Trouble After Hours

It is always tempting for a resident of a co-op or condo to hire one of the staff when a minor repair needs to be made. In most cases, the staff member will be cheaper, since they are doing the work on their off hours. But that poses risks for boards, since they might be blamed if something goes wrong. A recent case, Spirollari v. Breukelen Owners Corp. and SMRC Mgmt LLC, illustrates the hazards. 

The Dispute Details

Jorgo Spirollari alleged that while doing some carpentry work in an apartment at The Breukelen 57, a co-op at 57 Montague St. in Brooklyn Heights, he suffered an eye injury while using a table saw. The apartment owner had asked Blerim Xeneili, a handyman at the co-op, to do the work, and he in turn hired Spirollari. Spirollari had never worked in the building before and had spoken to no one else in the building. He was told by the handyman that he would be working on the molding and kitchen cabinets and that the materials and the table saw were there for his use. Spirollari asked if there were goggles and was told there were none. He went ahead and used the table saw, which resulted in the eye injury.

Spirollari brought a negligence action against the co-op and its management company, SMRC Management, claiming that he had been hired and supervised by the handyman, who was an employee of the co-op and that all employees were supervised by the managing agent. He included in his action a claim under Labor Law Sec. 200, which states that liability may be found if a construction site is dangerous or unsafe, or if the defendant exercised supervision and control over the work and injuries arose from the manner in which it was performed. The plaintiff also asserted a claim based upon a violation of another law that requires furnishing eye protection to employees who are engaged in any operation that might endanger the eyes. Spirollari then made a pretrial motion for summary judgment on all of his claims.

In Court

The co-op and its management company also both moved for summary judgment and a dismissal of the complaint, claiming that neither one of them directed or controlled the plaintiff’s work. Specifically, the defendants contended that Spirollari was hired by Xeneili and not them. According to the testimony of the superintendent, the handyman had no authority to hire anyone to work in the building. The defendants claimed to have no knowledge of Xeneili’s activity and that he was not working on their behalf or at their direction but was engaged in a side job for the apartment owner. 

The court held that since Spirollari was injured when he should have been wearing goggles, the very nature of the injury established that the violation of the law was a proximate cause of the accident, and awarded judgment to the plaintiff on this one claim. However, the court held that a trial would be necessary to determine who would be responsible. 

The court refused to grant summary judgment to either the plaintiff or defendants. Spirollari contended that the management and the co-op supervised the superintendent, who supervised the handyman, who oversaw the plaintiff’s work. But the pretrial discovery did not prove this. Other than the plaintiff’s testimony that he communicated only with the handyman, there were no statements made by anyone else who was present on the day of the accident. Likewise, the court held that the defendants failed to prove that they did not have “authority and control” over the work. In essence, the court felt that a trial was required to determine all of the facts in this case and precisely what relationship existed between the defendants, the superintendent, the handyman and the plaintiff. 

The Lesson for Boards

An issue that is very common in co-ops and condos is the use of the handymen and other staff after hours by the shareholders and unit-owners. This litigation illustrates the danger when boards allow that. If there is an injury, might the board be held responsible? If there is damage caused during the job, who might be responsible? Is the super or the board still somehow supervising the work, even though they are not in the room? These are questions that one does not want to have to answer when disaster strikes. 

If a board allows its employees to work for residents after hours, a policy should be put in place and a waiver of liability signed by the shareholder or unit-owner, freeing the board from any responsibility. The resident should be made aware that the co-op or condo and its management are not responsible if anything goes wrong and that the burden of risk is shifted to the resident. Insurance issues should be reviewed by the board. And consultation with counsel is essential to make sure the board does not ignore or mishandle a very serious and sensitive issue.

Attorneys:

For Spirollari: Lipsig, Shapey, Manus & Moverman

For Breukelen Owners Corp. and SMRC: Brody, O’Connor & O’Connor

Andrew P. Brucker is a partner at the law firm Armstrong Teasdale. The statements and views in this article are his own and not necessarily those of the firm.