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Pekelnaya v. Allyn10/25/2005
94). The element of control is necessary to impose vicarious liability for an agent's negligence on the principal. As this Court stated in Garcia v Herald Tribune Fresh Air Fund (51 AD2d 897, 897 ), " t is well settled that a principal-agency relationship exists where one retains a degree of direction and control over the other."
It is clear that condominium common elements are solely under the control of the board of managers. The Condominium Act provides that the cost of materials and labor incurred in connection with the common elements is payable out of common charges (Real Property Law § 339-e ), which "shall constitute trust funds for the purpose of paying the cost of such labor or materials performed or furnished at the express request or with the consent of the manager, managing agent or board of managers, and the same shall be expended first for such purpose before expending any part of the same for any other purpose" (Real Property Law § 339-l ). Implicit in the statutory requirement that work on the common elements be performed "at the express request or with the consent of the . . . board of managers" is the recognition that the board exercises exclusive control over the common elements.
The control purportedly exercised by the unit owners, as collective principal, over the board of managers, as purported agent, is flatly contradicted by case law reflecting general experience with residential forms of common and cooperative ownership. A board of managers
"takes on the burden of managing the property for the benefit of the proprietary lessees. As one court observed, 'Every man may consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living demand no less'" (Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 537 , quoting Sterling Vil. Condo. v Breitenbach, 251 So 2d 685, 688, n 6 [Fla 1971]).
The prerogative of a board of managers to conduct business as it sees fit is well established. If a condominium or cooperative board were the mere instrumentality of its constituent unit owners, as plaintiffs suggest, the Court of Appeals would not have been moved to note that "some check on its potential powers to regulate residents' conduct, life-style and property rights is necessary to protect individual residents from abusive exercise, notwithstanding that the residents have, to an extent, consented to be regulated and even selected their representatives" (Levandusky, 75 NY2d at 537). However, judicial restraint of the board's powers is not permitted to abrogate "the purposes for which the residential community and its governing structure were formed: protection of the interest of the entire community of residents in an environment managed by the board for the common benefit" (id.). Under the applicable standard of review afforded by the business judgment rule, so long as a managing board acts without discriminatory intent, actions taken "in furtherance of a legitimate purpose of the cooperative or condominium . . . will generally be upheld" (Levandusky, 75 NY2d at 539; see also Horwitz v 1025 Fifth Ave., 7 AD3d 461, 462 ).
The realities of cooperative and condominium governance simply do not comport with plaintiffs' attribution of control to the unit owners based on the board's designation as their agent. Since the unit owners have no control over, or direct responsibility for, the common elements and neither statutory nor common law renders an individual condominium unit owner liable for injuries sustained as the result of defects in the common elem
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