Clarke v 6485 & 6495 Broadway Apt. Inc.

Clarke v 6485 & 6495 Broadway Apt. Inc. 2014 NY Slip Op 07961 Decided on November 18, 2014 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 November 18, 2014
Friedman, J.P., Acosta, Saxe, Manzanet-Daniels, Gische, JJ.
13530 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.

Law Office of Nicholas M. Moccia, P.C., Staten Island (Nicholas M. Moccia of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about June 4, 2013, which, to the extent appealed from, denied defendant-appellant 6485 Apartment Associates, Inc.'s (Associates) motion for summary judgment dismissing the nuisance cause of action as against it, unanimously affirmed, with costs.

Plaintiff, who lives in a cooperative apartment, alleges that Associates, which owns shares of the apartment above her, rented an apartment to an individual who caused a continuous noise nuisance for a period of six months, and took no steps to abate the nuisance despite her repeated complaints about the condition caused by the apartment's occupants. Plaintiff's letters to Associates complained that it had previously rented other apartments to the same tenant, resulting in noise complaints by other residents of the building. As a rule, a cause of action for nuisance does not lie against a landlord who "did not create the nuisance" and who has "surrendered control of the premises" to a tenant (Bernard v 345 E. 73rd Owners Corp. , 181 AD2d 543 [1st Dept 1992]; cf. Muhammad v Bucknor , 228 AD2d 333 [1st Dept 1996]). However, Associates failed to make a prima facie showing of entitlement to summary judgment since it submitted only a conclusory affidavit stating that it was not responsible for its tenant's [*2]conduct, without submitting a copy of any lease or even identifying the tenant. It thus failed to establish either that it did not knowingly create the nuisance or that it had surrendered control of the premises to that individual.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 18, 2014

CLERK