the bike by name and ID number;
  • The operator of the bike must wear upper body apparel which has the business name and the operators number on the back;
  • The business must provide the operator of the bike with a helmet which complies with A.N.S.I standards;
  • The operator of the bike must wear the provided helmet;
  • The operator must have a numbered ID card with his photo, name and address and business name address and phone number; (He must produce it if asked by authorities or in an accident.)
  • The business must keep a very detailed log book which includes the name, ID number, and place of residence of each bike operator and the dates of his or her employment and discharge. The log book must also include information on the daily trips and identify the bicycle operators ID number and name. The log book must list the name and place of origin and destination of each job.
  • The owner of the business must file an annual report with the New York City Police Department identifying the number of bicycles it owns and the ID number and any identity of it’s employees.

I live in New York City and love to ride my bike in Central Park. Are there limitations on where I may legally ride my bike?

The N.Y.C. Traffic Rules provide that no person may ride a bicycle in any park, except in places designated for bike riding.

In the City of New York, am I permitted to ride a bike on bridges?

The law prohibits riding a bicycle on “expressways, drives, highways, interstate routes, bridges and thruways” (NYC Traffic Rules 4-12 (o) (1)), unless there are specific signs authorizing such use.

I was involved in an accident with a bicyclist in the City of New York. Was he required by law to stop and give his identification and if so, to whom was he required to provide such information?

Pursuant to NYC Traffic Rules Section 4-12 (h) a rider of a bicycle who is involved in an accident resulting in injury to person or property or death, must stop and give his or her name, address, insurance information, if any, to the police department.

In the City of New York, is it permitted for a motor vehicle to stop in a lane designated for bike riders?

No. It is not permitted to park, stand, or otherwise obstruct a bike lane.

I was driving a bicycle and was involved in an accident when I came in contact with a pedestrian who was crossing the bike lane. Was I required to give my identification to the injured pedestrian?

Yes. The Vehicle and Traffic Law requires that anyone who has operated a bike and knows that he or she has been in an accident in which another person has suffered personal injury, to stop and provide his or her name and residential address to the injured person. If the police are present you must provide this information to the police. If police are not at the scene, you should as soon as practicable, report the accident to a police precinct nearest to the location of the accident. Leaving the scene of such an incident without providing the information is a violation. If you are over 18 and leave the scene of an accident where you have reason to believe that someone was seriously injured, then such conduct may be a class B misdemeanor depending on the severity of the injury. In other words, if you are in any accident whatsoever, stop and exchange information. It is prudent to call and have a policeman handle the situation.

Slip & Falls FAQs

Who is legally responsible to maintain New York City sidewalks?

When is the City of New York responsible to maintain a sidewalk in a reasonably safe condition?

I fell on a sidewalk in front of an owner occupied three family home that is used solely for residential purposes. Who can I sue?

What requirements must be met in order to prevail in a law suit against the City of New York when the defective sidewalk is abutting a one-two or three family owner occupied private residential building?

I fell because of a defective sidewalk in front of a two-family residence which is owner occupied. The house has a store on the ground floor used by a business. Who is legally responsible for the negligent condition?

I live in an apartment building which has 60 separate apartments. I fell on a sidewalk defect in front of the building which was caused by the roots of a tree which lifted the sidewalk flag leaving the sidewalk uneven. Who is legally responsible for this defect which caused me to fall?

The City of New York removed a fire hydrant leaving a hole in the sidewalk in front of my apartment building (the building contains more than three (3) apartments). Someone was injured when they stepped into the open hole. Who should be sued for this defect, the property owner or the City of New York.

I was injured when I tripped on a tree root in a tree-well which I did not see and which had giant roots protruding upward within the tree well. Who is legally responsible for this defective condition?

Does an owner occupied three family condominium qualify for the statutory exemption from liability for defects on the abutting sidewalk?

If the abutting property owner negligently repairs a tree well area within the City of New York, do they then become legally responsible to someone for injuries caused by such repairs?

Who is responsible in the City of New York, if a pedestrian ramp is too steep and thereby causes a pedestrian to stumble and fall?

Hear what our clients say about us

Read Client Testimonials

Fill out the form below to find out if you have a case.