No Control Equals No Liability Condo Owners and Third Party Liability

Recently, the Appellate Division, First Department—the state’s second highest court located in Manhattan—announced a decision with far-reaching implications for the state’s condominium owners. In the case Pekelnaya v. Allyn, the court ruled that individual condo owners cannot be held liable to third parties for injuries sustained as a result of a defective condition in the “common elements” of the building.

As most apartment-dwellers know, common elements are the parts of the property which are necessary or convenient to its existence, maintenance and safety, or normally in common use. Common elements include (but are not limited to) the land on which the building sits, the foundation, roof, halls, lobbies, stairs, stairways, fire escapes, entrances and exits, as well as the basements, cellars, yards, gardens, recreational or community facilities, parking areas, storage spaces and any elevators and escalators.

The Case

The case of Pekelnaya v. Allyn involved a lawsuit against a condominium association and 11 individual unit owners on 106th Street. In the suit, a father and his son claimed they suffered head injuries when they were hit by a section of chain-link fence that fell from the building’s roof. The plaintiffs’ lawyers argued that the condo board’s insurance policy covered only $2 million in damages, which they claimed was insufficient. They therefore decided to target each of the individual unit owners and their liability insurance policies too.

This case is especially important because in it, the court addressed the public policy issue of whether condo unit owners should be financially liable just because their building’s board of managers has an inadequate amount of insurance coverage. The court ruled that the condominium board in this case had obtained substantial insurance coverage, and that although the law affords a means of recovery, it need not guarantee that the defendant will have sufficient resources to provide full compensation for any and all losses sustained by an injured person.

The court also noted that the questions of whether boards should be required to carry a minimum amount of general liability insurance, and what the amount of such coverage should be are matters that the New York State Legislature must address. The court urged the legislature to require condominium associations to obtain a minimum amount of insurance deemed adequate to protect the public—although it did not state the amount.


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  • I am in the midst of selling my apartment and the Board Package unequivocally states that all tenants who buy after 2006 must install thru-the -wall air conditioners. There are no exceptions noted. However, I'm on the second floor and there is a decorative stone band below me as well is bands throughout the outside of the facade. The Board President's initial resolution was in violation of the Board Package. In order to install the requisite a/c units, according to the owner Hamilton Air Conditioning a 1" to 1 1/2" notch must be put in the band. The notch will not affect either the aesthetic nor structural integrity of the building. He sent me a proposal in which he stated that he had previously installed a 4" notch on the 4th floor to accommodate thru-the-wall a/c. The board president wants me to go against the Board package which, I understand, is a binding legal document. I have a substantial offer on my apartment and this has gone on for almost two weeks. Now it seems that I need to wait another week for the Board to meet to decide. Can the Board make changes in the Board package in the midst of a negotiation? What are my legal ramifications if they decide this can't be done and that I can demonstrate that this action is not only discriminatory but devalues my apartment? What is my recourse if I lose the offer because of the Board President's reluctance and delay in posing this to the Board? Also, am I correct in assuming that the Board Package is a binding legal document? I am concerned about my liabiliity as well as a turn down by the Board. Please do not hesitate to contact me if you have any questions or need further information. I would appreciate your response at your earliest convenience. Thankyou
  • Currently being sued by condo unit owner below me for leak coming from damage waste pipe under bathtub. Management claims that I "own" plumbing even though plumbing is located beneath sub-flooring and walls. I've read the CC&R, Amendments and Appendix. All state that HOA/management is responsible for entire piping system, domestic water piping including risers, and mains. Combined house sewer, all piping, fittings and house trap. The items are considered Common Elements. I'm I correct to argue that management is responsible for the mainteance and repairs of the waste and overflow system even though it's connected to the bottom of my bathtub?