Opinion
Index No. 150388/10
12-09-2011
OUALID HAMMAMI and AMY LYNE, Plaintiffs, v. K & T REALTY ASSOCIATES, LLC and COOPER SQUARE REALTY, INC., Defendants.
, J.:
In this action for, among other things, the recovery for damage to property stemming from a bed bug infestation in plaintiffs' apartment, defendant Cooper Square Realty, Inc. (Cooper) moves, pursuant to CPLR 3211 (a) (7), to dismiss the complaint as to it.
Plaintiffs Oualid Hammami and Amy Lyne were tenants in an apartment located at 314 East 9th Street, New York, New York (premises). Defendant K & T Realty Associates, LLC (KST) was the owner of the premises, while Cooper claims to have been the managing agent of the premises, as a disclosed agent of the its principal, K&T.
Plaintiffs claim that the premises became infested with bed bugs and, despite attempts to eradicate the situation by calling in exterminators, the situation was not alleviated, and plaintiffs were compelled to vacate the premises as uninhabitable. Cooper does not deny these facts, but, instead. argues that, as manager of the premises, whose disclosed contract extended only to the owner, KST, it cannot be held liable for any damages plaintiffs might seek arising from problems in their apartment.
On a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory.Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 (2001); see also Leon v Martinez, 84 NY2d 83 (1994).
A managing agent of a disclosed principal owner of property will ordinarily not be liable for damages to a tenant for damage to that property. See Paganuzzi v Primrose Management Co., 268 AD2d 213 (1st Dept 2000). The managing agent will bear no responsibility unless it is shown that it has "complete and exclusive control of the demised space." Howard v Alexandra Restaurant, 84 AD3d 498, 499 (1st Dept 2011); see also Mangual v U.S.A. Realty Corp., 63 AD3d 493 (1st Dept 2009).
In support of its motion, Cooper provides a Building Registration Summary Report showing it to be KST's managing agent (Not. of Mot., Ex. C), and a memorandum posted for tenants in the building, concerning extermination efforts, which identifies Cooper "as Agents for KST Realty LLC." Not. of Mot., Ex. D. In reply to plaintiffs' opposition, Cooper supplies the managing agreement between it and KST, which evidences the agency relationship between these parties. Reply, Ex. A.
Plaintiffs are correct that the Building Registration Summary Report provided by Cooper does not show that Cooper was the managing agent of the premises at the time plaintiffs sustained their damages, as it is dated 2011.
However, plaintiffs offer no facts to show that Cooper was anything other than K&T's managing agent. Plaintiffs' main argument is that, because Cooper appeared to be in complete control of the extermination project, based on numerous memoranda posted to provide tenants with information concerning the extermination process (which do not identify Cooper as K&T's agent), it can be said that Cooper had "complete and exclusive control of the demised space." Howard v Alexandra Restaurant, 84 AD3d at 499. Plaintiffs also point to the identification on the Building Registration Summary (however immaterial) of Kimmarie Mealer (Mealer) as both head officer of K&T, and managing agent of Cooper. Plaintiffs provide the affidavit of plaintiff Amy Lyne (Lyne), who asserts that she dealt with Mealor as property manager of the building. Lyne also offers her opinion that it was always Cooper that provided for the repair and maintenance of the building.
Plaintiffs have offered nothing but conclusory allegations that Cooper might be connected with K&T in such a manner as to be in complete control of the building. It is no proof to show that a managing agent manages the property, as plaintiffs attempt to do, as that is the purpose of a managing property agent. Any double role that Mealer might occupy does not affect the situation, despite plaintiffs' speculation that discovery might show something helpful to its case. As such, plaintiffs have failed to show that Cooper had "complete and exclusive control of the demised space," or was anything other than managing agent for K&T.
Accordingly, it is
ORDERED that defendant Cooper Square Realty Inc.'s motion to dismiss the complaint as to it is granted; and it is further
ORDERED that all claims asserted against defendant Cooper Square Realty are severed and dismissed, and the complaint is dismissed with costs and disbursements to this defendant as taxed by the Clerk of the Court upon presentation of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
ENTER:
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J.S.C.