Kerwin v. Fusco

• Decision Date: 29 April 2016
• Docket Number: 230 CA 15-01344.
• Citation: 138 A.D.3d 1398,2016 N.Y. Slip Op. 03290,30 N.Y.S.3d 419
• Parties: Michael C. KERWIN, Plaintiff–Respondent, v. Joseph FUSCO, et al., Defendants, and BH Decker, Inc., Defendant–Appellant. Joseph Fusco, et al., Third–Party Plaintiffs, v. Sunstream Corporation, Third–Party Defendant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1398
30 N.Y.S.3d 419
2016 N.Y. Slip Op. 03290

Michael C. KERWIN, Plaintiff–Respondent,
v.
Joseph FUSCO, et al., Defendants,
and
BH Decker, Inc., Defendant–Appellant.

Joseph Fusco, et al., Third–Party Plaintiffs,
v.
Sunstream Corporation, Third–Party Defendant.

230 CA 15-01344.

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

April 29, 2016.

30 N.Y.S.3d 420

Costello, Cooney & Fearon, PLLC, Camillus (Terance Walsh of Counsel), for Defendant–Appellant.

Bousquet Holstein PLLC, Syracuse (Harrison V. Williams, Jr., of Counsel), for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., SMITH, CARNI, NEMOYER, and CURRAN, JJ.

30 N.Y.S.3d 421

MEMORANDUM:

138 A.D.3d 1399

Plaintiff commenced this action seeking damages for injuries he sustained when he fell through a stairway in the house where he resided as a student-tenant in Delhi, New York. Defendant-third-party plaintiff Joseph Fusco (Fusco), the owner of the rental property, entered into a written Property Management Agreement (Agreement) with defendant-third-party plaintiff BH Decker, Inc. (Decker), pursuant to which Decker was to manage the property. Fusco resided in Staten Island, New York, and visited the premises once a year in August when the students returned to begin the fall semester. Under the terms of the Agreement, Decker, which had its place of business in Delhi, New York, was to “manage and operate” the premises “with due diligence and [was] authorized and responsible on behalf of [Fusco] for acts which are reasonably necessary for property management,” including but not limited to inspecting for damage and making contracts for utilities and maintenance as Decker “deemed advisable.” The Agreement designated Decker as the entity that would “field all calls & communications from tenants” and required only that Decker “advise” Fusco of any “non-emergency” corrections or repairs that Decker deemed necessary.

As a result of prior water damage to the house, the premises were undergoing mold remediation work by third-party defendant Sunstream Corporation (Sunstream) at the time of plaintiff's accident. The written “Proposal” from Sunstream for that work was directed and addressed to Decker. On the day before plaintiff's accident, plaintiff and another tenant of the house noticed a loose stair tread in the stairway. The other tenant called Benjamin Decker, the president of Decker, who came to the building and made repairs to the tread. While Benjamin Decker was at the property, he noticed that Sunstream had removed a closet and structural framing under the staircase while performing mold remediation. Benjamin Decker undertook no further repair or remedial action.

Insofar as relevant...