The city told a judge that a 5-year-old’s lead poisoning is the landlord’s fault — not the city health department’s fault — and that it is seeking the landlord’s arrest.
John Rose, Jr., the corporation counsel, made that argument before Judge Anthony Avallone in state housing court on Tuesday afternoon, as he sought to deflect a lead-paint lawsuit filed last week by New Haven Legal Assistance Association that charges the city health department isn’t doing its job.
The suit argues that the health department broke state law and local ordinances in the way it handled Jacob Guaman’s lead poisoning in an apartment at 1321 Whalley Ave. in the Amity section of town. In 2015, after lead levels in the boy’s blood far surpassed dangerous levels, the city failed to conduct a thorough inspection and monitor the landlord’s abatement, leaving him “suffering irreparable harm,” the complaint contends.
The suit asks a judge to grant injunctive relief, forcing the city to remove the child from the apartment and fix up the lead-paint problems directly. No monetary damages are being sought.
But Judge Avallone won’t be ruling on the case. City lawyers successfully convinced him that procedural guidelines prohibit him from ruling on the litigation in Housing Session, leading him to refer the case to a separate, little-used docket in the state court system.
“We’re extremely disappointed that the city was confrontational in response to our very serious concern about the health of a child. It was our hope that raising the fact pattern of this case would have allowed us to get the city’s attention to sit down and engage in conversations regarding what seem to be serious defects in the functioning of the Health Department,” Amy Marx, a staff attorney for NHLAA, said after Avallone’s action. “Instead of coming to court as stewards of the public’s well-being, they came to court to block us at all costs.”
City Threatens Landlord’s Arrest
Shortly after noon Tuesday on 121 Elm St.’s third floor, a cadre of six lawyers — three for the city, two for legal aid, and one for the landlord — crowded around a table for the first hearing on the case. In the front row, Paul Kowalski, the environmental health director in charge of lead-paint inspections, hunched over, seated beside Jong Hee Heo, the landlord in question, and Shelley White, NHLAA’s litigation director.
In a motion submitted the night before, city Corporation Counsel Rose asked the judge to consolidate the case with a related suit against Heo and to shift all the liability onto him rather than the city. After the Health Department cleared the property in a December 2008 inspection, Heo was “charged with maintaining and monitoring the premises thereafter,” Rose argued in a filing.
The brief skips over the city’s response in 2015, when inspectors cleared the apartment, despite blood tests showing dangerous lead levels, at nearly twice the levels required to trigger state law and seven times higher than city ordinance — the central episode in legal aid’s initial complaint, which focuses on whether the city does its job in enforcing lead-paint regulations.
The filing jumps right to this August. After legal aid sent a demand letter about the lead-paint problems, the city claims it tried to send written notice to Heo that he needed to make repairs. “Having heard nothing” in reply, the city applied for an arrest warrant, which is still pending, according to the city’s “best information,” Rose wrote.
“If you kick a door or slam a window, some of the encapsulated lead paint will come off,” Rose said in court. “The city’s being blamed for his not having complied. That’s what this is about.”
Heo told the Independent in a previous interview that he was trying to follow the city’s orders. Around the same time the health department came by, inspectors from the Livable City Initiative cleared his apartment on separate violations, including a wobbly toilet, a leaky pipe and missing smoke detectors. In court Tuesday, Heo said he was flabbergasted by the city’s attacks, saying he wasn’t feeling well, after the judge left the courtroom.
Kevin Casini, Heo’s new lawyer, said he’d fight Rose’s motion. “The city plans to claim that they’ve done nothing wrong and have zero liability, and that if anybody’s liable, it’s my client,” he said. “Obviously, I have contention with that.”
State courts have diverged on who should foot the bill for lead-paint poisonings — a question related to NHLAA’s request for injunctive relief. In a foundational case in 1990, the Superior Court awarded $1 million in damages to the mother of a sick 6-year-old in the Hill, ruling that the landlord had violated her obligation to keep the building free of lead paint. But by 1993, the court chose to ignore that precedent, saying it ignored the entire purpose of having a procedure in the health code to deal with poisonings. In a case that year, the court concluded that owners should be liable for damages only if they find out that lead-painted surfaces are defective and then choose not to make repairs within a reasonable time.
City Requests New Judge
Casini won’t have a chance to argue his defense for at least a week, because another one of Rose’s motions successfully moved the case elsewhere in the judicial system.
Based on his interpretation of a standing order issued by Judge Linda Lager in Nov. 2014, which sets out rules for civil cases involving lead paint, Avallone transferred the case from Housing Session into Superior Court. He expected the suit would land before Judge James Abrams, who he said is out on vacation this week.
The standing order requires plaintiffs to submit documents about their residency and medical care and places the case on a fast track in which no continuances can be granted.
Marx argued that, because legal aid isn’t seeking any money, the standing order didn’t apply. She pointed to a provision that says the special designation for lead-paint litigation should be stamped on a case only when “a claim of damages … is made.”
Rose, however, pointed out that another provision seems to broaden the order’s scope. Its rules about venue “apply to all civil actions related to lead paint,” a subsequent provision reads.
Marx argued that, regardless of the order, the boys in the Guaman family need urgent help.
“There’s chipped paint on the floor in the bedroom, and their blood levels are dangerously high,” she told Avallone. “The issue is we need immediate relief.”
“Hold it!” Avallone yelled, as the two lawyers veered into arguments about the Health Department’s workings. “The sole issue is whether Housing Court is the appropriate venue for this case.”
Avallone eventually sided with Rose’s interpretation
“I would love to be the judge and handle that,” he said, but “it belongs in Superior Court with its companion case. It’s best handled by one judge,” he added, in reference to his planned retirement before the year’s end.
The last time that a lawyer submitted the required paperwork to mark a New Haven case with the special lead-paint designation was in 2015, said Krista Hess, manager of the Superior Court’s operations unit. Transferring a case is even more unusual, since lead-paint litigation usually involves damages, meaning it starts in Superior Court anyway.
Marx accused the city of judge-shopping, saying, “We can’t think of any reason the city would want it there, other than to delay and to avoid Judge Avallone, who has been forceful voice in protecting children in the face of lead hazards.”
After kicking the matter from his court, Avallone invited corporation counsel and legal aid lawyers into his chambers to see if they could broker some kind of compromise about what to do in the meantime. After discussion, the health department agreed to conduct another property inspection, while the Guamans said they’d take their boys in for further blood tests.
The city refused to move the boys. In court, Rose objected to legal aid’s “use [of] the city as a relocation agency to move them from house to house.”
Marx called that response seemed callous. “There seemed to be a true lack of concern for a sick child in an emergency situation,” she commented after the hearing ended. “Instead, they just asserted that they’d done everything properly and that they’re the experts.”
As he left the courtroom, Rose declined comment, saying the city doesn’t comment on active litigation.
Yale-New Haven Hospital once offered a safe house for children with elevated blood levels, but that’s since closed down; Ronald McDonald House of Connecticut is now supposed to take poisoned kids in, according to state-issued recommendations. On Wednesday afternoon, a Ronald McDonald House employee said the safe house is fully booked and suggested calling back next week about availability.