Preview
FILED: OSWEGO COUNTY CLERK 05/20/2020 12:41 PM INDEX NO. EFC-2020-0215
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/20/2020
STATE OF NEW YORK
SUPREME COURT :COUNTY OF OSWEGO
NATASHA PEPPER, DIONNA PEPPER, and
QUIONNA PEPPER, ATTORNEY AFFIDAVIT
Plaintiffs,
vs. Index No.: EFC-2020-0215
Date Purchased: 2/5/2020
JO-EL HORN,
Defendant.
STATE OF NEW YORK )
COUNTY OF OSWEGO ) ss.:
KIMBERLY A. STEELE, ESQ., being duly sworn, deposes and says that:
1. I am an attorney duly licensed and admitted to practice law in the courts of the State of
New York and act as counsel to Defendant Jo-El Horn ("Horn") in the above-named action. As such, I
am fully familiar with the facts and circumstances relevant to this action.
2. I submit this Attorney Affidavit in support of Horn's Motion for an Order as follows: (1)
pursuant to CPLR R. 3211(a)(1) and (5), dismissing the Verified Complaint of Plaintiffs Natasha Pepper,
Dionna Pepper, and Quionna Pepper (collectively, the "Peppers"); (2) awarding Horn her reasonable
attorneys'
fees and costs incurred in making this Motion; and (3) awarding Horn such other and further
relief as the Court may deem just and proper (the "Motion").
3. Accompanying this Attorney Affidavit and incorporated herein by reference are the
Affidavit of Jo-El Horn with Exhibit and a Memorandum of Law.
4. As discussed in the Horn Affidavit, around the time period of 2000 to 2002, Horn owned
certain real property commonly known as 47 East Albany Street, Oswego, New York 13126 (the
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Peppers'
"Property") and rented the Property for residential purposes to tenants. The mother, Kerrie
Keefe, was Horn's tenant around that time period.
5. The Peppers brought this action on February 5, 2020 by filing a Summons and Verified
"A"
Complaint. Copies of the Summons and Verified Complaint are attached hereto as Exhibit and
incorporated herein by reference. The Peppers have brought claims for negligence, alleging that they
were exposed to lead paint while renting the Property from Horn and therefore allegedly suffered
"damage to their nervous systems and internal organs, some or all of which are of a permañeñt or
irreparable nature, including impaired speech, learning and behavioral problems, future disabilities and
handicaps".
6. As discussed in the accompanying Memorandum of Law, cognitive and similar
dysfunctions arising from lead paint ingestion are the type of latent injury from exposure to a harmful
substance that implicate the discovery rule of CPLR §214-c, which provides that such a claim accrues
when the plaintiff discovered or reasonably should have discovered the injury, and its corresponding
limitations period of three (3) years.
7. As discussed in the Memorandum of Law, the of the
accompanying discovery injury
refers to the discovery of the condition that gave rise to the injury, which in this case is the existence of
elevated blood lead levels in the Peppers.
8. As discussed in the accompanying Memorandum of Law, one of the circumstances from
which a plaintiff should with reasonable diligence discover their injury is the occurrence of elevated
blood lead levels in the plaintiff.
9. As discussed in the Horn Affidavit, correspondence from Oswego County Health Services
confirms that Oswego County Health Services obtained a lead assessment on the Property on March 15,
2002 in response to a report of a child who resided or visited the Property, presumably one of the
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Peppers, with elevated blood lead levels. Thus, the Peppers should have with reasonable diligence have
discovered their lead exposure injury prior to March 15, 2002 when the report of a child with elevated
blood lead levels caused Oswego County Health Services to obtain said lead assessment.
10. While the date when said diagnosis of elevated blood lead levels came in is not yet
Peppers'
known, for purposes of this Motion, the claims accrued at the latest on March 15, 2002. The
foregoing is without waiver of any defenses or arguments to the effect that the claims accrued earlier
should this Motion not be granted and discovery proceed in this action.
11. By reason of the foregoing, the three (3) year statute of limitations has passed, and the
Peppers'
Verified Complaint should be dismissed in itsentirety.
WHEREFORE, Defendant Jo-El Horn respectfully requests an Order as follows: (1) pursuant to
CPLR R. 3211(a)(1) and (5), dismissing the Verified Complaint of Plaintiffs Natasha Pepper, Dionna
attorneys'
Pepper, and Quionna Pepper; (2) awarding Defendant Jo-El Horn her reasonable fees and costs
incurred in making this Motion; and (3) awarding Defendant Jo-El Horn such other and further relief as
the Court may deem just and proper.
Dated: May 20, 2020
Oswego, New York
KIMB l(LY A. STEELE, ESQ.
orn to b ore me this 20th day of May, 2020.
l¼Etic - State New York
Notary of
KEVIN LAMONTAGNE
NOTARY PUBLIC, STATE OF NEW YORK
RegistrationNo. 01LA6391471
Qualified
In Oswego County
Commission Expires May 13, 20_
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Preview
FILED: OSWEGO COUNTY CLERK 05/20/2020 12:41 PM INDEX NO. EFC-2020-0215 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/20/2020 STATE OF NEW YORK SUPREME COURT :COUNTY OF OSWEGO NATASHA PEPPER, DIONNA PEPPER, and QUIONNA PEPPER, ATTORNEY AFFIDAVIT Plaintiffs, vs. Index No.: EFC-2020-0215 Date Purchased: 2/5/2020 JO-EL HORN, Defendant. STATE OF NEW YORK ) COUNTY OF OSWEGO ) ss.: KIMBERLY A. STEELE, ESQ., being duly sworn, deposes and says that: 1. I am an attorney duly licensed and admitted to practice law in the courts of the State of New York and act as counsel to Defendant Jo-El Horn ("Horn") in the above-named action. As such, I am fully familiar with the facts and circumstances relevant to this action. 2. I submit this Attorney Affidavit in support of Horn's Motion for an Order as follows: (1) pursuant to CPLR R. 3211(a)(1) and (5), dismissing the Verified Complaint of Plaintiffs Natasha Pepper, Dionna Pepper, and Quionna Pepper (collectively, the "Peppers"); (2) awarding Horn her reasonable attorneys' fees and costs incurred in making this Motion; and (3) awarding Horn such other and further relief as the Court may deem just and proper (the "Motion"). 3. Accompanying this Attorney Affidavit and incorporated herein by reference are the Affidavit of Jo-El Horn with Exhibit and a Memorandum of Law. 4. As discussed in the Horn Affidavit, around the time period of 2000 to 2002, Horn owned certain real property commonly known as 47 East Albany Street, Oswego, New York 13126 (the - Page 1 - ATTORNEY AFFIDAVIT 1 of 3 FILED: OSWEGO COUNTY CLERK 05/20/2020 12:41 PM INDEX NO. EFC-2020-0215 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/20/2020 Peppers' "Property") and rented the Property for residential purposes to tenants. The mother, Kerrie Keefe, was Horn's tenant around that time period. 5. The Peppers brought this action on February 5, 2020 by filing a Summons and Verified "A" Complaint. Copies of the Summons and Verified Complaint are attached hereto as Exhibit and incorporated herein by reference. The Peppers have brought claims for negligence, alleging that they were exposed to lead paint while renting the Property from Horn and therefore allegedly suffered "damage to their nervous systems and internal organs, some or all of which are of a permañeñt or irreparable nature, including impaired speech, learning and behavioral problems, future disabilities and handicaps". 6. As discussed in the accompanying Memorandum of Law, cognitive and similar dysfunctions arising from lead paint ingestion are the type of latent injury from exposure to a harmful substance that implicate the discovery rule of CPLR §214-c, which provides that such a claim accrues when the plaintiff discovered or reasonably should have discovered the injury, and its corresponding limitations period of three (3) years. 7. As discussed in the Memorandum of Law, the of the accompanying discovery injury refers to the discovery of the condition that gave rise to the injury, which in this case is the existence of elevated blood lead levels in the Peppers. 8. As discussed in the accompanying Memorandum of Law, one of the circumstances from which a plaintiff should with reasonable diligence discover their injury is the occurrence of elevated blood lead levels in the plaintiff. 9. As discussed in the Horn Affidavit, correspondence from Oswego County Health Services confirms that Oswego County Health Services obtained a lead assessment on the Property on March 15, 2002 in response to a report of a child who resided or visited the Property, presumably one of the - Page 2 - ATTORNEY AFFIDAVIT 2 of 3 FILED: OSWEGO COUNTY CLERK 05/20/2020 12:41 PM INDEX NO. EFC-2020-0215 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/20/2020 Peppers, with elevated blood lead levels. Thus, the Peppers should have with reasonable diligence have discovered their lead exposure injury prior to March 15, 2002 when the report of a child with elevated blood lead levels caused Oswego County Health Services to obtain said lead assessment. 10. While the date when said diagnosis of elevated blood lead levels came in is not yet Peppers' known, for purposes of this Motion, the claims accrued at the latest on March 15, 2002. The foregoing is without waiver of any defenses or arguments to the effect that the claims accrued earlier should this Motion not be granted and discovery proceed in this action. 11. By reason of the foregoing, the three (3) year statute of limitations has passed, and the Peppers' Verified Complaint should be dismissed in itsentirety. WHEREFORE, Defendant Jo-El Horn respectfully requests an Order as follows: (1) pursuant to CPLR R. 3211(a)(1) and (5), dismissing the Verified Complaint of Plaintiffs Natasha Pepper, Dionna attorneys' Pepper, and Quionna Pepper; (2) awarding Defendant Jo-El Horn her reasonable fees and costs incurred in making this Motion; and (3) awarding Defendant Jo-El Horn such other and further relief as the Court may deem just and proper. Dated: May 20, 2020 Oswego, New York KIMB l(LY A. STEELE, ESQ. orn to b ore me this 20th day of May, 2020. l¼Etic - State New York Notary of KEVIN LAMONTAGNE NOTARY PUBLIC, STATE OF NEW YORK RegistrationNo. 01LA6391471 Qualified In Oswego County Commission Expires May 13, 20_ - Page 3 - ATTORNEY AFFIDAVIT 3 of 3