Jerdonek v. 41 West 72 LLC, et al.

Jerdonek v. 41 West 72 LLC, et al.

Supreme Court of the State of New York, Appellate Division, First Department, August 4, 2016

Plaintiff was injured in a fall from a scaffold while working in a boiler room that is a common element in the defendant, condominium. Plaintiff commenced a Labor Law action against the condominium and the sponsor of the condominium conversion and both sides moved for summary judgment. The Supreme Court granted Plaintiff’s motion for summary judgment and denied the condominium and the sponsor’s motions for summary judgment.

The Appellate Division reversed and held that while the lower court was correct in granting summary judgment in favor of the plaintiff, the lower court should have also granted summary judgment in favor of the sponsor. In so holding, the Appellate Division opined that at the time of the accident the condominium was the “owner” of the common elements, and the common elements were under the exclusive control of the board. Further, “a claim arising from the condition or operation of the common elements does not lie against the owners of the individual units; the proper defendant on such a claim is the board of managers.”

The Court further held that even though the sponsor retained ownership of some of the units in the condominium, they were entitled to dismissal from the action as “if the sponsor of condominium conversion could be sued on a post-conversion cause of action arising from the common elements based on the sponsor’s continued ownership of unsold units, it would allow that each individual unit owner could be sued on exactly the same ground,” on the basis that the Real Property Law grants each unit owner a fractional interest in the common elements.

In her partial dissenting opinion, Justice Gische disagreed with the majority’s grant of the sponsor’s motion for summary judgment and argued that since each unit owner is an “owner” of the common elements (a point with which the majority does not disagree), the sponsor should be held personally liable. Justice Gische noted that the sponsor did not deny that the deed to the condominium was titled in its name. Justice Gische further reasoned that contrary to what the sponsor argued, the filing of the Declaration of Condominium did not “supercede” the deed because the filing of a declaration does not convey ownership of the common elements to the condominium; rather, it merely “subjects the property to the jurisdiction of the Condominium Act.” In support of her position, Justice Gische pointed out that that consistent with the Condominium Act, the declaration here expressly provided that title to the property remained with the sponsor both before and after the filing of the declaration.