KEO v. KIMBALL BROOKLANDS CORP

As managing agent of the apartment complex in which plaintiff Vesna Keo was injured in an incinerator explosion, defendant DiConstanzo (defendant) could be subject to liability for nonfeasance only if he were in complete and exclusive control of the management and operation of the building (Jones v. Park Realty, 168 A.D.2d 945 [appeal No. 2], affd for reasons stated 79 N.Y.2d 795; Gardner v. 1111 Corp., 286 App. Div. 110, 112, affd 1 N.Y.2d 758). The evidence submitted by respondent sufficiently demonstrated his lack of such control, thereby shifting the burden to plaintiffs to lay bare their proof to the contrary, a burden plaintiffs failed to meet.

Concur — Sullivan, J.P., Wallach, Kupferman and Kassal, JJ.