Clarke v 6485 & 6495 Broadway Apt., Inc.

Clarke v 6485 & 6495 Broadway Apt., Inc. 2017 NY Slip Op 03452 Decided on May 2, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 2, 2017
Friedman, J.P., Sweeny, Moskowitz, Gische, Kapnick, JJ.
3636 301746/13

[*1]Donna Clarke, Plaintiff-Respondent,

v

6485 & 6495 Broadway Apartment, Inc., et al. Defendants, 6485 Apartment Associates, Inc., Defendant-Appellant.

Lehrman, Lehrman & Guterman, LLP, White Plains (Mark A. Guterman of counsel), for appellant.

Nicholas M. Moccia, Staten Island, for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 23, 2016, which denied defendant 6485 Apartment Associates, Inc.'s (defendant) motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant, the proprietary lessee of the cooperative unit above plaintiff's, established prima facie that it was not liable for the alleged nuisance to plaintiff caused by excessive noise emanating from that unit by demonstrating, through the sublease between itself and its subtenant, that it had relinquished possession and control of the unit (see Clark v 6485 & 6495 Broadway Apt. Inc., 122 AD3d 494 [1st Dept 2014]; see also Taggart v Costabile, 131 AD3d 243, 247 [2d Dept 2015]). In opposition, plaintiff failed to raise an issue of fact.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 2, 2017

CLERK