HUTCHERSON v. HILL (2018)

Orders, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about December 18, 2015, and June 21, 2017, which granted defendant Velma Hill's decedent's motion for summary judgment dismissing the complaint and cross claims as against him, and defendant Mutual Redevelopment Houses, Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, with costs.

The decedent (Glaberman), who died after his motion was decided, established prima facie that he did not cause a nuisance to plaintiff, his upstairs neighbor in a cooperative apartment building (see Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977];  Brown v. Blennerhasset Corp., 113 A.D.3d 454, 979 N.Y.S.2d 27 [1st Dept. 2014];  Carroll v. Radoniqi, 105 A.D.3d 493, 963 N.Y.S.2d 97 [1st Dept. 2013] ).  The record contains evidence of only two discrete periods of intermittent noise.  Glaberman said in an affidavit that he was an 86–year–old man whose health issues throughout the period in which plaintiff claimed he made loud noises rendered it impossible for him to “physically achieve making those noises, even if I wanted.”  Glaberman submitted evidence that he was in the hospital on occasions reflected on the logs that plaintiff created purporting to document the alleged noise.  In addition, plaintiff did not appeal from a prior order in this case finding, after a hearing held before Glaberman's death, that Glaberman was too frail to drag or carry furniture, as the complaint alleges.  In opposition to Glaberman's showing, plaintiff failed to raise an issue of fact.

In view of the foregoing, the complaint must be dismissed as against Mutual because all the claims asserted against it are premised upon Glaberman's alleged conduct.