Ortiz v. Gun Hill Management, Inc.

81 A.D.3d 512, 916 N.Y.S.2d 590

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2011
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered August 11, 2009, which denied defendant Langsam Property Services Corp.’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The record presents issues of fact as to the scope and extent of defendant managing agent’s (Langsam) control over the property, which if “complete and exclusive” could render Langsam liable for nonfeasance in abating the lead-based paint condition that allegedly injured the infant plaintiff (see German v Bronx United in Leveraging Dollars, 258 AD2d 251, 252 [1999]). Langsam’s contract could readily be construed as giving it “complete and unfettered authority to undertake all repairs costing less than” $2,000, as well as the repair of any condition it deemed an emergency (see Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 48 [2002]; see Espinal v Melville Snow Contrs., 98 NY2d 136, 139-140 [2002]).

Issues of fact also exist as to Langsam’s alleged affirmative acts of negligence, for which it may be liable to plaintiffs if it was in complete and exclusive control of the property (see Caldwell v Gumley-Haft L.L.C., 55 AD3d 408 [2008]; Pelton v 77 Bark Ave. Condominium, 38 AD3d 1, 11 [2006]). The first is whether Langsam failed to timely or adequately remedy the condition despite plaintiff’s numerous complaints over the course of several years. The second is whether Langsam was negligent in failing to move the infant plaintiff into another apartment until October 2004, the Department of Health and Mental Hygiene having found 10 lead-based paint violations in August 2004 (see Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 11 [2006]; German v Bronx United in Leveraging Dollars, 258 AD2d at 252). Concur—Tom, J.P., Saxe, DeGrasse, Freedman and Román, JJ.