Pekelnaya v. AllynPekelnaya v. Allyn
APPEARANCES OF COUNSEL
Michael P. Mangan, New York City, for Ivan Santiago and another, appellants.
Tarshis & Hammerman LLP, Forest Hills (Roberta E. Tarshis of counsel), for Robert H. Roy and another, appellants.
Wayne E. Batcheler, New York City, for Noelle A. Dean, appellant.
Russo, Keane & Toner, LLP, New York City (Thomas F. Keane, Christopher G. Keane and Alan Russo of counsel), for Gustavo Rusconi, appellant.
Marshall, Conway & Wright, P.C., New York City (Steven L. Sonkin of counsel), for Jose O. Asiatico, appellant.
Hoey, King, Toker & Epstein, New York City (Danielle M. Regan of counsel), for David Secul, appellant.
Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York City (Roy J. Karlin of counsel), for Rosia M. Remy, appellant.
Leahey & Johnson, P.C., New York City (Peter James Johnson, Jr., Peter James Johnson, James P. Tenney and Kimberly Schirripa of counsel), for Maria Hinojosa, appellant.
Gair, Gair, Conason, Steigman & Mackauf, New York City (Robert L. Conason and Rhonda E. Kay of counsel), for respondents.
Snow Becker Krauss P.C., New York City (Marc J. Luxemburg and David Lackowitz of counsel), for Council of New York Cooperatives and Condominiums, amicus curiae.
OPINION OF THE
Tom, J.P.
The novel issue raised on this appeal is whether the proportionate interest in the common elements of a condominium held by the owners of the individual units subjects them to liability for injuries sustained by a third party as the result of a defective condition in a common element. In the absence of any statutory basis for recovery, control rather than the unit owners’ common interest is the operative criterion upon which liability is predicated. In the absence of such control by the individual unit owners over that component of the common elements alleged to be defective, this Court concludes that the individual defendants cannot be held answerable in damages.
Plaintiffs Aba and Michael Taratuta are father and son. Defendants are the individual owners of the 11 units comprising the Park 106 Condominium, located at 69 West 106th Street in Manhattan (collectively, the unit owners). While walking on the sidewalk, Aba and Michael Taratuta were struck and seriously injured by a section of chain-link fence, measuring approximately four feet by five feet, that fell from the roof of the condominium. The dislodged section was part of a security fence erected along the parapet wall of the roof to prevent access from adjoining buildings. It was installed prior to the time the condominium acquired the building and, thus, before the unit owners acquired their interest in the common elements upon taking possession of their respective apartments.
Michael Taratuta‘s injuries included traumatic brain injury, open comminuted skull fractures and multiple intracerebral hemorrhages and contusions, which rendered him severely and permanently disabled. His father sustained blunt head trauma and fractures of the vertebral column, among other injuries. Plaintiffs commenced a previous action against the condominium‘s board of managers on the theory that the board is responsible for the maintenance of common elements, including the rooftop security fence. Allegedly because damages will exceed the $2 million in insurance carried by the board, plaintiffs commenced this action against the unit owners.1
Invoking the doctrine of res ipsa loquitur, the injured plaintiffs seek to recover damages based upon defendants’ status as owners of the individual condominium apartments located in
The unit owners hold title to their respective condominium apartments in fee simple absolute (
The unit owners appeal from the denial of their motions for accelerated judgment dismissing the complaint and all cross claims against them (
Supreme Court denied the motions, reasoning that
On this appeal, the unit owners argue that the Condominium Act (
Plaintiffs concede that the parapet-wall fence forms part of the common elements of the condominium. Plaintiffs also acknowledge that the board has the power and the duty to maintain the common elements. Nevertheless, plaintiffs contend that because of the part interest held by each individual unit owner in the condominium‘s common elements,
Initially, plaintiffs take issue with the unit owners’ contention that, by statute, maintenance and repair of the individual condominium unit is the responsibility of the unit owner, while maintenance and repair of the common elements is the responsibility of the board of managers. Plaintiffs argue that, while the board of managers is designated as the “person in control of the common elements” (
the latter provision, the unit owners remain liable for the defective condition of the parapet-wall fence by virtue of their respective minority ownership interests in the common elements.
As to the merits, plaintiffs rely on the doctrine of res ipsa loquitur, noting that portions of rooftop fencing do not normally drop to the sidewalk in the absence of some sort of negligence. Res ipsa loquitur may be invoked when a plaintiff can establish that (1) the type of accident is one that does not occur in the absence of negligence; (2) it is attributable to an agency or instrumentality within the defendant‘s exclusive control; and (3) the injury sustained was not caused or exacerbated by any voluntary action on the plaintiff‘s part (Mejia v New York City Tr. Auth., 291 AD2d 225, 227 [2002]). Plaintiffs contend that the second element is satisfied by the exclusive control over the fence exercised by the condominium‘s board of managers, itself composed of unit owners, as agent for the unit owners. They note that pursuant to the condominium bylaws, article 2, § 2.1, the board “shall act as, and shall be, the agent of the Unit Owners.”
Finally, plaintiffs assert that, in support of the motions for dismissal, the individual owners submitted only an unsworn engineering report of an inspection conducted six months prior to the accident. Plaintiffs discount as merely conclusory the unit owners’ affidavits declaring their lack of notice of the defective condition of the fence.
The issue to be decided on this appeal—whether liability should be imposed on the owners of individual condominium units for injuries to third persons resulting from a defect in a common element—is apparently a case of first impression. Plaintiffs note that, unlike some other jurisdictions, New York State has not provided for the allocation of responsibility for injury to third persons as the result of negligence in the maintenance and repair of common elements. The unit owners contend, to the contrary, that
The statutory provisions cited by both sides in support of their respective positions are ultimately unavailing. With respect to
It has been observed that “the apparent purpose of the registration statutes is to enable tenants and governmental authorities to readily contact owners or persons responsible for the operation of multiple dwellings” (Lazarus v Liebowitz, 85 Misc 2d 822, 827 [1976]). Registration facilitates the service of notices, orders and summonses (
Consideration turns to plaintiffs’ contention that
Plaintiffs correctly note that the condominium form of ownership is purely a creature of statute. As a legislative enactment in derogation of the common law, the Condominium Act is subject to strict construction (see Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414 [1975] [zoning ordinance]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [1983] [no-fault insurance];
The condominium being a creature of statute, the Legislature is the appropriate body to weigh the interest of an injured party in recovering damages against the interest of the individual unit owners in avoiding liability for the consequences of acts or omissions beyond their control. The failure of the Legislature to provide for liability in the absence of control by condominium unit owners over the maintenance and repair of the common elements precludes the courts from imposing responsibility by implication. Statutes which create such vicarious liability are narrowly construed (id. at 27-28). “The Legislature is presumed to be aware of the law in existence at the time of an enactment and to have abrogated the common law only to the extent that the clear import of the language of the statute requires” (B & F Bldg. Corp. v Liebig, 76 NY2d 689, 693 [1990]). The condominium form of ownership being purely a creation of statute, in the
Plaintiffs advance the argument that the unit owners should be held liable for the board‘s negligence in the maintenance of the common elements based upon a principal-agent relationship.
While this argument is superficially plausible, it is unsupported by either common law, the Condominium Act or practical experience. Where, as here, the putative agent (the board of managers) is not a servant, vicarious liability will not be imposed on the principal (the unit owners, collectively). “Since an agent who is not a servant is not subject to any right of control by his employer over the details of his physical conduct, the responsibility ordinarily rests upon the agent alone, and the principal is not liable for the torts which [the agent] may commit” (Prosser and Keaton, Torts § 70, at 508 [5th ed]).
Vicarious liability of a principal for an agent‘s negligence is predicated on “the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss” (id. § 69, at 500). In the extreme, where the principal‘s control is exclusive, liability may be imposed under the doctrine of res ipsa loquitur. For instance, under circumstances where two unconscious plaintiffs were under a hospital‘s care and the hospital conceded that it exercised complete control over the premises, the hospital staff and the instrumentality causing injury, liability was imposed even though injury resulted from the deliberate act of an unknown person (Morris v Lenox Hill Hosp., 232 AD2d 184 [1996], affd for reasons stated below, 90 NY2d 953 [1997] [poisoning]).
Where control is lacking, however, liability is not imposed even when, in the context of a motion for summary judgment to dismiss the complaint, it is presumed that the putative principal‘s negligence can be established (see Sawh v Schoen, 215 AD2d 291 [1995]). In Sawh, a doctor gave allegedly erroneous advice to a colleague concerning a patient of their shared
It is clear that condominium common elements are solely under the control of the board of managers. The Condominium Act provides that the cost of materials and labor incurred in connection with the common elements is payable out of common charges (
The control purportedly exercised by the unit owners, as collective principal, over the board of managers, as purported agent, is flatly contradicted by case law reflecting general experience with residential forms of common and cooperative ownership. A board of managers “takes on the burden of managing the property for the benefit of the proprietary lessees. As one court observed, ‘Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less‘” (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537 [1990], quoting Sterling Vil. Condominium, Inc. v Breitenbach, 251 So 2d 685, 688 [Fla 1971]).
The prerogative of a board
The realities of cooperative and condominium governance simply do not comport with plaintiffs’ attribution of control to the unit owners based on the board‘s designation as their agent. Since the unit owners have no control over, or direct responsibility for, the common elements and neither statutory nor common law renders an individual condominium unit owner liable for injuries sustained as the result of defects in the common elements, the unit owners are not liable for plaintiffs’ damages (see Smith v Parkchester N. Condominium, 163 Misc 2d 66 [1994]). As this Court stated in Aarons v 401 Hotel, L.P., 12 AD3d 293, 293-294 [2004], “An undivided interest in the common elements, including the land, does not equate with a proprietary interest in the portion of the building where the accident occurred sufficient to impose liability.”
Plaintiffs further argue that the unit owners should be held liable as a matter of policy to afford a means of recovery to a person injured by a defect in the common elements. They note that unlike the cooperative form of ownership, in which the corporation is the owner of the premises and thus provides a source of payment for damages in excess of insurance coverage, the condominium is owned by the unit owners. Therefore, if the condominium‘s board of managers does not carry insurance against injury to third persons, the effect is to render the condominium judgment proof under circumstances such as these.
We note that the Condominium Act, while setting forth minimum insurance requirements for property damage (
Whether a judgment awarding damages for personal injury sustained as the result of the defective condition of the common elements of a condominium should be enforceable against the individual dwelling units and whether the board of managers of a condominium should be required to carry a minimum amount of general liability insurance, and the amount of such coverage, are matters appropriately addressed by the Legislature. Balancing the resulting public benefit against the financial impact upon the individual condominium unit owners and the infringement upon the discretion of the board of managers to exercise its business judgment involves competing policy considerations that are within the particular province of the legislative branch of government (see Matter of Kelley [City Volunteer Corps—Hartnett], 166 AD2d 822, 824 [1990]). We urge legislation to require a condominium to obtain a minimum amount of liability
Accordingly, the order of the Supreme Court, New York County (Sherry Klein Heitler, J.), entered January 22, 2004, insofar as it denied defendants’ respective motions and cross motions for summary judgment dismissing the complaint and all cross claims against them, should be reversed, on the law, without costs, and the motions and cross motions granted. The Clerk is directed to
Andrias, Gonzalez and Catterson, JJ., concur.
Order, Supreme Court, New York County, entered January 22, 2004, reversed, on the law, without costs, and defendants’ respective motions and cross motions for summary judgment dismissing the complaint and all cross claims against them granted. The Clerk is directed to enter judgment accordingly.
ANDRIAS, GONZALEZ AND CATTERSON, JJ.