Q. Does the co-op have any liability for a live-in super doing work for shareholders that is deemed the individual shareholder’s responsibility and paid for by that shareholder?
A. David L. Berkey, an attorney with Gallet Dreyer & Berkey LLP in New York City, says: “The cooperative may have liability if (a) the work is defectively performed and leads to damage in the requesting shareholder’s apartment, in another apartment, or in common areas; (b) the super is injured when performing the work for the requesting shareholder and claims that the cooperative was a joint employer of the super, or (c) the requesting shareholder later attempts to get reimbursement for the cost of the work performed. For those reasons, many cooperatives do not permit their supers or staff to perform work that is the shareholder’s responsibility.
“If a cooperative board determines that it will allow its staff to perform work that is the responsibility of the shareholder in a requesting shareholder’s apartment, then to minimize the potential liability, the cooperative should require that the requesting shareholder sign a work order request in which the shareholder acknowledges (i) that the work is the responsibility of the shareholder to perform and will be paid for solely by the shareholder and not by the cooperative; (ii) that the shareholder will be responsible for all damage arising from or related to such work and will hold the cooperative harmless against and indemnify the cooperative for all costs, liabilities, judgments and expenses, of every type and nature, including reasonable attorneys’ fees and expenses, that it may incur due to any claims made or arising out of or related to the work; (iii) that the work will be performed solely during periods of time that are not a part of the employee’s regular work day; (iv) that the employee will solely be employed by the shareholder to perform the work and will not be employed by the cooperative with respect to the work; (v) that the cooperative will not have any supervision or control of the employee with respect to the work being performed; and (vi) that the shareholder will be solely responsible for any injury to the employee that may occur arising from or related to the work.”