Brady v. Rudin Management Co.

McNally, J. The question presented is whether this action is one for a personal injury resulting from negligence barred by the three-year Statute of Limitations (Civ. Prac. Act, § 49, subd. 6), or one upon a liability created by statute governed by the six-year Statute of Limitations (Civ. Prac. Act, § 48, subd. 2). The complaint alleges the failure on the part of the defendant-appellant, owner of a multiple dwelling, to keep in good repair a refrigerator located in plaintiff’s apartment proximately causing personal injuries to her. Liability is grounded on subdivision 1 of section 78 of the Multiple Dwelling Law. Liability in tort with respect to lands and buildings, generally, depends on occupation and control. (Cullings v. Goetz, 256 N. Y. 287.) The plaintiff here may not rely on any common-law duty owing to her because she and not the defendant-appellant occupied and controlled the premises. The Multiple Dwelling Law alone imposes on the owner the duty to repair premises in the possession of the tenants. The common-law liability to repair of the owner of a multiple dwelling was limited to the common parts. The Multiple Dwelling Law extended the owner’s duty to repair to every part of the multiple dwelling and created liability on the part of the owner to the occupants thereof for personal injuries resulting from the failure to keep in repair the demised portions. (Altz v. Leiberson, 233 N. Y. 16.) In Schmidt v. Merchants Despatch Transp. Co. (270 N. Y. 287, 305) the test to be applied in determining whether a liability- is created by statute within the meaning of subdivision 2 of section 48 of the Civil Practice Act was stated as follows: ‘ ‘ A statute ‘ creates ’ no liability unless it discloses an intention express or implied that from disregard of a statutory command a liability for resultant damages shall arise ‘ which would not exist but for the statute.’ (Shepard v. Taylor Pub. Co., 234 N. Y. 465, 468.) The statute may in express terms give to an injured person a [82] cause of action for such damages. Difficulty arises only where the statute does not, in express terms, make any provision for such a cause of action. Then the problem is whether such a provision should be implied. ’ ’ The Schmidt case also suggests the creation of a statutory liability involves the introduction of a duty 1‘ not measured by the usual norm of what a reasonably prudent man would do under the same circumstances ” (p. 303). In Schmidt the duty imposed by the statute was one to equip machinery creating dust and impurities with an exhaust fan sufficient to remove such dust and impurities. Schmidt was an action by an employee against his employer. Implicit in the relationship of master and servant is the duty of the master to exercise reasonable care in furnishing a safe place to work, the breach of which is negligence. It was, therefore, necessary in Schmidt to demonstrate that the statute relied on established a duty other than one of reasonable care. Schmidt did not involve a relationship devoid of the common-law duty to exercise reasonable care as in the instant case of a tenant of an apartment in a multiple dwelling complaining of the failure to maintain an appliance within the apartment. The Schmidt test is met when the disregard of the statute gives rise to a liability which would not otherwise arise. Schmidt rests upon the imposition by statute of a duty other than and in addition to the duty to exercise reasonable care incident to the master and servant relationship; the statute in the instant case imposes upon the owner of a multiple dwelling the duty to maintain (a tenant’s apartment) in good repair which was not previously an incident of the relationship. In Sicolo v. Prudential Sav. Bank of Brooklyn (5 N Y 2d 254) the statute underlying the action (General Municipal Law, § 205-a) created a cause of action ‘ ‘ In addition to any other right of action or recovery under any other provision of law ’ ’ for a member of any fire department injured because of negligence in failing to comply with any ‘ ‘ statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments ’ ’. Plaintiff there relied on the violation of the New York City Administrative Code which forbids the use of combustible drapes or curtains under stated circumstances. It is to be noted that the duty imposed by section 205-a of the General Municipal Law is defined only by the omnibus reference to the requirements of 1 ‘ any ’ ’ statute and expressly includes acts of negligence. Sicolo, despite the application of the statute to acts of negligence, holds an action grounded on section 205-a is governed by the six-year limitation and not barred by the three-year limitation applicable to an action to [83] recover damages for personal injuries resulting from negligence. It would seem, therefore, that a statute creates a liability- within the meaning of subdivision 2 of section 48 although the newly created liability may be one in negligence provided only that it is a liability previously nonexistent. (See, also, Cobb v. Janoff, 27 Misc 2d 21; Moore v. Bryant, 27 Misc 2d 22.) This action is one for damages resulting from the breach of a duty nonexistent prior to the statute here involved and therefore a liability thereby created. The order striking the defense of the three-year Statute of Limitations should be affirmed, with costs to plaintiff-respondent.