Ortiz v Gun Hill Mgt., Inc.

Ortiz v Gun Hill Mgt., Inc. 2011 NY Slip Op 01122 Decided on February 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 17, 2011
Tom, J.P., Saxe, DeGrasse, Freedman, Román, JJ.
4282 13063/06

[*1]London Rain Ortiz, an Infant by His Mother and Natural Guardian, Kristal Fowler, et al., Plaintiffs-Respondents,

v

Gun Hill Management, Inc., Defendant-Respondent, Sumkin Family Limited Partnership XII, et al., Defendants, Langsam Property Services Corp., Defendant-Appellant.




Mound Cotton Wollan & Greengrass, New York (Kenneth R.
Lange of counsel), and McMahon Martine & Gallagher,
Brooklyn (Patrick W. Brophy of counsel), for appellant.
Levy, Phillips & Konigsberg, LLP, New York (Philip Monier
III of counsel), for Ortiz respondents.
Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Deirdre E.
Tracey of counsel), for Gun Hill Management Inc., respondent.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 11, 2009, which denied defendant Langsam Property Services Corp.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The record presents issues of fact as to the scope and extent of defendant managing agent's (Langsam) control over the property, which if "complete and exclusive" could render Langsam liable for nonfeasance in abating the lead-based paint condition that allegedly injured the infant plaintiff (see German v Bronx United in Leveraging Dollars, 258 AD2d 251, 252 [1999]). Langsam's contract could readily be construed as giving it "complete and unfettered authority to undertake all repairs costing less than" $2,000, as well as the repair of any condition it deemed an emergency (see Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 48 [2002]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 139-140 [2002]).

Issues of fact also exist as to Langsam's alleged affirmative acts of negligence, for which it may be liable to plaintiffs if it was in complete and exclusive control of the property (see Caldwell v Gumley-Haft L.L.C., 55 AD3d 408 [2008]; Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 11 [2006]). The first is whether Langsam failed to timely or adequately remedy the condition despite plaintiff's numerous complaints over the course of several years. The second is [*2]whether Langsam was negligent in failing to move the infant plaintiff into another apartment until October 2004, the Department of Health and Mental
Hygiene having found 10 lead-based paint violations in August 2004 (see Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 11 [2006]; German v Bronx United in Leveraging Dollars, 258 AD2d at 252).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 17, 2011

CLERK