| Clark v Kaplan |
| 2008 NY Slip Op 00199 [47 AD3d 462] |
| January 15, 2008 |
| Appellate Division, First Department |
| Francesco C. Clark, Respondent, v F. Cappy Kaplan et al.,Defendants, and Island Properties Real Estate & Management Corp., Appellant. (And aThird-Party Action.) |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York City (Jillian Rosen of counsel), forrespondent.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or aboutFebruary 5, 2007, which, to the extent appealed from as limited by the briefs, denied the motionof defendant Island Properties Real Estate & Management Corp. for summary judgmentdismissing the complaint as against it, unanimously reversed, on the law, without costs, and themotion granted. The Clerk is directed to enter judgment in favor of said defendant dismissing thecomplaint as against it.
Defendant, the managing agent of real property on which plaintiff sustained personal injuriesdiving into a swimming pool, established its entitlement to summary judgment by tenderingevidence demonstrating that its unwritten property management services agreement was notcomprehensive and exclusive, so as to entirely displace the owner's duty to maintain thepremises, or the pool alone, in a reasonably safe condition (see Jackson v Board of Educ. of City of N.Y., 30 AD3d 57, 65[2006]; Hopper v Regional Scaffolding& Hoisting Co., Inc., 21 AD3d 262, 263 [2005], lv denied 6 NY3d 806 [2006]),and that it did not have "complete and unfettered authority" to repair the defective underwaterpool light (Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 48 [2002]). Pursuant to theagreement, defendant had a duty to report complaints from tenants to the owner, but lacked thebroad authority to make all necessary repairs or to resolve tenant complaints without a specialarrangement with the owner, and the owner retained the primary duty to make repairs and safelymaintain the premises. The record demonstrates that defendant fulfilled its contractual obligationby informing the owner of tenant complaints about [*2]thedefective pool light, and that the owner told defendant she was working on having the lightrepaired and did not believe it was defendant's responsibility to do so. Concur—Lippman,P.J., Buckley, Gonzalez and Sweeny, JJ.