LEON v. 327 (2019)

Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered August 28, 2018, which, to the extent appealed from, denied plaintiff's motion for summary judgment dismissing defendant Wyatt Harlan's counterclaim for nuisance, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff made a prima facie showing that her piano playing and piano lessons were reasonable by averring that these activities usually occurred during business hours on weekdays, they usually totaled less than 41/212 hours a day, and her sound technician concluded that the noise emanating from her piano was within acceptable boundaries (Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 A.D.3d 38, 41, 933 N.Y.S.2d 204 [1st Dept. 2011]; see Carroll v. Radoniqi, 105 A.D.3d 493, 494, 963 N.Y.S.2d 97 [1st Dept. 2013]). Harlan failed to raise a triable issue of fact in opposition because she did not submit any evidence showing that the level of sound that entered her apartment from plaintiff's piano was unreasonable. Harlan's reliance on the recordings by plaintiff's sound technician is unavailing; the expert did not take any volume measurements in Harlan's apartment and the recording taken in the condominium stairwell did not exceed that of a normal conversation.

To the extent the motion court denied plaintiff's motion on the ground that discovery was not complete, the record reveals that no additional discovery could be conducted regarding the level of sound that entered Harlan's apartment because plaintiff had moved out of the condominium building with her piano.

Based on the foregoing, we need not reach plaintiff's other arguments.