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Pekelnaya v. Allyn10/25/2005
since such units do not have 'direct and exclusive access from the interior of [their] respective units.'" Rather, all unit owners have the same access to the roof, which can only be reached by way of a common interior stairway leading to a common doorway at roof level. Thus, for purposes of this appeal, the unit owners are all in the same legal position.
The unit owners appeal from the denial of their motions for accelerated judgment dismissing the complaint and all cross claims against them (CPLR 3211; 3212). On the motion, they argued that (1) in the absence of control over the roof of the building, they had no duty to inspect or maintain the roof area or the rooftop security fence; (2) they had no prior notice of any defect or dangerous condition relating to the fence; and (3) under the condominium's governing instruments, access to the roof of the building, where the dislodged portion of the security fence was located, is exclusively the right of the owners of apartments 5A and 5B.
Supreme Court denied the motions, reasoning that Multiple Dwelling Law § 78 places the responsibility to maintain the premises in safe condition upon the "owner." Because the unit owners have not relinquished their collective ownership of the common elements, the court concluded that they are statutorily liable to plaintiffs.
On this appeal, the unit owners argue that the Condominium Act (Real Property Law § 339-d, et seq.) places the duty to maintain the common elements on the condominium's board of managers. They further contend that the court improperly applied the doctrine of res ipsa loquitur to subject them to liability.
Plaintiffs concede that the parapet-wall fence forms part of the common elements of the condominium. Plaintiffs also acknowledge that the board has the power and the duty to maintain the common elements. Nevertheless, plaintiffs contend that because of the part interest held by each individual unit owner in the condominium's common elements, Multiple Dwelling Law § 78 imposes upon them, as their collective owner, a non-delegable "duty to persons on its premises to maintain them in a reasonably safe condition" (Mas v Two Bridges Assoc., 75 NY2d 680, 687 ). Plaintiffs argue that statutory liability is abated only if an owner has parted with all possession and control of the premises (citing Bonifacio v 910-930 Southern Blvd. LLC, 295 AD2d 86 ).
Initially, plaintiffs take issue with the unit owners' contention that, by statute, maintenance and repair of the individual condominium unit is the responsibility of the unit owner, while maintenance and repair of the common elements is the responsibility of the board of managers. Plaintiffs argue that, while the board of managers is designated as the "person in control of the common elements" (Real Property Law § 339-ee ), the statutory designation is limited, by its terms, to the condominium's duty to comply with owner registration provisions; all other provisions of the Multiple Dwelling Law, including § 78, remain applicable. Plaintiffs conclude that, under the latter provision, the unit owners remain liable for the defective condition of the parapet-wall fence by virtue of their respective minority ownership interests in the common elements.
As to the merits, plaintiffs rely on the doctrine of res ipsa loquitur, noting that portions of rooftop fencing do not normally drop to the sidewalk in the absence of some sort of negligence. Res ipsa loquitur may be invoked when a plaintiff can establish that (1) the type of accident is one that does not occur in the absence of negligence; (2) it is attributable to an agency or instrumentality within the defendant's exclusive control; and (3) the injur
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