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Pekelnaya v. Allyn10/25/2005
The condominium being a creature of statute, the Legislature is the appropriate body to weigh the interest of an injured party in recovering damages against the interest of the individual unit owners in avoiding liability for the consequences of acts or omissions beyond their control. The failure of the Legislature to provide for liability in the absence of control by condominium unit owners over the maintenance and repair of the common elements precludes the courts from imposing responsibility by implication. Statutes which create such vicarious liability are narrowly construed (id. at 27-28). "The Legislature is presumed to be aware of the law in existence at the time of an enactment and to have abrogated the common law only to the extent that the clear import of the language of the statute requires" (B & F Bldg. Corp. v Liebig, 76 NY2d 689, 693 ). The condominium form of ownership being purely a creation of statute, in the absence of any provision in the Condominium Act holding the unit owners vicariously liable for the acts and omissions of the board of managers, it cannot be said that the Legislature intended to provide a means of recovery to an injured third person predicated solely upon the interest of the unit owners in the common elements.
Plaintiffs advance the argument that the unit owners should be held liable for the board's negligence in the maintenance of the common elements based upon a principal-agent relationship. Multiple Dwelling Law § 4(44) defines "owner" to include "any . . . person . . . directly or indirectly in control of a dwelling." Thus, plaintiffs suggest, the unit owners are responsible for maintenance and repairs to the common elements because the condominium board acts on their behalf.
While this argument is superficially plausible, it is unsupported by either common law, the Condominium Act or practical experience. Where, as here, the putative agent (the board of managers) is not a servant, vicarious liability will not be imposed on the principal (the unit owners, collectively). "Since an agent who is not a servant is not subject to any right of control by his employer over the details of his physical conduct, the responsibility ordinarily rests upon the agent alone, and the principal is not liable for the torts which [the agent] may commit" (Prosser and Keeton, Torts § 70, at 508 [5th ed]).
Vicarious liability of a principal for an agent's negligence is predicated on "the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss" (id. § 69, at 500). In the extreme, where the principal's control is exclusive, liability may be imposed under the doctrine of res ipsa loquitur. For instance, under circumstances where two unconscious plaintiffs were under a hospital's care and the hospital conceded that it exercised complete control over the premises, the hospital staff and the instrumentality causing injury , liability was imposed even though injury resulted from the deliberate act of an unknown person (Morris v Lenox Hill Hosp., 232 AD2d 184 , affd 90 NY2d 953 for reasons stated below [poisoning]).
Where control is lacking, however, liability is not imposed even when, in the context of a motion for summary judgment to dismiss the complaint, it is presumed that the putative principal's negligence can be established (see Sawh v Schoen, 215 AD2d 291 ). In Sawh, a doctor gave allegedly erroneous advice to a colleague concerning a patient of their shared medical practice. The advising physician was not held liable for the patient's resulting injury due to his lack of control over either the patient's care or the colleague who administered it (id. at 292-2
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