Hiring and firing of the building's employees were subject to "such direction as Owner may give to Agent" (id. at 1). Hence, the terms of the Management Agreement establish that Greenthal could not have entirely displaced 910 Fifth's duty to maintain the building as its control over the building was not absolute (see Davis v Prestige Mgt. Inc., 98 AD3d 909, 910 [1st Dept 2012]; Caldwell v Two Columbus Ave. Condominium, 92 AD3d 441, 442 [1st Dept 2012]; Baulieu v Ardsley Assoc., L.P., 85 AD3d 554, 555-556 [1st Dept 2011]; Vushaj, 50 AD3d at 394; Clark v Kaplan, 47 AD3d 462, 463 [1st Dept 2008], lv denied 11 NY3d 701 [2008]; Gardner v 1111 Corp., 286 App Div 110, 112-113 [1st Dept 1955], affd 1 NY2d 758 [1956]). Moreover, both Cohen and Fine state that repair work costing more than $5,000 required prior Board approval (NYSCEF Doc No. 213 [Cohen aff] at ¶ 4; NYSCEF Doc No. 224, affirmation of Greenthal's counsel, Exhibit "J" [Fine deposition] at 101-102), and Century's June 2011 proposal to modernize the service elevator lists a price of $187,500 plus sales tax (NYSCEF Doc No. 205, affirmation of Century's counsel, Exhibit "J" at 1).
Decided August 28, 2008. Appeal from the 1st Dept: 47 AD3d 462. Motions For Leave to Appeal denied.
In addition, issues of fact exist as to whether Pride, as the building managing agent, could be held liable for failing to remedy the potentially hazardous situation posed by the manhole cover (see Stevanovic v. T.U.C. Mgt. Co., 305 A.D.2d 183, 134, 758 N.Y.S.2d 59 [1st Dept. 2003]). The contract between Tower and Pride afforded Pride broad authority to ensure the common areas of the interior and exterior of the building were properly cleaned and maintained, without requiring prior authorization or permission from Tower (see Clark v. Kaplan, 47 A.D.3d 462, 463, 851 N.Y.S.2d 10 [1st Dept. 2008]). Because Con Ed did not oppose Tower and Pride’s motion for summary judgment dismissing its cross-claim for indemnification, the cross-claim was properly dismissed (see Bonventre v. Soho Mews Condominium, 173 A.D.3d 411, 412, 99 N.Y.S.3d 629 [1st Dept. 2019]).
Tower and Pride did not meet their prima facie burden on summary judgment by establishing that they lacked actual or constructive knowledge of the dangerous condition presented by the errant manhole cover (see Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837-838 [1986]; Ferguson v City of New York, 210 A.D.3d 527, 528 [1st Dept 2022]). In addition, issues of fact exist as to whether Pride, as the building managing agent, could be held liable for failing to remedy the potentially hazardous situation posed by the manhole cover (see Stevanovic v T.U.C. Mgt. Co., 305 A.D.2d 133, 134 [1st Dept 2003]). The contract between Tower and Pride afforded Pride broad authority to ensure the common areas of the interior and exterior of the building were properly cleaned and maintained, without requiring prior authorization or permission from Tower (see Clark v Kaplan, 47 A.D.3d 462, 463 [1st Dept 2008]).
Further, it cannot be said that plaintiff detrimentally relied on C & W's continued performance of its contractual duty to repair the roof, as there was no evidence that he knew of this contractual obligation, and he was aware that repairs had to first be approved by Verizon. Moreover, it cannot be concluded that C & W entirely displaced Verizon's duty to maintain the roof area safely, given the evidence establishing that Verizon retained control over roof repairs (seeClark v. Kaplan, 47 A.D.3d 462, 462–463, 851 N.Y.S.2d 10 [1st Dept. 2008], lv denied 11 N.Y.3d 701, 864 N.Y.S.2d 388, 894 N.E.2d 652 [2008] ). Although paragraph 2.9.1.2 of the MSA provided that C & W was to maintain and repair all roof areas, the deposition testimony established that the parties did not adhere to this contractual provision.
incorrect information when he asserted that the water infiltration problems would be resolved when the building was sealed, that they reasonably relied to their detriment on this information when they entered into the contract to purchase the unit, and that there is a question of fact as to whether a special relationship existed between them and the sales agent who they allege was an agent of the Sponsor ( see J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144, 148, 831 N.Y.S.2d 364, 863 N.E.2d 585 [2007]; Joseph v. NRT Inc., 43 A.D.3d 312, 841 N.Y.S.2d 38 [2007] ). Urban Associates, as managing agent acting on behalf of the condominium, is not liable to plaintiffs, third parties to the management agreement, for nonfeasance ( see Pelton v. 77 Park Ave. Condominium, 38 A.D.3d 1, 11–12, 825 N.Y.S.2d 28 [2006] ), and there is no evidence that the management agreement was so “comprehensive and exclusive” as to entirely displace the condominium board's duty to maintain the premises ( see Clark v. Kaplan, 47 A.D.3d 462, 851 N.Y.S.2d 10 [2008], lv. denied 11 N.Y.3d 701, 864 N.Y.S.2d 388, 894 N.E.2d 652 [2008] ). Finally, the court properly granted New York Urban's motion to dismiss the negligence claim against it since it ceased managing the building before plaintiffs closed on the contract of sale and thus, cannot be held liable for any alleged incidents that took place after it no longer managed the building.
dic inspections and ensuring that the building was maintained in good repair" ( cf. Tushaj v Elm Mgt. Assoc., 293 AD2d 44, 45). Generally, "individual liability cannot be based upon an allegation that amounts to mere nonfeasance unless plaintiff establishes, as a matter of law, that the managing agent was in complete and exclusive control of the premises" ( Hakim v 65 Eighth Ave., LLC, 42 AD3d 374, 375). There is an exception for situations in which a promisor is subject to tort liability for failing to exercise due care in the execution of the contract if "the contracting party has entirely displaced the other party's duty to maintain the premises safely" ( Espinal v Melville Snow Contrs., 98 NY2d 136, 140). That exception is inapplicable here because Insignia "lacked the broad authority to make all necessary repairs or to resolve tenant complaints without a special arrangement with the owner, and the owner retained the primary duty to make repairs and safely maintain the premises" ( Clark v Kaplan, 47 AD3d 462, 463). Another exception, for situations where the employee reasonably relies to his detriment on a defendant contractor's continuing performance of a contractual obligation to an owner ( Espinal, 98 NY2d at 140), is also inapplicable, since there is no evidence of any such reliance by the injured plaintiff on — or even awareness of — Insignia's limited involvement with maintaining the building's electrical system. Furthermore, there is no evidence that Insignia had actual notice of the particular fuse block defect that caused the accident ( compare Tushaj v Elm Mgt. Assoc., 293 AD2d 44, supra, with DeVizio v Hobart Corp., 142 AD2d 508, 510). Nor was there any evidence that the defect was visible or apparent, or that it existed for a sufficient length of time prior to the accident to have allowed Insignia's employees to discover and remedy it, such as would have afforded constructive notice ( id. at 511).
Here, GMC has established its prima facie entitlement to summary judgment by establishing that, as managing agent for East 39th, it was not liable to plaintiff, a third party to the management agreement, for nonfeasance (See Caldwell v Two Columbus Ave. Condominium, 92 A.D.3d 441, 442 [1st Dept 2012] citing Pelton v 77 Park Ave. Condominium, 38 A.D.3d 1, 11-12 [2006]). Additionally, GMC demonstrated that the management agreement clearly was not so "comprehensive and exclusive" as to entirely displace the obligation of East 39th to maintain and repair the premises and to hire and fire employees (See Caldwell v Two Columbus Ave. Condominium, 92 A.D.3d at 442 citing Clark v Kaplan, 47 A.D.3d 462 [2008], Iv denied 11 N.Y.3d 701 [2008]).
Thus, it is has failed to provide proof that its contract with NYU was not so comprehensive and exclusive so as to entirely displace NYU's duty to maintain the premises. See Clark v. Kaplan, 47 A.D.3d 462 (1st Dep't 2008).
"Generally, 'individual liability cannot be based upon an allegation that amounts to mere nonfeasance unless plaintiff establishes, as a matter of law, that the managing agent was in complete and exclusive control of the premises'" (Vushaj v Insignia Residential Group, Inc., 50 AD3d 393, 394 [1st Dept 2008] quoting Hakim v 65 Eighth Ave., LLC, 42 AD3d 374, 375 [1st Dept 2007]). An exception exists when there is evidence that the management agreement was so "comprehensive and exclusive, so as to entirely displace the owner's duty to maintain the premises" (Clark v Kaplan, 47 AD3d 462, 462 [1st Dept 2008]). Other exceptions are where the contracting party "'launche[s] a force or instrument of harm'...[and] where the plaintiff detrimentally relies on the continued performance of the contracting party's duties" (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 140 [2002]).