Jerdonek v. 41 W. 72 LLC

• Decision Date: 28 July 2016
• Citation: 143 A.D.3d 43,2016 N.Y. Slip Op. 05666,36 N.Y.S.3d 17
• Parties: Orfeusz M. JERDONEK, Plaintiff–Respondent, v. 41 WEST 72 LLC, et al., Defendants–Appellants. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 43

36 N.Y.S.3d 17

2016 N.Y. Slip Op. 05666

Orfeusz M. JERDONEK, Plaintiff–Respondent,

v. 41 WEST 72 LLC, et al., Defendants–Appellants.[And a Third–Party Action].

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

July 28, 2016.

Baxter, Smith & Shapiro, P.C., Hicksville (Joseph M. Guzzardo of counsel), for appellants.

The Perecman Firm, PLLC, New York (David H. Perecman and Peter D. Rigelhaupt of counsel), for respondents.

DAVID FRIEDMAN, J.P., RICHARD T. ANDRIAS, DAVID B. SAXE, JUDITH J. GISCHE, BARBARA R. KAPNICK, JJ.

FRIEDMAN

, J.P.

Plaintiff was injured in a fall from a scaffold while he was working in a boiler room that is a common element of the condominium apartment building at 41 West 72nd Street in Manhattan, known as the Hermitage Condominium. All members of this panel agree that plaintiff is entitled to summary judgment as to liability under Labor Law § 240(1)

against the party that owned the property on which he was injured when the accident occurred in February 2009. Because a declaration converting the building to condominium status was recorded in 2001, more than seven years before the accident, it is plain, under our precedents, that, at the time of the accident, the “owner” of the condominium's common elements, for purposes of this tort action, was defendant the Board of Managers of the Hermitage Condominium (hereinafter, the Hermitage board), not defendant 41 West 72 LLC, the entity that sponsored the conversion, regardless of 41 West 72 LLC's continued ownership of some of the building's individual units. It is the Hermitage board, not the former sponsor, that exercised exclusive control over the building's common elements and entered into the contract for the lobby renovation project in the course of which plaintiff was injured. The Hermitage board is a named defendant that has appeared in this action and is actively defending it; there is no reason to believe that the Hermitage board might lack the resources to satisfy plaintiff's ultimate judgment. Moreover, plaintiff himself, through his counsel at the argument of this appeal, has stated that he does not oppose dismissing 41 West 72 LLC from the action, so long as he is granted summary judgment against the Hermitage board. Accordingly, while we affirm other aspects of Supreme Court's order, we modify it to grant 41 West 72 LLC's motion for summary judgment dismissing plaintiff's Labor Law claims as against it and, upon a search of the record, to grant plaintiff summary judgment as to liability on his claim under Labor Law § 240(1) as against the Hermitage board.

Initially, we address the merits of plaintiff's cause of action under Labor Law § 240(1)

. Plaintiff's testimony that he fell and was injured when the scaffolding on which he was working moved establishes prima facie that the statute was violated and that the violation was a proximate cause of plaintiff's injuries (see

Zengotita v. JFK Intl. Air Term., LLC, 67 A.D.3d 426, 889 N.Y.S.2d 545 [1st Dept.2009] ). The conflicting testimony of Carlos Alvarado, an employee of defendant Bar Construction Corp., the general contractor that hired plaintiff's employer, does not preclude partial summary judgment in plaintiff's favor, since the statute was violated under either version of the accident (see

Romanczuk v. Metropolitan Ins. & Annuity Co., 72 A.D.3d 592, 899 N.Y.S.2d 228 [1st Dept.2010] ). Bar Construction's foreman's admission that the first level of the scaffolding did not have middle or top guard rails also establishes a violation of the statute (see

Ritzer v. 6 E. 43rd St. Corp., 57 A.D.3d 412, 871 N.Y.S.2d 26 [1st Dept.2008] ). The record does not support defendants' argument that plaintiff was the sole proximate cause of his accident or a recalcitrant worker since plaintiff's fall was caused in part by the fact that the scaffold was not properly secured and was not equipped with guard rails (see

Boyd v. Schiavone Constr. Co., Inc., 106 AD3d 546, 548, 965 N.Y.S.2d 117 [1st Dept.2013] ). There is no evidence that plaintiff disregarded an instruction to use any particular safety device (see generally

Hill v. Acies Group, LLC, 122 A.D.3d 428, 996 N.Y.S.2d 235 [1st Dept.2014] ).

Turning to the question of which entities (other than Bar Construction and the Hermitage board) are properly named as defendants upon plaintiff's Labor Law causes of action, we hold that Supreme Court erred in denying defendants' motion insofar as it sought summary judgment dismissing plaintiff's claim under Labor Law §§ 240(1)

and 241(6) as against defendant 41 West 72 LLC and plaintiff's claims under Labor Law §§ 200, 240(1) and 241(6) as against defendant Property Markets Group, Inc. As to Property Markets, the record contains no evidence that this entity ever owned or controlled the premises where the accident occurred. The basis for dismissing the claim as against 41 West 72 LLC requires a more extended discussion.

As previously noted, plaintiff was injured in February 2009 in the boiler room of the residential apartment building located at 41 West 72nd Street in Manhattan. While defendant 41 West 72 LLC acquired the building in question by a deed recorded in January 2001, several months later, in August 2001, 41 West 72 LLC made the building subject to the Condominium Act (Real Property Law, article 9–B) by executing and filing a declaration of condominium pursuant to Real Property Law § 339–f

.¹ The declaration defines the common elements of the condominium (Real Property Law § 339–e[2] ) to include the building's boiler room. As a common element of the condominium, the boiler room was, at the time of plaintiff's accident, owned collectively by all of the owners of the building's 130 units.² However, the conversion of the building to a condominium placed its common elements “solely under the control of the [condominium's] board of managers” pursuant to the Condominium Act, which “recogni[zes] that the board exercises exclusive control over the common elements” (Pekelnaya v. Allyn, 25 A.D.3d 111, 120, 808 N.Y.S.2d 590 [1st Dept.2005]

; see also Real Property Law § 339–v[1][a] [requiring that the bylaws of a condominium establish a board of managers] ).³

In keeping with the vesting of exclusive control of a condominium's common elements in the board of managers, it is well established that a claim arising from the condition or operation of the common elements does not lie against the owners of the individual units; the proper defendant on such a claim is the board of managers (see Pekelnaya, 25 A.D.3d at 113, 808 N.Y.S.2d 590

; see also

O'Toole v. Vollmer, 130 A.D.3d 597, 598, 13 N.Y.S.3d 213 [2d Dept.2015] ; Rothstein v. 400 E. 54th St. Co., 51 A.D.3d 431, 431–432, 857 N.Y.S.2d 100 [1st Dept.2008] ). Further, this Court has held that a statute imposing obligations or liabilities upon the “owner” of real property does not give rise to a claim against the owners of individual condominium units where the claim arises from the common elements or concerns a duty not connected with any individual unit (see

Pekelnaya, 25 A.D.3d at 118–119, 808 N.Y.S.2d 590 [rejecting a claim against unit owners under Multiple Dwelling Law § 78, which makes “the owner” of a multiple dwelling responsible for keeping the building “in good repair”]; Araujo v. Mercer Sq. Owners Corp., 95 A.D.3d 624, 944 N.Y.S.2d 126 [1st Dept.2012] [rejecting a claim against the owner of an individual condominium unit for violating Administrative Code of City of N.Y. § 7–210, which imposes obligations on “the owner of real property abutting any sidewalk”]; see also

Fayolle v. East W. Manhattan Portfolio L.P., 108 A.D.3d 476, 970 N.Y.S.2d 186 [1st Dept.2013], appeal dismissed 22 N.Y.3d 979, 979 N.Y.S.2d 551, 2 N.E.3d 918 [2013], lv. dismissed in part, denied in part 24 N.Y.3d 1079, 1 N.Y.S.3d 3, 25 N.E.3d 340 [2014] [following Araujo ] ).⁴

In this action, plaintiff has named the condominium's board of managers, the aforementioned Hermitage board, as a defendant. It is the Hermitage board, not 41 West 72 LLC, that entered into the contract for the lobby renovation project in the course of which plaintiff was injured. The Hermitage board has appeared in this action and is actively defending itself in the matter, including by taking part in the instant appeal, and has admitted that it is properly sued as the owner of the building's common elements. Plaintiff makes no claim that the Hermitage board was not actually functioning at the time of the accident or that it lacks the resources to satisfy a judgment in his favor. In fact, as earlier noted, plaintiff, through his counsel at oral argument, has stated that he does not oppose dismissing 41 West 72 LLC from the action so long as he is granted summary judgment against the Hermitage board. Under these circumstances, we see no reason not to grant 41 West 72 LLC summary judgment dismissing the claims under Labor Law §§ 240(1)

and 241(6) as against it. At the same time, because the record establishes that the Hermitage board is the proper party to be sued as owner of the building's common elements and, as previously discussed, plaintiff has otherwise established his right to judgment on the claim under § 240(1) as a matter of law, we further modify the order appealed from, upon a search of the record, to grant plaintiff summary judgment as to liability on his claim under § 240(1) as against the Hermitage board.

While the record does not reflect the extent to which 41 West 72 LLC has retained ownership of units in the building since its conversion to a condominium, we do not believe that 41 West 72 LLC's continued ownership of certain units at the time of the accident would affect its entitlement to dismissal from this action. It is true that each unit owner—including the sponsor of the condominium conversion (here, 41 West 72 LLC) to the extent it retains ownership of unsold units—owns an undivided fractional interest in the real property comprising the condominium's common elements....