Keo v. Kimball Brooklands Corp.

189 A.D.2d 679

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1993
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Anita Florio, J.), entered November 21, 1991, which granted defendant DiConstanzo’s motion for summary judgment dismissing the amended complaint as against him, unanimously affirmed, without costs.

As managing agent of the apartment complex in which plaintiff Vesna Keo was injured in an incinerator explosion, defendant DiConstanzo (defendant) could be subject to liability for nonfeasance only if he were in complete and exclusive control of the management and operation of the building (Jones v Park Realty, 168 AD2d 945 [appeal No. 2], affd for reasons stated 79 NY2d 795; Gardner v 1111 Corp., 286 App Div 110, 112, affd 1 NY2d 758). The evidence submitted by respondent sufficiently demonstrated his lack of such control, thereby shifting the burden to plaintiffs to lay bare their proof to the contrary, a burden plaintiffs failed to meet. Concur— Sullivan, J. P., Wallach, Kupferman and Kassal, JJ.