Allstate Ins. Co. v Maloy Restoration, Inc.

[*1] Allstate Ins. Co. v Maloy Restoration, Inc. 2006 NY Slip Op 51934(U) [13 Misc 3d 1221(A)] Decided on July 12, 2006 Supreme Court, New York County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2006
Supreme Court, New York County

Allstate Insurance Company a/s/o KENNETH YOON and DOROTHY IMBERT, Plaintiffs,

against

Maloy Restoration, Inc., BHS MANAGEMENT LLC., and SOUNDING CONDOMINIUM, , Defendants.



101220/2004

Karen S. Smith, J.

Defendants, BHS Management LLC.'s and Sounding Condominium's motion for summary judgment dismissing the complaint herein is denied.

Plaintiff, Allstate Insurance Company a/s/o Kenneth Yoon and Dorothy Imbert (hereafter referred to as "Allstate") brought this action, as a subrogor, to recover the funds it paid to its insureds to reimburse them for property damage they allegedly sustained by reason of water infiltration into their condominium apartment(s). It is undisputed that the water leaked in from the roof of the condominium's building while the roof was undergoing repairs. The direct cause of the water infiltration appears to have been the failure of the roofing contractor (defendant Maloy Restoration Inc., which will hereafter be referred to as "Maloy") to properly place and secure a tarpaulin over the roof of the building in order to temporarily protect the building from rain water infiltration during the repairs. Allstate's complaint alleges, inter alia, that defendants, BHS Management LLC (hereafter referred to as "BHS"), as managing agent for defendant, Sounding Condominium (hereafter referred to as "Sounding"), and Sounding, as owner of the condominium building, were negligent in that they failed to hire and supervise a competent, properly licensed and insured contractor to make the necessary roof repairs to Sounding's building. Prior to commencing this action, Allstate had been advised by Maloy's insurance company that it was disclaiming liability under Maloy's insurance policy. Maloy has not appeared in the instant action. In its letter denying coverage, Maloy's insurer indicated that Maloy's business description consisted of "Interior Renovations" and its classification was "as a Contractor who subcontract [sic] work or as a Contractor - executive" (see Exhibit A to Allstate's opposition papers on this motion).

BHS and Sounding now move for summary judgment dismissing the complaint against them. BHS and Sounding have premised their motion upon the contention that, as a matter of law, they cannot be held liable for Malloy's negligence because Malloy was an independent contractor. However, under the circumstances at hand, BHS's and Sounding's position is without merit. Multiple Dwelling Law § 78 and §27-127 of the New York City Administrative Code [*2]make an owner of a multiple dwelling responsible to keep the building, including the roof, in good repair. Therefore, the general rule that an owner is not responsible for the negligent acts of an independent contractor is not available to BHS and Sounding because the statute and New York City Administrative Code impose a nondelegable duty upon the building's owner to keep the building's roof in good repair (cf. Jacobson v 142 E. 16 Cooperative Owners, Inc. et al, 295 AD2d 211 [1st Dept, 2002]). Since BHS and Sounding have offered no evidence in admissible form to make a prima facie showing that no material issues of fact exist in this matter or that they are entitled to judgment as a matter of law, their motion for summary judgment must be denied. Accordingly, it is;

ORDERED: that BHS's and Sounding's motion for summary judgment dismissing the complaint as against them is denied and counsel for all parties shall appear on July 26, 2006 as previously scheduled for mediation.

The foregoing constitutes the decision and order of this court.

Dated: July 12, 2006

ENTER:

____________________________

Hon. Karen S. Smith,J.S.C.