 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Pekelnaya v. Allyn10/25/2005
owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, agent, or any other person, firm or corporation, directly or indirectly in control of a dwelling." Plaintiffs argue that the unit owners, by virtue of their aggregate, respective minority ownership interests, are the "owner or owners" of the common elements. Alternatively, plaintiffs maintain that because the unit owners have surrendered less than complete ownership and control of the common elements to the board of managers, they cannot escape the liability imposed on owners by Multiple Dwelling Law § 78.
As this Court has stated, "The controlling tenet of statutory construction is that an act shall be given the effect intended by the Legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 92 )" (Thoreson v Penthouse Intl., 179 AD2d 29, 33 , affd 80 NY2d 490 ). It is inconceivable that the Legislature intended the definition of the term "owner" contained in the Multiple Dwelling Law to apply to individual condominium unit owners because the Multiple Dwelling Law (L 1929, ch 713) preceded the enactment of the Condominium Act (L 1964, ch 82) by some 35 years. In addition, the nature of the ownership interest in the common elements bestowed on the unit owner by the Condominium Act is materially dissimilar to the freehold interest necessary to subject a person to liability as an "owner" under Multiple Dwelling Law § 78.
To qualify as an "owner" based on a property interest in the premises, a person must be "the owner . . . of the freehold of the premises or lesser estate therein" (Multiple Dwelling Law § 4 ). The unit owners' interests in their respective condominium units clearly subject them to liability as "owners" under Multiple Dwelling Law § 78 because ownership in fee simple absolute (Real Property Law § 339-e ) is an interest in the freehold (see Garner, A Dictionary of Modern Legal Usage, at 252). By contrast, a unit owner's interest in the common elements - the "common interest" - is defined as the "proportionate undivided leasehold interest in the common elements appertaining to each unit, as expressed in the declaration" (Real Property Law § 339-e ). This minority proportionate leasehold interest is not an interest in the freehold necessary to subject the condominium unit owner to liability as an owner of the common elements under the Multiple Dwelling Law (cf. People v Reyes, 75 NY2d 590, 594 [retention of interest in freehold and control over premises rendered defendant liable for condition of premises despite net lease]).
Plaintiffs correctly note that the condominium form of ownership is purely a creature of statute. As a legislative enactment in derogation of the common law, the Condominium Act is subject to strict construction (see Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414 [zoning ordinance]; Maxwell v State Farm Mut. Auto. Ins. Co., 92 AD2d 1049, 1050 [no-fault insurance]; McKinney's Cons Laws of NY, Book 1, Statutes § 301). Especially where statutes impose liability where none was previously recognized, "they are deemed to abrogate the common law only to the extent required by the clear import of the statutory language" (Morris v Snappy Car Rental, 84 NY2d 21, 28 ). Plaintiffs do not point to any provision of the Condominium Act that imposes liability on a unit owner for injury caused by the defective condition of a common element; nor do they suggest that the common law recognizes liability based upon such a premise. Indeed, they concede that the Condominium Act does not address the apportionment of tort liability involving a common element.
Page 1 2 3 4 5 6 7 8 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|