Opinion
9812 9812A Index 114244/09
07-09-2019
Guinette HARRISON, Plaintiff–Respondent–Appellant, 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.
Herzfeld & Rubin, P.C., New York (Sharyn Rootenberg of counsel), for appellant-respondent.
Renwick, J.P., Gische, Kapnick, Singh, JJ.
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 (N.Y.CHA) 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 N.Y. 328, 331, 121 N.E.2d 249 [1954] ), or that there was a substantial certainty that the fumes would permeate into plaintiff's apartment ( Berenger v. 261 W. LLC, 93 A.D.3d 175, 181, 940 N.Y.S.2d 4 [1st Dept. 2015] ).