Illustrating the limits on the governmental immunity defense, a New York appeals court denied summary judgment to the City of Buffalo and City of Buffalo Urban Renewal Agency in a lead paint abatement negligence suit. See Moore v. Del-Rich Properties, Inc., No. 16-02130, 2017 WL 2604503 (N.Y. App. Div. June 16, 2017).

When tests detected dangerous levels of lead paint in plaintiff Lillie Moore’s apartment building, the building’s owner enrolled in the City of Buffalo’s federally-funded Lead Hazard Control Project to pursue lead paint abatement. The City of Buffalo Urban Renewal Agency (BURA) managed this lead paint abatement work in early 2000. The following year, the building’s lead retest again detected dangerously high levels of lead paint. The plaintiff then brought suit against the City of Buffalo, the City of Buffalo Urban Renewal Agency (BURA), and the building’s owner for negligent lead paint abatement work, claiming that they were liable for the continued presence of hazardous lead paint levels and that the lead caused injuries to the plaintiff’s grandson while he visited and lived in her apartment. The City of Buffalo and BURA moved for summary judgment, arguing they were protected by governmental immunity from liability. The trial court denied the motion, and the City and BURA appealed.

The court found the municipal defendants could not claim immunity. In jointly managing the Lead Hazard Control Project, the Defendants arranged and supervised the lead paint abatement project at the plaintiff’s apartment. In doing so, the City played a proprietary role rather than a governmental function—thereby extinguishing any immunity—because the City “voluntarily assumed the homeowner’s duty to remediate the lead paint” at the plaintiff’s residence. The court further noted that once the defendants assumed this proprietary duty, they also assumed liability, despite the fact that the City did not own Plaintiff’s apartment building.