        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

200
CA 13-01404
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


BRANDON LLOYD, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

JAMES H. MOORE, AS ADMINISTRATOR OF THE ESTATE
OF LORRAINE PORTER, DECEASED, ET AL., DEFENDANTS,
AND RONALD FERNANDES, DEFENDANT-APPELLANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HEMMING & STAEHR, P.C., WILLIAMSVILLE (JONATHAN E. STAEHR OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (James H.
Dillon, J.), entered February 28, 2013. The order denied the motion
of defendant Ronald Fernandes for summary judgment dismissing the
complaint against him.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint against defendant Ronald Fernandes is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained as a result of his exposure to lead
paint in two apartments rented to his mother by defendants when he was
a child. One of the apartments was owned by defendant 487 Busti
Avenue, Limited, which in turn was owned by Ronald Fernandes
(defendant) and a nonparty, both of whom served as corporate officers.
We conclude that Supreme Court erred in denying defendant’s motion for
summary judgment dismissing the complaint against him. “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” (Peguero v
601 Realty Corp., 58 AD3d 556, 559; see MLM LLC v Karamouzis, 2 AD3d
161, 161-162; Michaels v Lispenard Holding Corp., 11 AD2d 12, 14).
Such misfeasance may include exacerbating a hazardous lead paint
condition by negligently attempting to correct it (see generally Ward
v Bianco, 16 AD3d 1155, 1156-1157). 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” (Komonaj v
Curanovic, 90 AD3d 505; see generally Alvarez v Prospect Hosp., 68
                                 -2-                           200
                                                         CA 13-01404

NY2d 320, 324). 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.




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
