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Determining responsibility in a negligence suit can be a complicated endeavor.
AUTHORMichael P. Graff, Graff Dispute Resolution
Having a terrace or balcony is a wonderful thing, but accidents can happen. Furniture or plants can fall off, or storms can lift unsecured items and fling these onto the street. When this happens and people get injured, who is responsible?
In January 2020, just such an incident occurred. Assigning responsibility for this event takes time, with everyone’s lawyers weighing in. Meanwhile, the condo was fined $6,250 by the NYC Department of Buildings for failure to maintain the building in a code-compliant manner.
What happened. In November 2019, a California couple leased a 12th-floor duplex penthouse apartment in a condominium for one year, paying $50,000 per month. It had more than 2,000 square feet of terrace on two levels and was fully furnished, including the terrace. A few months later on a rainy and windy day in January, the plaintiff, who was 23 years old and worked for a private equity firm, was walking by the building with her boyfriend when a heavy wooden lounge chair, which was unsecured at the time, fell off the terrace and struck her in the head. She suffered severe traumatic brain injury and had to undergo multiple operations. She sued the condominium, its management company, the apartment’s owner and the owner’s two tenants, alleging that they were negligent. In lieu of an answer, the tenants, who were in Florida when the incident happened, filed a motion to dismiss the complaint on the claim that New York lacked personal jurisdiction.
The first step is to figure out who is responsible. Is it the condo owner, the tenants or the condo corporation?
In the case, Sen v. GR Realty Holdings LLC, the court discussed New York’s long-arm statute which extends New York jurisdiction to nonresidents who have engaged in some purposeful activity in New York in connection with the cause of action asserted. It specifically includes a cause of action arising from defendants’ ownership, use or possession of real property in New York. Merely leasing an apartment in New York makes it foreseeable that the tenant-lessee defendants could be hauled into New York for claims arising from the lease itself. The motion by the nonresident tenants to dismiss for lack of personal jurisdiction was denied. This decision was affirmed by the Appellate Division.
The final determination on who is responsible has not been made yet, and the case will continue in the courts.
Where a terrace or balcony is involved, the building, its unit-owners and their tenants are responsible for securing its contents or bringing it indoors during inclement weather. Even heavy furniture needs this attention, so that pedestrians below are protected from potentially tragic outcomes. It’s the law, and a common law responsibility. Nonresident renters, as well as the buildings, are bound by it.
As for this court decision, it was not a motion on the merits of the claim, and it does not mean that the tenants will be liable for the injuries suffered by the plaintiff. A jury may well determine that, if there is fault, it will be apportioned, and the greater fault may be assigned to the unit-owner, if that is who placed the chair there.