Appellate Division of the Supreme Court of New York, 2007

400 East 51st Street LLC v. Fifty First Beekman Corp.

400 East 51st Street LLC v. Fifty First Beekman Corp.
Appellate Division of the Supreme Court of New York · Decided March 27, 2007
38 A.D.3d 448; 832 N.Y.S.2d 529
400 East 51st Street LLC v. Fifty First Beekman Corp.

Opinion of the Court

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 6, 2006, which, to the extent appealed from as limited by the brief, granted defendants’ motion for summary judgment insofar as it sought dismissal of plaintiffs private nuisance cause of action, unanimously affirmed, with costs.

Plaintiff building developer alleges that it was forced to suspend temporarily a construction project because, after demolition in preparation for the construction, it became apparent that defendants’ building, which adjoined the construction site, had an unstable wall. Inasmuch as there was no evidence that the existence of the complained-of defect was attributable to misfeasance or culpable nonfeasance on defendants’ part, summary judgment dismissing the private nuisance cause of action was properly granted (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 569-570 [1977]).

*449We have considered plaintiff’s other contentions and find them unavailing. Concur—Mazzarelli, J.E, Saxe, Marlow, McGuire and Kavanagh, JJ.

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