This case involved a dispute between the owners of a penthouse condominium unit (Owners) and their Associations Board of Managers (Board), and the Associations managing agent (Manager), who was under contract with the Association to manage the day-to-day operations of the Association and keep the common elements of the building in good repair. The dispute stemmed from ongoing claims by Owners, which arose shortly after purchasing their unit, that they were experiencing excessive and unreasonable noises, vibrations, and offensive cooking odors in their unit. Owners also complained that shortly after they moved in, they learned of water that was leaking from the roof into their unit and were waiting for a HOA manager court case ruling.

Owners alleged that they made repeated requests to both the Board and Manager to get the conditions repaired, which were met with unsuccessful half-hearted efforts to correct the issues relating to the noise, vibrations and water leak, and that the Board and HOA Manager court case ruling made no efforts to address the cause of the offensive odors permeating into Owners unit. Accordingly, Owners filed a lawsuit against the Board, and Manager, in which Owners alleged claims for: (i) nuisance; (ii) breach of contract; (iii) breach of fiduciary duty; and (iv) negligence. In response, the defendants sought to have portions of the claims dismissed.

In their efforts to get the case dismissed, Board and Manager contended that there could be no liability for nuisance caused by offensive cooking odors or the roof leaks. The court ruled that Owners complaint sufficiently alleged that the cooking odors entering their unit were direct, frequent and potent and, as such, they could create an actionable nuisance. The court further ruled that the intrusion of water leaks into Owners unit could constitute a nuisance and trespass.

Manager also argued that the claims against it were improper because it was merely an agent acting solely on behalf of its disclosed principal and, as such, it could not be held liable to third parties, such as Owners for acts of nonfeasance, as opposed to affirmative acts of negligence or other wrong. The court agreed with Manager in ruling that, Unless the agent has assumed authority and responsibility, as if he were acting on his own account, then the duty which Manager fails to perform is a duty owing only to his principal and not to the third party to whom he has assumed no obligation.

Because Owners could not show that Manager owed them an independent duty, or that Manager was affirmatively negligent in its conduct toward Owners, the duties that were alleged to have been breached by Manager were as a result of nonfeasance, and because Manager had not assumed authority and responsibility and was merely acting on behalf of Board, Manager could have no liability to Owners for its nonfeasance.

Supreme Court of the State of New York, County of New York, decision (March 8, 2019).

See case decision: Abrams_v._Bd._of_Managers_of_25_Beekman_Place_Condo.