Corporate Officer Not Liable in Lead Paint Exposure Case Under “Commission of a Tort” Doctrine for Nonfeasance/No Evidence of Malfeasance or Misfeasance

The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead paint exposure case. The court explained when the “commission of a tort” doctrine applies to corporate officers:

“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” … . Such misfeasance may include exacerbating a hazardous lead paint condition by negligently attempting to correct it … . 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” … . 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. Lloyd v Moore…, 200, 4th Dept 3-28-14