The Board of Managers of a Condominium, not the Sponsor, is the proper defendant in a worker’s action seeking to recover for personal injuries sustained while working on a common element of the Condominium. Jerdonek v. 41 W. 72 LLC, 2016 N.Y. App. Div. LEXIS 5522, 2016 N.Y. Slip Op. 5666

(1st Dep’t July 28, 2016).

The plaintiff was injured while working on a scaffold in the boiler room of the Condominium’s building.  The worker sued both the Condominium Board of Managers and the Sponsor, asserting claims under New York Labor Law §§ 240 and 241, which provide that the “owner” of real property is strictly liable for certain types of injury to workers.

The Sponsor moved to dismiss the claims against it, asserting that the conversion of the property to condominium ownership had long since been completed, so that the Board of Managers, not the Sponsor, was the “owner” responsible for the common elements. The appellate court granted the motion and dismissed all claims against the Sponsor.  The court observed that the condominium declaration, filed in 2001, defined the common elements to include the boiler room, and placed the common elements “‘solely under the control of the [condominium’s] board of managers pursuant to the Condominium Act, which ‘recogni[zes] that the board exercises exclusive control over the common elements.’”

The plaintiff asserted that the Sponsor should be jointly liable for his injuries because the Sponsor still owned several units. The court stated that this was irrelevant, relying on a series of precedents holding that the individual unit owners in a condominium are not liable on claims arising from the condition or operations of the common elements.  The court reaffirmed that the Board of Managers, rather than one or more individual unit owners, is the proper defendant “where the claim arises from the common elements or concerns a duty not connected with any individual unit.”  Even if the Sponsor held enough units to control the Board of Managers, this still would not render the Sponsor liable on claims arising from the common elements, because “the condominium declaration transfers complete and exclusive control of the common elements to the board of managers.”  The court further observed that “there is no contention that the condominium in this case did not have a functioning and adequately capitalized board of managers” at the time of plaintiff’s accident.

One judge dissented from the court’s decision. She would have imposed liability on the Sponsor, in part because the Sponsor’s name is still on the deed and hence, in her view, the Sponsor should be regarded as the “owner” of the premises, at least until such time as it has sold 100% of the condominium units.  Beyond that, the dissent implied that all unit owners should be treated as owners of the common elements for liability purposes.  The majority opinion strongly disagreed with this reasoning, stating that “it leads to the conclusion that, where an accident occurs within the common elements of a condominium, each and every owner of a unit in the building may be personally sued on a statutory cause of action that lies against ‘the owner’ of real property.  We think that such a result would be sharply at odds with the expectations of buyers of condominium units, who are led to believe that the risks and liabilities arising from the common elements will be handled on their behalf by the board of managers….”