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Fourth Department — Lead-Paint Litigation — Burden of Proof: McDonald v. Farina
Daily Record Staff//August 14, 2014//
Appellate Division, Fourth Department
Lead-Paint Litigation — Burden of Proof
Summary Judgment — Scienter
McDonald v. Farina
CA 13-02098
Appealed from Supreme Court, Niagara County
Background: The plaintiffs commenced an action after their daughter sustained injuries as a result of ingesting lead paint in an apartment owned by the defendant. The defendant appealed from an order denying its motion for summary judgment.
Ruling: The Appellate Division affirmed. The court held that it was the defendant’s burden, as the party seeking summary judgment, that he had no actual or constructive notice of the peeling lead-based paint before the plaintiffs’ daughter exhibited elevated lead levels in her blood.
A.Angelo Dimillo of Muscato, Dimillo & Vona for the defendant-appellant; Marc Shatkin of Muscato & Shatkin for the plaintiffs-respondents
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