## Facts

- Aba Taratuta and his adult son, Michael Taratuta, were walking on a Manhattan sidewalk adjacent to the Park 106 Condominium when a section of chain-link fence fell from the roof and struck them.
- The fence was part of a rooftop security barrier along the parapet wall intended to prevent access from adjoining buildings.
- The fence had been installed before the property’s conversion to a condominium and before the unit owners acquired their interests in the common elements.
- Michael suffered catastrophic injuries, including traumatic brain injury and skull fractures, leaving him severely and permanently disabled; Aba suffered head trauma and vertebral fractures.
- Plaintiffs first sued the condominium board of managers, alleging responsibility for maintenance of common elements, including the roof and fence.
- Believing damages would exceed the board’s $2 million insurance coverage, plaintiffs brought a separate action against the individual unit owners of the condominium.
- Plaintiffs relied in part on res ipsa loquitur and argued that the unit owners’ proportionate interests in the common elements made them liable as “owners,” including under the Multiple Dwelling Law.

## Issues

1. Whether individual condominium unit owners may be held liable in tort for injuries caused by an allegedly defective common element when they lack control over that common element.
2. Whether the Multiple Dwelling Law or any other statute provides a basis to impose “owner” liability on unit owners solely because they hold proportionate interests in common elements.
3. Whether res ipsa loquitur can support liability against unit owners where the instrumentality causing injury was not within their control.

## Decision

- The Appellate Division, First Department reversed the order denying the unit owners’ motions to dismiss.
- The complaint against the individual unit owners was dismissed.
- The court held that, absent a statutory basis, control—not mere undivided ownership interest in common elements—governs tort liability for a defective condition in a condominium common element.
- Because the unit owners lacked control over the roof and the fence, they could not be held liable for the injuries.

## Legal Principles

- Premises-liability duty for defective conditions generally turns on ownership, occupancy, or control; where control is missing, liability is not imposed.
- In condominium settings, responsibility for maintenance and repair of common elements is typically allocated to the board of managers; individual unit owners are not personally liable for common-element defects absent control.
- The Condominium Act’s silence on common-element tort liability, combined with the absence of an explicit statutory directive, supports applying common-law control principles rather than imposing liability based on fractional title.
- Res ipsa loquitur does not eliminate the need to show the defendant’s control (or responsibility) over the instrumentality that caused the injury.

## Conclusion

The court dismissed tort claims against individual condominium unit owners for injuries caused by a falling rooftop fence because the owners lacked control over the common element and no statute imposed liability on them merely due to their proportionate ownership interests; the proper focus for duty was the entity responsible for maintaining and controlling the common elements.


Pekelnaya v. Allyn, 25 A.D.3d 111, 808 N.Y.S.2d 590 (1st Dep’t 2005)