Summary
affirming a cause of action by a plaintiff-tenant that "adequately alleges that [defendant-landlord] deprived plaintiff of her right to quietly enjoy her apartment by failing to take effective steps to abate allegedly excessive noise emanating from the neighboring apartment"
Summary of this case from Zarate v. A&E Tiebout Realty LLCOpinion
2014-01-14
Laura BROWN, Plaintiff–Appellant–Respondent, v. The BLENNERHASSET CORPORATION, Defendant–Appellant. Paul Tayoun, et al., Defendants–Respondents.
Braverman Greenspun, P.C., New York (Tracy Peterson of counsel), for appellant. Gleason & Koatz, LLP, New York (John P. Gleason of counsel), for appellant-respondent.
Braverman Greenspun, P.C., New York (Tracy Peterson of counsel), for appellant. Gleason & Koatz, LLP, New York (John P. Gleason of counsel), for appellant-respondent.
Jones Morrison, LLP, Scarsdale (Daniel W. Morrison of counsel), for respondents.
SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, FEINMAN, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 17, 2012, which, inter alia, granted defendants Paul Tayoun and Sherry Tayoun's motion for summary judgment dismissing the claim for private nuisance as against them, and granted plaintiff's cross motion for leave to serve an amended complaint to the extent of allowing plaintiff to assert a claim for breach of the warranty of habitability against defendant The Blennerhasset Corporation, unanimously affirmed, without costs.
Supreme Court properly granted the Tayoun defendants' motion. Even when viewing the evidence in a light most favorable to plaintiff, her own expert opined that the Tayoun defendants' heavy walking “is not going to be stopped by a simple carpet or pad” because such frequencies “penetrate right through a carpet and pad,” and are attributable to the structure of the building itself ( see Rimany v. Town of Dover, 72 A.D.3d 924, 925, 904 N.Y.S.2d 426 [2d Dept.2010], lv. denied15 N.Y.3d 705, 907 N.Y.S.2d 753, 934 N.E.2d 322 [2010] ).
Contrary to plaintiff's argument, Supreme Court did not draw an arbitrary distinction between mechanical noise and noise made by people, but properly found, as a matter of law, that the Tayouns' conduct, which allegedly caused plaintiff's interference, was, as a matter of law, not substantial or unreasonable because it was premised upon noises that are incidental to normal occupancy, including heavy footsteps, snoring, and using a dishwasher ( see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 569, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977]; Levine v. Macy & Co., 20 A.D.2d 761, 247 N.Y.S.2d 486 [1st Dept.1964]; Waters v. McNearney, 8 A.D.2d 13, 17, 185 N.Y.S.2d 29 [3d Dept.1959], affd.8 N.Y.2d 808, 202 N.Y.S.2d 24, 168 N.E.2d 255 [1960] ).
Supreme Court providently exercised its discretion in granting plaintiff's cross motion allowing her to serve an amended complaint insofar as it asserted a claim for breach of the implied warranty of habitability against The Blennerhasset Corporation (Real Property Law § 235–b). The proposed amended complaint adequately alleges that Blennerhasset deprived plaintiff of her right to quietly enjoy her apartment by failing to take effective steps to abate allegedly excessive noise emanating from the neighboring Tayoun defendants' apartment ( see Armstrong v. Archives L.L.C., 46 A.D.3d 465, 847 N.Y.S.2d 583 [1st Dept.2007]; Matter of Nostrand Gardens Co–Op v. Howard, 221 A.D.2d 637, 638, 634 N.Y.S.2d 505 [2d Dept.1995] ). Further, because that claim is premised upon the very same subject matter alleged by the original complaint, Blennerhasset will not suffer any prejudice ( see McGhee v. Odell, 96 A.D.3d 449, 450–451, 946 N.Y.S.2d 134 [1st Dept.2012]; Valdes v. Marbrose Realty, 289 A.D.2d 28, 29, 734 N.Y.S.2d 24 [1st Dept.2001] ).
We have considered the parties' remaining contentions, and find them unavailing.