| Vushaj v Insignia Residential Group, Inc. |
| 2008 NY Slip Op 03130 [50 AD3d 393] |
| April 10, 2008 |
| Appellate Division, First Department |
| Kanto Vushaj et al., Respondents, v Insignia ResidentialGroup, Inc., Appellant, et al., Defendants. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondents.
Order, Supreme Court, Bronx County (Sallie Manzanet-Daniels, J.), entered on or aboutOctober 17, 2007, which denied defendant Insignia's motion for summary judgment dismissingthe complaint, unanimously reversed, on the law, without costs, and the motion granted. TheClerk is directed to enter judgment in favor of defendant Insignia dismissing the complaint asagainst it.
Plaintiff Kanto Vushaj, a handyman employee of the nonparty cooperative corporation, wasinjured while performing a fuse box electrical repair. Insignia, the management company, owedthis plaintiff no duty to conduct inspection and maintenance of the building's removable fuse"blocks," one of which exploded while he was replacing fuses. While Insignia's agreement withthe owner granted it broad authority to make repairs costing less than $2,500 (see Stevanovicv T.U.C. Mgt. Co., 305 AD2d 133 [2003]), there is no evidence that—under the termsof this agreement or in actual practice—the management company's "duties includedmaking periodic inspections and ensuring that the building was maintained in good repair"(cf. Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 45 [2002]). Generally, "individualliability cannot be based upon an allegation that amounts to mere nonfeasance unless plaintiffestablishes, as a matter of law, that the managing agent was in complete and exclusive control ofthe premises" (Hakim v 65 Eighth Ave.,LLC, 42 AD3d 374, 375 [2007]). There is an exception for situations in which apromisor is subject to tort liability for failing to exercise due care in the execution of the contractif "the contracting party has entirely displaced the other party's duty to maintain the premisessafely" (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). That exception isinapplicable here because Insignia "lacked the broad authority to make all necessary repairs or toresolve tenant complaints without a special arrangement with the owner, and the owner retainedthe primary duty to make repairs and safely maintain the premises" (Clark v Kaplan, 47 AD3d 462, 463[2008]). Another exception, for situations where the employee reasonably relies to his detrimenton a defendant contractor's continuing performance of a contractual obligation to an owner(Espinal, 98 NY2d at 140), is also inapplicable, since there is [*2]no evidence of any such reliance by the injured plaintiffon—or even awareness of—Insignia's limited involvement with maintaining thebuilding's electrical system.
Furthermore, there is no evidence that Insignia had actual notice of the particular fuse blockdefect that caused the accident (compare Tushaj v Elm Mgt. Assoc., 293 AD2d 44[2002], supra, with DeVizio v Hobart Corp., 142 AD2d 508, 510 [1988]). Norwas there any evidence that the defect was visible or apparent, or that it existed for a sufficientlength of time prior to the accident to have allowed Insignia's employees to discover and remedyit, such as would have afforded constructive notice (id. at 511).Concur—Gonzalez, J.P., Nardelli, Buckley and Catterson, JJ.