Gendell v. 42 W. 17th St. Hous. Corp.

• Decision Date: 29 April 2021
• Docket Number: Case No. 2020-04265,13712,Index No. 158100/15
• Court: New York Supreme Court — Appellate Division
• Parties: Yfat GENDELL, et al., Plaintiff–Appellants–Respondents, v. 42 W. 17TH ST. HOUSING CORP., et al., Defendant–Respondent–Appellants.

193 A.D.3d 644

148 N.Y.S.3d 76

Yfat GENDELL, et al., Plaintiff–Appellants–Respondents,

v.42 W. 17TH ST. HOUSING CORP., et al., Defendant–Respondent–Appellants.

13712

Index No. 158100/15

Case No. 2020-04265

Supreme Court, Appellate Division, First Department, New York.

ENTERED April 29, 2021

Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for appellants-respondents.

Gartner + Bloom PC, New York (Alexander D. Fisher of counsel), for respondents-appellants.

Kern, J.P., Moulton, Scarpulla, Mendez, JJ.

Order, Supreme Court, New York County (Alan C. Marin, J.), entered August 26, 2020, which, to the extent appealed from as limited by the briefs, granted defendant 42 W. 17th St. Housing Corp.’s motion for summary judgment dismissing the gross negligence claim and denied the motion as to the negligence claim and the demand for consequential damages, and denied plaintiffs’ cross motion for partial summary judgment on the breach of contract claim, unanimously affirmed, without costs.

The court correctly denied partial summary judgment to plaintiffs on the breach of contract claim, because there are issues of fact with respect to the source of the leaks in plaintiffs’ units and, consequently, which party bears responsibility for the leaks under the proprietary lease, offering plan, and amendments thereto.

The court correctly declined to dismiss the negligence claim as duplicative of the breach of contract claim, because defendant had a nondelegable duty to maintain the roof in good repair, independent of the parties’ respective obligations under the terms of the proprietary lease (see Multiple Dwelling Law § 78[1] ; Jacobson v. 142 E. 16 Coop. Owners, 295 A.D.2d 211, 743 N.Y.S.2d 500 [1st Dept. 2002] ; Liberman v. Cayre Synergy 73rd LLC, 108 A.D.3d 426, 426, 970 N.Y.S.2d 6 [1st Dept. 2013] ). In the cases cited by defendant, the plaintiffs did not assert a negligence claim based upon the statutory independent duty (e.g. Baker v. 16 Sutton Place Apt. Corp., 2 A.D.3d 119, 121, 768 N.Y.S.2d 198 [1st Dept. 2003] ). In addition, there is evidence in the record supporting plaintiff's allegation that defendant breached its nondelegable duty by failing to properly repair the roof when leaks arose and that defendants’ actions caused plaintiffs’ children to suffer health issues (see Anderson v. Nottingham Vil. Homeowner's Assn., Inc., 37 A.D.3d 1195, 1197–1198, 830 N.Y.S.2d 882 [4th Dept. 2007] ). There is also evidence that defendant was served with a summons by...