Cooperatives & Condominiums

Unit Owners Not Liable for Injuries Resulting from Common Elements

Pekelnaya v. Allen

NYLJ 10/31/05, p. 18, col. 1

AppDiv, First Dept

(Opinion by Tom, J.)

In a personal injury action against condominium unit owners for injuries caused by allegedly inadequate maintenance of common elements, unit owners appealed from the Supreme Court's denial of their motions for accelerated judgment dismissing the complaints against them. The Appellate Division reversed and dismissed the complaints, holding that unit owners could not be held liable for injuries resulting from common elements when the unit owners had no control over those common elements.

Tort plaintiffs were injured when a section of chain-link fence fell from the roof of an 11-unit building held in condominium ownership. The fence was installed before the condominium acquired the building, and thus before the unit owners acquired their interest in the common elements. Tort plaintiffs then sought to recover both from the condominium board and from the individual unit owners. The board had purchased liability insurance, but the insurance was only for $2 million, the minimum required by statute. Fear that insurance would not cover plaintiffs' injuries led to the action against the unit owners. The Supreme Court denied unit owners' motion to dismiss, relying on section 78 of the Multiple Dwelling Law, which makes owners responsible for safe maintenance, and which defines owners to include “the owner or owners of the freehold of the premises or lesser estate therein … or any other person, firm or corporation directly or indirectly in control of a dwelling.” Unit owners appealed.

In reversing, the Appellate Division concluded that the statutory provisions cited by each side in the dispute were ultimately unavailing. The court noted that section 78 of the Multiple Dwelling Law was enacted before the condominium act, and therefore could not have contemplated liability by condominium unit owners. The court then suggested that if the legislature intended to provide redress to injured third persons against the interest of the unit owners in common elements, the legislature could have so provided when it enacted the condominium statute. The court rejected the argument that the unit owners were liable because they were in a principal-agent relationship with the condominium board. The court emphasized that none of the unit owners had control over the board or over the common elements. Finally, the court acknowledged that if the same building had been held in co-operative ownership, the tort plaintiffs would have had redress because the co-operative corporation owns the building, which provides a source of payment for damages not covered by insurance. But the court ultimately dismissed the analogy to co-operatives, and held that the legislature was free to required more insurance if the legislature. Meanwhile, however, the court held that the unit owners were entitled to dismissal of the complaint.

Unit Owners Not Liable for Injuries Resulting from Common Elements

Pekelnaya v. Allen

NYLJ 10/31/05, p. 18, col. 1

AppDiv, First Dept

(Opinion by Tom, J.)

In a personal injury action against condominium unit owners for injuries caused by allegedly inadequate maintenance of common elements, unit owners appealed from the Supreme Court's denial of their motions for accelerated judgment dismissing the complaints against them. The Appellate Division reversed and dismissed the complaints, holding that unit owners could not be held liable for injuries resulting from common elements when the unit owners had no control over those common elements.

Tort plaintiffs were injured when a section of chain-link fence fell from the roof of an 11-unit building held in condominium ownership. The fence was installed before the condominium acquired the building, and thus before the unit owners acquired their interest in the common elements. Tort plaintiffs then sought to recover both from the condominium board and from the individual unit owners. The board had purchased liability insurance, but the insurance was only for $2 million, the minimum required by statute. Fear that insurance would not cover plaintiffs' injuries led to the action against the unit owners. The Supreme Court denied unit owners' motion to dismiss, relying on section 78 of the Multiple Dwelling Law, which makes owners responsible for safe maintenance, and which defines owners to include “the owner or owners of the freehold of the premises or lesser estate therein … or any other person, firm or corporation directly or indirectly in control of a dwelling.” Unit owners appealed.

In reversing, the Appellate Division concluded that the statutory provisions cited by each side in the dispute were ultimately unavailing. The court noted that section 78 of the Multiple Dwelling Law was enacted before the condominium act, and therefore could not have contemplated liability by condominium unit owners. The court then suggested that if the legislature intended to provide redress to injured third persons against the interest of the unit owners in common elements, the legislature could have so provided when it enacted the condominium statute. The court rejected the argument that the unit owners were liable because they were in a principal-agent relationship with the condominium board. The court emphasized that none of the unit owners had control over the board or over the common elements. Finally, the court acknowledged that if the same building had been held in co-operative ownership, the tort plaintiffs would have had redress because the co-operative corporation owns the building, which provides a source of payment for damages not covered by insurance. But the court ultimately dismissed the analogy to co-operatives, and held that the legislature was free to required more insurance if the legislature. Meanwhile, however, the court held that the unit owners were entitled to dismissal of the complaint.