Leger v Westbeth Hous. Corp. HFDC

[*1] Leger v Westbeth Hous. Corp. HFDC 2020 NY Slip Op 51528(U) Decided on December 18, 2020 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Cooper, J.P., Higgitt, McShan, JJ.
570169/20

Jacqueline Leger, Plaintiff-Appellant,

against

Westbeth Housing Corp. HFDC, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Judy Kim, J.), entered January 7, 2020, which granted defendant's motion to dismiss the action at the close of plaintiff's case.

Per Curiam.

Order (Judy Kim, J.), entered January 7, 2020, affirmed, without costs.

The trial court correctly dismissed the action at the close of plaintiff's case. Even affording plaintiff-tenant every favorable inference that reasonably could be drawn from the evidence adduced at trial (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we agree that she failed to establish a prima facie case against defendant-landlord for breach of the lease or breach of the warranty of habitability (see Real Property Law § 235-b) based upon alleged "abuse by a noise apparatus [for] over five years as a harassment tool orchestrated by defendant." Plaintiff failed to adduce legally sufficient evidence of any type of "noise apparatus" or ultrasound device was, as plaintiff asserted, beneath the floorboards, within the insulated ceiling or elsewhere, or that defendant landlord caused or failed to remedy the condition, after notice. Nor did plaintiff present any expert testimony that the decibel level was excessive (see Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, 328 [1979], cert denied 444 US 992 [1979]).

Plaintiff's remaining claims either did not set forth a cognizable cause of action or the evidence did not permit the trial court, as a rational factfinder, to conclude that a prima facie case was established on those claims.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 18, 2020