Controversy and Confusion New developments with Local Law 38 (lead poisoning prevention)

In October 2000 Judge Louis York (New York Supreme Court, First Judicial Department) issued a decision that annulled the City of New York’s lead-poisoning prevention statute, commonly called Local Law 38. In the many news articles and attorney bulletins announcing this decision, it was widely assumed that the City would appeal, and that there would be a legal battle over whether filing an appeal would cause an automatic stay of Judge York’s ruling. Building owners, managing agents, and co-op and condo boards were generally advised to continue abiding by the requirements imposed by Local Law 38, despite them not being mandatory while the case was under appeal.

Since then, there has been practically no news coverage about the status of the case, or which lead paint law is currently in effect. In Judge York’s decision, it was clear that by nullifying Local Law 38, the "old" lead paint law (Local Law 1) would become the applicable law. To make matters even more complicated, there was confusion amongst owners and co-op boards throughout 2001 whether any actions were mandated at this time.

The immediate answer is that in late 2001, the New York Appellate Court issued a decision stating that while the City’s appeal is pending, Local Law 38 is reinstated. Confusion lingers however, due in part to the delayed final ruling on the City’s appeal, and in part over the reason Judge York annulled the law in the first place. Some background information may help clarify the issues.

Two years ago, then-Mayor Guiliani signed into law Local Law 38 of 1999 (New York City Administrative Code {27-2056.1…), which became effective on November 12 of that year. The new law was promulgated by the City Council and replaced Local Law 1 of 1982 (New York City Administrative Code {27-2013[h]) as the City’s lead-poisoning prevention statute. The enactment of this new law was challenged in court–both by community and public interest groups and by environmental watchdogs. On October 20, 2000, Judge York granted an application submitted by the New York City Coalition to End Lead Poisoning, Inc. and other plaintiff groups to nullify Local Law 38. As a result, Local Law 1 was temporarily reinstated. The City prepared and filed an appeal of this decision in the Appellate Division of the Supreme Court. To understand the controversy, it is important to review what obligations both Local Law 1 and Local Law 38 imposed on owners, and why Judge York ruled to nullify Local Law 38.

Getting the Lead Out

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