Thursday, February 17, 2011

Managing Agent Exposed to Potential Liability For Lead Paint Condition

In Ortiz v. Gun Hill Mgt., Inc., the First Department affirmed a finding of questions of fact with respect to the scope and extent of a managing agent's control over the property, which if "complete and exclusive" could render the agent liable for failing to abate a lead-based paint condition that allegedly injured the infant plaintiff. More specifically, the Court found that contract language giving the agent "complete and unfettered authority to undertake all repairs costing less than" $2,000, as well as the repair of any condition it deemed an emergency, could give rise to a finding of control.

The Court also found that issues of fact existed as to whether the agent could be held liable to plaintiffs for its alleged affirmative acts of negligence (again, assuming a finding of exclusive control). The Court observed that the agent purportedly failed to timely or adequately remedy the condition despite plaintiff's repeated complaints for several years. In addition, the agent did not move the infant plaintiff into another apartment until two months after the Department of Health and Mental Hygiene had found 10 lead-based paint violations.

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