Cooperatives & Condominiums

Water leaked into shareholder's apartment from the apartment of his upstairs neighbor. Shareholder called the managing agent to fix the leak, and the managing agent dispatched plumbers to the scene on at least four occasions, all in response to plaintiff shareholder's complaints. The plumbers' efforts were unsuccessful, and water cascaded into shareholder's apartment. Shareholder then brought this action against both the upstairs neighbor and the managing agent. Supreme Court denied managing agent's summary judgment motion.
In affirming, the Appellate Division majority acknowledged that managing agent's contract with the co-op was not so comprehensive as to displace the co-op board's duty to maintain the premises, but held that questions fact exist about whether the managing agent's plumbers had exacerbated the problem by launching an “instrument of harm” into the unit, potentially bringing the managing agent within the Espinal exception to the rule that immunizes an agent from liability to persons other than the agent's principal.

Justice Andrias, dissenting, contended that the managing agent's submissions established that the source of the water was the upstairs neighbor, and that the upstairs neighbor was solely responsible for the damage. He contended that shareholder had failed to offer any submissions indicating that the managing agent's plumbers caused or worsened the conditions in shareholder's apartment.

Questions of Fact Preclude Summary Judgment in Co-op Shareholder's Water Damages Action

Karydas v. Ferrara-Ruurds
NYLJ 9/6/16, p. 20, col. 2
AppDiv, First Dept.
(4-1 decision; memorandum opinion; dissenting opinion by Andrias, J.)

In an action by co-op shareholder against an upstairs neighbor and the managing agent seeking damages for water damage to shareholder's apartment, the managing agent appealed from Supreme Court's denial of its summary judgment motion. The Appellate Division affirmed, holding that questions of fact about the actions of the managing agent's plumbers precluded summary judgment.

Water leaked into shareholder's apartment from the apartment of his upstairs neighbor. Shareholder called the managing agent to fix the leak, and the managing agent dispatched plumbers to the scene on at least four occasions, all in response to plaintiff shareholder's complaints. The plumbers' efforts were unsuccessful, and water cascaded into shareholder's apartment. Shareholder then brought this action against both the upstairs neighbor and the managing agent. Supreme Court denied managing agent's summary judgment motion.
In affirming, the Appellate Division majority acknowledged that managing agent's contract with the co-op was not so comprehensive as to displace the co-op board's duty to maintain the premises, but held that questions fact exist about whether the managing agent's plumbers had exacerbated the problem by launching an “instrument of harm” into the unit, potentially bringing the managing agent within the Espinal exception to the rule that immunizes an agent from liability to persons other than the agent's principal.

Justice Andrias, dissenting, contended that the managing agent's submissions established that the source of the water was the upstairs neighbor, and that the upstairs neighbor was solely responsible for the damage. He contended that shareholder had failed to offer any submissions indicating that the managing agent's plumbers caused or worsened the conditions in shareholder's apartment.