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Pekelnaya v. Allyn10/25/2005
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.
Peter Tom,J.P., Richard T. Andrias, Luis A. Gonzalez and James M. Catterson, JJ.
Index 116732/02
The novel issue raised on this appeal is whether the proportionate interest in the common elements of a condominium held by the owners of the individual units subjects them to liability for injuries sustained by a third party as the result of a defective condition in a common element. In the absence of any statutory basis for recovery, control rather than the unit owners' common interest is the operative criterion upon which liability is predicated. In the absence of such control by the individual unit owners over that component of the common elements alleged to be defective, this Court concludes that the individual defendants cannot be held answerable in damages.
Plaintiffs Aba and Michael Taratuta are father and son. Defendants are the individual owners of the 11 units comprising the Park 106 Condominium, located at 69 West 106th Street in Manhattan (collectively, the unit owners). While walking on the sidewalk, Aba and Michael Taratuta were struck and seriously injured by a section of chain-link fence, measuring approximately 4 feet by 5 feet, that fell from the roof of the condominium. The dislodged section was part of a security fence erected along the parapet wall of the roof to prevent access from adjoining buildings. It was installed prior to the time the condominium acquired the building and, thus, before the unit owners acquired their interest in the common elements upon taking possession of their respective apartments.
Michael Taratuta's injuries included traumatic brain injury, open comminuted skull fractures and multiple intracerebral hemorrhages and contusions, which rendered him severely and permanently disabled. His father sustained blunt head trauma and fractures of the vertebral column, among other injuries. Plaintiffs commenced a previous action against the condominium's board of managers on the theory that the board is responsible for the maintenance of common elements, including the rooftop security fence. Allegedly because damages will exceed the $2 million in insurance carried by the board, plaintiffs commenced this action against the unit owners.
Invoking the doctrine of res ipsa loquitur, the injured plaintiffs seek to recover damages based upon defendants' status as owners of the individual condominium apartments located in the 11-unit, five-story building. Aba Taratuta additionally seeks to recover damages for the emotional distress he suffered as a result of witnessing the injury to his son while within the immediate zone of danger. Plaintiff Ida Taratuta, Aba Taratuta's wife, seeks derivative damages in connection with the injuries sustained by her husband.
The unit owners hold title to their respective condominium apartments in fee simple absolute (Real Property Law § 339-e ). The condominium declaration accords each unit an ownership interest of approximately 9% in the common elements, which comprises the unit owner's "common interest" (Real Property Law § 339-e ). The roof of the premises is included in the common elements. However, it is designated a "limited" common element because its use is restricted to the owners of the fifth-floor apartments, defendants Hinojosa and Ragues, each of whom is allotted a 50% ownership interest in the limited common element. The provisions of the declaration notwithstanding, plaintiffs assert that "the 'access' to the roof is not exclusive to the owners of Units 5A and 5B
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