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BECAUSE INDIVIDUAL CONDOMINIUM OWNERS ARE RESPONSIBLE FOR THE INSTALLATION OF WINDOW GUARDS, THE DEFENDANT CONDOMINIUM DID NOT HAVE A DUTY TO INSTALL WINDOW GUARDS; THEREFORE THE CONDOMINIUM COULD NOT BE LIABLE FOR PLAINTIFFS’ DAUGHTER’S FALL FROM THE WINDOW UNDER THE FAILURE-TO-INSTALL THEORY; HOWEVER, THE CAUSE OF ACTION BASED UPON THE CONDOMINIUM’S FAILURE TO GIVE PLAINTIFFS NOTICE OF THE CITY’S WINDOW-GUARD REQUIREMENT SURVIVED THE DISMISSAL MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligence cause of action against the condominium (Cherry Tower) premised on the failure to install window guards should have been granted. Plaintiffs’ five-year-old daughter fell from the fifth floor window and died. Defendants submitted the deed to the condominium in support of their motion to dismiss. Because plaintiffs owned the condo unit, the defendants had no duty to install window guards. However, the cause of action alleging defendants’ failure to give notice of the window-guard requirements in the NYC Administrative Code properly survived dismissal:

“The characteristics of condominium ownership are individual ownership of a unit, an undivided interest in designated common elements, and an agreement among unit owners regulating the administration and maintenance of property” … . Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the documentary evidence submitted by the Cherry Tower defendants, including the deed demonstrating that the unit owners purchased the subject apartment in 2007 and the condominium bylaws placing the responsibility to install and maintain window guards on the unit owners, conclusively demonstrates that the Cherry Tower defendants had no duty to install window guards in the subject apartment (see Administrative Code of City of NY § 27-2043.1[a]; Real Property Law § 339-ee[1] …).

However, the Supreme Court properly denied that branch of the Cherry Tower defendants’ motion which was to dismiss so much of the complaint as was based on their failure to provide the plaintiff with notice of the window guard requirements. Accepting the allegations in the complaint as true and giving the plaintiff the benefit of every favorable inference, the complaint sufficiently alleges that the Cherry Tower defendants failed in their responsibility to deliver the required notice to the subject apartment (see Administrative Code § 17-123[b]). Kwan v Kuie Chin Yap, 2023 NY Slip Op 05005, Second Dept 10-4-23

Practice Point: The individual owners of condominium units are responsible for the installation of window guards. Therefore the condominium itself has no duty to do so. However, in New York City, the condominium must provided the individual owners with notice of the window-guard requirement in the NYC Administrative Code.

 

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