GERMAN v. PWB (1999)

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered December 11, 1997, which denied defendant-appellant PWB Management Real Estate's motion for summary judgment without prejudice to renewal upon completion of discovery, unanimously affirmed, without costs.

The infant plaintiff, Catherine German, and her mother, Rosalia German, have resided in apartment 416 at 1740 Grand Avenue, Bronx, New York, from November 1992 to the present.   On or about January 12, 1994, the infant plaintiff was diagnosed with elevated lead levels in her blood, allegedly resulting from ingestion of lead-based paint in the apartment.   In March 1996, plaintiffs commenced the instant action for personal injuries against defendants BUILD, the owner of the building, and PWB Management Real Estate (“PWB”), the managing agent.   The complaint alleged, inter alia, that defendants were negligent “in causing, creating, permitting and/or allowing a dangerous, hazardous, defective and unlawful condition” to exist in plaintiffs' apartment, viz, that the paint on the walls, ceiling and floor had an unsafe lead content.

In July 1997, PWB moved for summary judgment on two separate grounds.   First, PWB argued that it could not be liable for the infant plaintiff's injuries since it assumed management duties for the premises six months after she was diagnosed with elevated lead levels.   Second, it contended that notwithstanding the timing of its duties, it could not be liable as managing agent because it did not exercise complete and exclusive control over the management of the building.   The IAS court denied the motion, without prejudice to renewal upon the completion of discovery.   The court ruled that the complaint alleged lead exposure both before and after the date PWB claimed it assumed its duties, and that documentary proof submitted by BUILD in opposition to the motion raised a triable issue of fact as to the degree of control exercised by PWB.

 PWB's motion for summary judgment was properly denied.   As an exhibit to its opposition papers, BUILD submitted a PWB work order form relating to plaintiff's apartment dated January 18, 1994, which is six months prior to the date PWB claims it assumed management duties.   Based on this documentary evidence submitted, a triable issue of fact exists as to whether PWB's management of the premises coincided with the infant plaintiff's alleged exposure to lead based paint therein.

 A triable issue fact also exists as to whether PWB's managerial prerogatives respecting the subject premises were sufficiently encompassing to support the imposition of liability upon it for plaintiff's allegedly lead-induced harm.   It is true, as PWB argues, that a managing agent may be held liable for nonfeasance only if it is in complete and exclusive control of the management and operation of the building (see, Ioannidou v. Kingswood Mgmt. Corp., 203 A.D.2d 248, 249, 610 N.Y.S.2d 277;  Keo v. Kimball Brooklands Corp., 189 A.D.2d 679, 592 N.Y.S.2d 373;  Gardner v. 1111 Corp., 286 App.Div. 110, 141 N.Y.S.2d 552, affd. 1 N.Y.2d 758, 152 N.Y.S.2d 303, 135 N.E.2d 55).   However, plaintiffs submitted a document distributed to all tenants at the premises that PWB was taking over “all management duties” from the owner in June 1994.¹  Such evidence directly refutes PWB's evidence alleging that BUILD reserved for itself a degree of control over the management of the building.   Since, in contrast to the above-mentioned cases relied on by PWB, there is no written agreement here between BUILD and PWB clarifying the precise scope of PWB's duties, a triable issue of fact exists on this issue.

Additionally, there is evidence in the record demonstrating that PWB's management duties specifically included lead paint inspection and abatement.   Further, contrary to PWB's assertions, plaintiffs' complaint does allege that the defendants caused or created the dangerous condition.   Thus, plaintiffs allege more than mere nonfeasance, but also affirmative acts of negligence by PWB, for which a managing agent may be held liable (see, Lennon v. Oakhurst Gardens Corp., 229 A.D.2d 897, 898, 645 N.Y.S.2d 652;  Reliance Ins. Co. v. Morris Assocs., P.C., 200 A.D.2d 728, 730, 607 N.Y.S.2d 106;  Jones v. Archibald, 45 A.D.2d 532, 535, 360 N.Y.S.2d 119).   Since plaintiffs assert a continuing injury caused by PWB's active negligence, summary judgment was properly denied.

FOOTNOTES

1.   Although the date on this document does support PWB's argument that it did not commence its management duties at the subject building until June 1994, the aforementioned January 1994 work order creates a disputed issue of fact on this point.

MEMORANDUM DECISION.