Strauss v. Original Consumers Oil Heating Corp.

(dissenting). Accepting the plaintiffs’ version of the accident, including the fact that the obvious and extensive oil leakage from a defective oil tank existed for many years and created a dangerous condition on the boiler room floor, plaintiffs’ proof is insufficient to establish that the defendant managing agent had the authority to make this repair or that the owner, who had knowledge of the condition, authorized any repairs to correct the condition. There was no written management agreement and the only evidence presented indicated that there was a monetary limitation on the managing agent’s authority to make repairs without the owner’s consent.

The plaintiffs must establish that the defendant had complete and exclusive control of the management and control of the building which included the authority to make this repair in order to hold it liable (Hagen v Gilman Mgt. Corp., 4 AD3d 330, 331 [2d Dept 2004]). This they failed to do. Plaintiffs offered no evidence as to the cost of the repairs or the monetary limits of the managing agent’s authority to make the repairs without prior approval of the owner. The only testimony as to the cost of repairs was from the managing agent’s witness who stated that *60it was between $5,000-$20,000, which was clearly beyond his limited authority. He testified that “I would think anything over two thousand dollars I would discuss” and that he had previous authorized expenditures under $2,000 without prior authorization from the owner. This fact distinguishes Tushaj v Elm Mgt. Assoc. (293 AD2d 44 [1st Dept 2002]) where the cost of the repair was $12. Any theory of liability that the placing of the duck board exacerbated the dangerous condition was not submitted to the jury.

Furthermore, since the plaintiff slipped on the same condition he was correcting, he cannot recover (Polgano v New York City Educ. Constr. Fund, 6 AD3d 222 [1st Dept 2004]; Marku v Moore Capital Mgt., 7 AD3d 443 [1st Dept 2004]).

The judgment should be reversed and the complaint dismissed.

Davis and Gangel-Jacob, JJ., concur; McCooe, J.E, dissents in a separate memorandum.

OPINION OF THE COURT

Judgment entered December 15, 2003 affirmed, with $25 costs.

Plaintiff, the superintendent of a commercial building, was employed by the building owner, Westchester Town Associates, who was not a party to this lawsuit. The owner’s managing agent, defendant Woodmere Custom Developers, “overs[aw] construction and management, including collecting rents, paying bills, making sure the building was functioning properly” and directing “general repairs.” The evidence properly admitted at trial (see CPLR 311.7 [a]) demonstrated that Philip Broad-man, Woodmere’s principal, had for many years been aware of a “very obvious,” progressively worsening leaking oil condition from a defective oil tank which repeatedly resulted in the collection and pooling of oil until it “covered” the entire boiler room floor at depths approaching four inches. Broadman directed the installation of “duck boards” on the floor, which plaintiff would lift and stack when sweeping the leaking oil into a draining pit. Plaintiff was injured as a result of a slip and fall while lifting the boards, which had become “vacuum stuck” to the basement floor. At the bifurcated trial, the jury found that defendant was 65% responsible and plaintiff was 35% responsible.

Based on this record, the jury reasonably could find that plaintiffs safety was within the scope of defendant’s contractual obligations to the property owner and the injuries suffered, were the result of defendant’s failure to fulfill those obligations (see Tushaj v Elm Mgt. Assoc., 293 AD2d 44 [2002]). Defendant had a contractual obligation to inspect the property and to ensure that the building was maintained in good repair, including the broad authority to undertake necessary repairs. Although Broadman was not “required” to do so, he “thought” he would discuss repairs costing in excess of $2,000 with the owner, but *59conceded that “there was no set limit” on cost (see Stevanovic v T.U.C. Mgt. Co., 305 AD2d 133 [2003]). The record shows that although Broadman had actual notice of the dangerous condition, he failed to conduct any inquiry regarding the cause of the leak or the cost to repair the oil tank and did nothing to fix it (see Tushaj v Elm Mgt. Assoc., supra). Nor may defendant avoid liability for its demonstrated negligence by invoking case authority holding that “[a] maintenance worker has no claim at law for injuries suffered from slipping on a substance that she was hired to remove” (Marku v Moore Capital Mgt., 7 AD3d 443, 444 [2004]; see also Kowalsky v Cenreco Co., 264 NY 125, 128 [1934]), since the evidence supports a finding that the accident was caused not only by the presence of the oil puddle that plaintiff was assigned to “sweep up,” but also by plaintiffs precarious positioning on the wooden planks that Broadman directed to be placed over the oil spills as a dubious stopgap measure in response to the ongoing and unaddressed .oil burner leak (see generally Wray v 654 Madison Ave. Assoc., L.P., 253 AD2d 394 [1998]).

Finally, the issue of whether plaintiff was a special employee of defendant was properly submitted to and reasonably resolved by the jury (see Tushaj v Elm Mgt. Assoc., supra).