| Harrison v New York City Hous. Auth. |
| 2019 NY Slip Op 05474 |
| Decided on July 9, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on July 9, 2019
Renwick, J.P., Gische, Kapnick, Singh, JJ.
9812A 114244/09 9812
v
New York City Housing Authority, Defendant-Appellant-Respondent, "John Doe," et al., Defendants.
Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for appellant-respondent.
Order, Supreme Court, New York County (Lucy Billings, J.), entered August 9, 2017, which, to the extent appealed from as limited by the briefs, denied that part of defendant New York City Housing Authority's (NYCHA) motion for summary judgment dismissing plaintiff's trespass claim, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint. Plaintiff's cross appeal from aforesaid order, unanimously dismissed, without costs, as abandoned.
NYCHA was entitled to summary judgment dismissing plaintiff's claim for trespass. There was no evidence that NYCHA knew, when it fumigated plaintiff's upstairs neighbor's apartment, that its acts would cause the "immediate or inevitable" intrusion of fumes into any other apartment (Phillips v Sun Oil Co., 307 NY 328, 331 [1954]), or that there was a substantial certainty that the fumes would permeate into plaintiff's apartment (Berenger v 261 W. LLC, 93 AD3d 175, 181 [1st Dept 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 9, 2019
CLERK