Clarke v. 6485 & 6495 Broadway Apartment Inc. — 122 A.D.3d 494

Majority

p. 494

Donna Clarke, Respondent, v 6485 & 6495 Broadway Apartment Inc. et al. Defendants, and 6485 Apartment Associates, Inc., Appellant.

[997 NYS2d 49]

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. Plaintiffs 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

p. 495

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 , 544 [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 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.

Concur — Friedman, J.E, Acosta, Saxe, Manzanet-Daniels and Gische, JJ.

Cases cited

Majid Muhammad v. Donald Bucknor 228 AD2d 333 N.Y. App. Div. 1996-06-20 p. 495