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Pekelnaya v. Allyn10/25/2005
y sustained was not caused or exacerbated by any voluntary action on the plaintiff's part (Mejia v New York City Tr. Auth., 291 AD2d 225, 227 ). Plaintiffs contend that the second element is satisfied by the exclusive control over the fence exercised by the condominium's board of managers, itself composed of unit owners, as agent for the unit owners. They note that pursuant to the condominium by-laws, article 2, § 2.1, the board "shall act as, and shall be, the agent of the Unit Owners."
Finally, plaintiffs assert that, in support of the motions for dismissal, the individual owners submitted only an unsworn engineering report of an inspection conducted six months prior to the accident. Plaintiffs discount as merely conclusory the unit owners' affidavits declaring their lack of notice of the defective condition of the fence.
The issue to be decided on this appeal - whether liability should be imposed on the owners of individual condominium units for injuries to third persons resulting from a defect in a common element - is apparently a case of first impression. Plaintiffs note that, unlike some other jurisdictions, New York State has not provided for the allocation of responsibility for injury to third persons as the result of negligence in the maintenance and repair of common elements. The unit owners contend, to the contrary, that Real Property Law § 339-ee(1) is dispositive of the issue.
The statutory provisions cited by both sides in support of their respective positions are ultimately unavailing. With respect to Real Property Law § 339-ee(1), plaintiffs make a compelling argument. Essentially, the statute provides that " ny provision . . . requiring registration by the owner . . . shall be deemed satisfied . . . by registration of the board of managers." Assignment of responsibility of the common elements to the board of managers is stated to be "for purposes of enforcement of any such law or code," and any provision of the Multiple Dwelling Law "otherwise applicable, shall be in full force and effect."
It has been observed that "the apparent purpose of the registration statutes is to enable tenants and governmental authorities to readily contact owners or persons responsible for the operation of multiple dwellings" (Lazarus v Liebowitz, 85 Misc 2d 822, 827 ). Registration facilitates the service of notices, orders and summonses (Multiple Dwelling Law § 326) in connection with the enforcement of the building code and similar measures such as the Multiple Dwelling Law, which was enacted for the purpose of establishing and maintaining housing standards (see B.S.L. One Owners Corp. v Rubenstein, 159 Misc 2d 903, 906 ). While Real Property Law § 339-ee(1) places responsibility on the board of managers to respond to a notice of violation pursuant to Multiple Dwelling Law § 326(1) (Matter of William B. May Co. v Department of Health, 123 Misc 2d 1010, 1013 ), it does not address the subject of responsibility for personal injury sustained by third persons due to a defective condition on the premises. Thus, plaintiffs are correct in their assertion that the registration provision of Real Property Law § 339-ee(1) does not relieve the unit owners from liability for injury sustained by reason of a defect in the common elements.
Consideration turns to plaintiffs' contention that Multiple Dwelling Law § 78 imposes liability on the unit owners by virtue of their ownership interest in the common elements. As previously noted, § 78 makes an "owner" responsible "for the safe maintenance of the building and its facilities" (Garcia v Dormitory Auth. of the State of N.Y., 195 AD2d 288, 288 ). The term "owner" is defined in Multiple Dwelling Law § 4(44) to "include the
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