Dempsey v. Mt. Ebo Associates, Inc.

262 A.D.2d 229, 692 N.Y.S.2d 344, 1999 N.Y. App. Div. LEXIS 7415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1999
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered July 29, 1998, which, to the extent appealed from, denied defendant-appellant Ires Real Estate Services’ motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs or disbursements, and the motion granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

Plaintiff Linda Dempsey fell near a condominium parking lot and brought this action against defendant Mt. Ebo Associates, the sponsor and owner of the development, Spring Meadows Home Owners Association, the condominium association that is the successor-in-title to Mt. Ebo, and defendant-appellant Ires Real Estate Services, the managing agent. Plaintiff was descending a stairway to the parking lot when she stepped on to what she thought was the parking lot proper, but actually was its bumper guard or curb. The only cause of the accident given by plaintiff at her deposition was the configuration of the curb and the stairs, which the appellant managing agent had neither designed nor installed. Nor was there any showing that the managing agent’s failure to maintain or keep the premises in good repair caused the accident. A managing agent not in complete and exclusive control is not liable for mere nonfeasance (Gardner v 1111 Corp., 286 App Div 110, 112, affd 1 NY2d 758). Concur — Nardelli, J. P., Williams, Tom, Rubin and Friedman, JJ.