Opinion
2014-03-28
Brandon LLOYD, Plaintiff–Respondent, v. James H. MOORE, As Administrator of the Estate of Lorraine Porter, Deceased, et al., Defendants, and Ronald Fernandes, Defendant–Appellant.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie L. Renda of Counsel), for Defendant–Appellant. Hemming & Staehr, P.C., Williamsville (Jonathan E. Staehr of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katie L. Renda of Counsel), for Defendant–Appellant.Hemming & Staehr, P.C., Williamsville (Jonathan E. Staehr of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he allegedly sustained as a result of his exposure to lead paint in two apartments rented to his mother by defendants when he was a child. One of the apartments was owned by defendant 487 Busti Avenue, Limited, which in turn was owned by Ronald Fernandes (defendant) and a nonparty, both of whom served as corporate officers. We conclude that Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint against him. “The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, i.e., an affirmative tortious act; personal liability cannot be imposed on a corporate officer for nonfeasance, i.e., a failure to act” ( Peguero v. 601 Realty Corp., 58 A.D.3d 556, 559, 873 N.Y.S.2d 17;see MLM LLC v. Karamouzis, 2 A.D.3d 161, 161–162, 767 N.Y.S.2d 620;Michaels v. Lispenard Holding Corp., 11 A.D.2d 12, 14, 201 N.Y.S.2d 611). Such misfeasance may include exacerbating a hazardous lead paint condition by negligently attempting to correct it ( see generally Ward v. Bianco, 16 A.D.3d 1155, 1156–1157, 792 N.Y.S.2d 749). Here, defendant met his initial burden by presenting “evidence that, if uncontroverted, would have established that [he] did not personally participate in malfeasance or misfeasance constituting an affirmative tortious act” ( Komonaj v. Curanovic, 90 A.D.3d 505, 934 N.Y.S.2d 304;see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Plaintiff failed to raise an issue of fact in response, inasmuch as he submitted no evidence that defendant affirmatively created the dangerous lead condition at the property or did anything to make it worse; at most, defendant merely failed to remedy the condition. We thus conclude that he cannot be held individually liable to plaintiff in this action.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant Ronald Fernandes is dismissed.