Michael and Jillian DeJohn say they didn’t know their new house on High Street contained lead paint until their baby boy fell ill.
The lead-based paint rider that Michael DeJohn signed before closing on the house in April 2014 stated the seller had no knowledge of lead paint inside. But according to the U.S. Attorney’s Office, both the seller and the real estate agent knew the house contained lead paint.
Now, the DeJohns are suing the seller, Jacob Arnold; the real estate agent, Maureen S. Walck, and Walck’s employer, Howard Hanna WNY, Inc., for fraud, negligence and violating federal law.
In a complaint filed Monday in State Supreme Court in Niagara County, the DeJohns claimed their now-4-year-old son “continues to suffer sickness, injury and ill effects” from exposure to lead in 2014 and 2015.
The DeJohns’ civil action follows a criminal case against Walck.
This past September, Walck, 73, pleaded guilty in federal court to failure to provide lead paint hazard warning notice.
U.S. Magistrate Judge Jeremiah J. McCarthy sentenced Walck on Jan. 9 to time served, a $1,000 fine and ordered her to pay restitution of $53,326.
Attorney Angelo DiMillo, who is representing the DeJohns, said the court-ordered restitution was meant to cover out-of-pocket expenses that the couple incurred to remediate their home.
Arnold was not charged.
The civil suit claims both Arnold and Walck knew of a 2009 report that documented lead in the 118-year-old house, and that they knew the lead paint hadn’t been removed between then and 2014.
Court documents filed by the DeJohns purport to show a Lead-Based Paint Rider, on which Arnold checked a box marking that he had no knowledge of lead-based paint in the house. The suit also claims that on the Property Condition Disclosure Statement, Arnold answered “no” to a question asking if the property had been tested for “any hazardous or toxic substance.”
The DeJohns closed on the house on April 11, 2014, and paid $132,000 for it.
About a year later, their toddler became sick.
In September 2015, the boy was diagnosed with lead poisoning, and an investigation into the cause began, according to the U.S. Attorney’s Office.
The suit claims the boy became “sick, sore, lame and otherwise ill,” but offers no specific symptoms. DiMillo declined to comment on the extent of the injuries suffered by the child.
Symptoms of lead poisoning include an array of neurological issues, gastrointestinal problems and kidney damage. Lead exposure can cause permanent brain damage in children, who are more susceptible than adults to lead poisoning.
The DeJohns are seeking over $500,000 in damages, including $132,000 for the allegation of fraud, an amount to be determined by trial on the allegation of negligence and $396,000 for violating the Residential Lead-Based Paint Hazard Reduction Act, which permits awards of three times the amount of damages sustained.
At the time of the sale, Walck was a real estate broker for RealtyUSA.
Several months before the sale, Arnold and Walck received a prospective offer on the house, but that buyer pulled out upon learning that inspections found lead paint in the home, according to Assistant U.S. Attorney Aaron J. Mango.
Walck declined to comment on the litigation.
“The legal maxim of caveat emptor or ‘let the buyer beware’ has no applicability where, as here, the seller’s agent withholds information from the buyer notwithstanding her legal obligation to disclose the same,” U.S. Attorney James P. Kennedy Jr. said at Walck’s sentencing. “Indeed, the more apt lesson to be gleaned from this prosecution might well be ‘let the artful agent beware.’”