400 E. 51st St. LLC v Fifty First Beekman Corp.

400 E. 51st St. LLC v Fifty First Beekman Corp. 2007 NY Slip Op 02617 [38 AD3d 448] March 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

400 East 51st Street LLC, Appellant,
v
Fifty First Beekman Corp. et al., Respondents, et al., Defendants. (And Other Actions.)

—[*1] Moses & Singer LLP, New York (Jay R. Fialkoff of counsel), for appellant.

Wachtel & Masyr, LLP, New York (Evan S. Weintraub of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 6, 2006, which, to the extent appealed from as limited by the brief, granted defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's private nuisance cause of action, unanimously affirmed, with costs.

Plaintiff building developer alleges that it was forced to suspend temporarily a construction project because, after demolition in preparation for the construction, it became apparent that defendants' building, which adjoined the construction site, had an unstable wall. Inasmuch as there was no evidence that the existence of the complained-of defect was attributable to misfeasance or culpable nonfeasance on defendants' part, summary judgment dismissing the private nuisance cause of action was properly granted (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 569-570 [1977]).

We have considered plaintiff's other contentions and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Marlow, McGuire and Kavanagh, JJ.