L.R.O. v Gun Hill Mgt., Inc.

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[*1] L.R.O. v Gun Hill Mgt., Inc. 2009 NY Slip Op 51582(U) [24 Misc 3d 1223(A)] Decided on July 21, 2009 Supreme Court, Bronx County Hunter, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2009
Supreme Court, Bronx County

L.R.O., an Infant by her Mother and Natural Guardian K.F., and K.F., Individually, Plaintiffs,

against

Gun Hill Management, Inc., Langsam Property Services Corp., Sumkin Family Limited Partnership XII, Sumkin Realty Corp., and Ira Sumkin, Defendants.



13063/06



Counsel for Defendant Langsam Property Services Corp.: Kenneth R. Lange, Esq., of Mound Cotton Wollan & Greengrass. Counsel for Plaintiff: Philip Monier III, Esq., of Levy, Phillips & Konigsberg, LLP.

Alexander W. Hunter, J.



The motion by defendant Langsam Property Services Corp., ("Langsam") for summary judgment dismissing plaintiffs' complaint, is denied.

The cause of action is for personal injuries sustained by infant plaintiff L.R.O. from the ingestion and inhalation of lead paint at XXX East 242nd Street Apartment XX, Bronx, New York. Plaintiffs claim that the defendants were actively negligent and reckless in "allowing, causing, and/or neglecting hazardous lead-based paint conditions" in their apartment.

The infant plaintiff and her mother, K.F., have resided at the premises since 1999. On August 17, 2004, L.R.O. was diagnosed with an elevated blood lead level of 19 micrograms per deciliter due to the ingestion of lead-based paint. K.F. made multiple complaints to the superintendent of the building in 2001, 2002 and 2003 about peeling and chipped paint. On August 8, 2004, the Department of Health inspected the apartment and found 10 lead paint violations throughout K.F.'s apartment. On September 7, 2004, Langsam received an Order to Abate from the Department of Health advising them that a child under the age of six had been poisoned by lead in the apartment and that the violations were to be immediately abated. (Plaintiff's Exhibit B). According to K.F.'s deposition testimony, the paint repair work did not commence until two months later. [*2]

Defendant asserts that on January 11, 2001, Langsam and Gun Hill Management, Inc. ("Gun Hill") entered into an exclusive agreement for the day to day management of the property located at XXX East 242nd Street, Bronx, New York. According to the terms of the agreement, Gun Hill authorized Langsam to rent out the apartments, collect rent and deposit them into a separate account, institute and prosecute legal actions, make necessary repairs not in excess of $2,000 without prior approval from Gun Hill, and supervise, hire and discharge employees. (Defendant's Exhibit G). The agreement also explicitly stated that all employees and contractors are under the employ of Gun Hill and not Langsam. The terms of the agreement cannot be modified orally and to date, no provisions have been modified or rescinded and is in effect to this date.

Article II ¶ f of the subject agreement states that "Agent is authorized, in the name of and at the expense of Owner, to make or cause to be made such ordinary repairs and/or alterations to the premises as may be advisable or necessary, and to purchase such supplies as may be advisable or necessary. The expense to be incurred for any one item of alteration or repair shall not exceed the sum of $2,000, unless authorized by Owner, except under such circumstances as Agent shall deem to be an emergency..." Although there is no specific provision in the agreement which pertains to painting repair, Langsam had the power to make all necessary repairs within the building. Paragraph (f) gave Langsam the broad authority to make ordinary repairs less than $2,000 without first obtaining approval from Gun Hill. According to the deposition testimony of the property manager, Linda Hernandez, a paint job would cost less than $2,000. She also considered lead paint violations found in an apartment with a child under the age of six an emergency. (Defendant's Exhibit E). This situation would fall within the circumstances described in the management agreement.

Defendant Langsam argues that is entitled to dismissal of the complaint because Langsam, as the managing agent, never possessed complete and/or exclusive control of the property. Langsam further contends that since it lacked the requisite exclusive control of the premises, it owed no duty to third parties for the repair work.

In opposition to defendant's motion, plaintiffs assert that there are issues of material fact that must be determined by a jury at trial. Defendant Langsam contends that they are not liable to plaintiffs because the did not have complete and exclusive control of the property because defendant Gun Hill retained rights via the management agreement. Plaintiffs argue that the issue of whether or not Langsam had exclusive control is an issue of material fact and therefore summary judgment would be improper. In support, plaintiffs annex the same exclusive management agreement to their papers and argue that under the terms of the agreement, defendant Langsam had the authority to make all necessary repairs in plaintiffs' apartment and failed to do so.

It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the movant [*3]establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor...and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). The court's function on a motion for summary judgment is issue-finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957).

It has also been established that an agent is not liable to third persons for nonfeasance, but only for affirmative acts of negligence. Greco v. Levy, 257 A.D. 209 (1st Dept. 1939). However, a managing agent of a building may be liable for nonfeasance where it has complete and exclusive control of the management and operation f the building. Ioannidou v. Kingswood Mgt. Corp., 203 AD2d 248 (2nd Dept. 1994). In the case at bar, plaintiff is not alleging mere nonfeasance, but is instead alleging that defendant "acted negligently and recklessly in allowing, causing, and/or neglecting hazardous lead-based paint conditions in the plaintiffs' apartment. Managing agents may be held liable for affirmative acts of negligence. (see Lennon v. Oakhurst Gardens Corp., 229 AD2d 897 (3rd Dept. 1996); Reliance Ins. Co. v. Morris Assocs., 200 AD2d 728 (2nd Dept. 1994); Jones v. Archibald, 45 AD2d 532 (4th Dept. 1974)).

The issue of whether Langsam lacked complete and exclusive control of the property is one that should be decided by a jury. The infant plaintiff's injuries are claimed to result from the failure to make timely paint repairs which fell under the limited authority given to Langsam under the contract. Defendant Langsam failed to demonstrate that its property management agreement was not comprehensive and exclusive, so as to entirely displace Gun Hill's duty to maintain the premises in a reasonably safe condition. Since the infant plaintiff's injuries occurred as a result of the agent's failure to make repairs that fell within its authority, defendant Langsam may be held liable. (see Tushaj v. 322 Elm Mgt. Assocs., 293 A.D.22 44 (1st Dept. 2002); Stevanovic v. T.U.C. Mgt. Co. Inc., 305 AD2d 133 (1st Dept. 2003)).

Accordingly, defendant's motion for summary judgment dismissing plaintiffs' complaint is denied.

This constitutes the decision and order of this court.

Dated:July 21, 2009____________________________________

J.S.C.

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